Licence Appeal Tribunal File Number: 24-005613/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Simon Tong
Applicant
and
CAA Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Mitchell Barber, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Simon Tong, the applicant, was involved in an automobile accident on May 13, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
1. Is the applicant entitled to a Non-Earner Benefit (“NEB”) of $185.00 per week from June 10, 2023 to May 13, 2025?
2. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant is not entitled to an NEB.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
ANALYSIS
Is the applicant entitled to an NEB
4I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB.
5Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
6The applicant submits that he is unable to “genuinely” engage in any of the activities of his pre-activity activities as a result of his accident-related injuries. He submits that his injuries from the May 13, 2023 accident exacerbated his physical and psychological symptoms from previous accidents in 2019, and 2021. The applicant relies on the OCF-3 of Ahmed Afifi, physiotherapist, dated June 13, 2024, the clinical notes and records (“CNRs”) of his family physician, Dr. Berwin Yip, the psychological consultation report of Ms. Mandy Fang, registered psychotherapist, under the supervision of Dr. Svetlana Gabidulina, psychologist s.25 psychological assessment conducted by Ms. Yvonne Ma, registered psychotherapist, under the supervision of Dr. Gabidulina.
7The respondent argues that the applicant is not eligible to receive an NEB in accordance with Section 12(1)(1) or s.12(3)(d) of the Schedule, because he was receiving an income Replacement Benefit (“IRB”) from a previous accident at the time of the accident. The applicant’s IRB was terminated on January 26, 2024.
8Section 12(1)(1) provides that to be eligible for an NEB, an insured person must have a complete inability to carry out a normal life within 104 weeks of the accident and does not qualify for an IRB. Section 12(3)(d) provides that an insurer is not required to pay an NEB, if the insured person is qualified to and has elected to receive an IRB.
9I note that the OCF-3 submitted into evidence by the applicant is dated June 13, 2024, after the applicant’s IRB was terminated and within 104 weeks of the May 13, 2023 accident. As such, I am not persuaded that the applicant was eligible for, or receiving an IRB at the time the applicant’s application for an NEB was completed.
10The respondent further argues that the applicant has not met his onus to prove that he has a complete inability to carry on a normal life. The respondent relies on the s.44 insurer examination (“IE”) psychiatry report of Dr. Robert Weinstein, psychiatrist, dated November 28, 2024, the IE occupational therapy report of Pooja Joshi, occupational therapist dated November 20, 2024, and the IE neurology assessment report of Dr. Jeremy Spevick, neurologist, dated November 22, 2024, who all opined that the applicant did not suffer from a complete inability to carry on a normal life as a result of the applicant’s injuries from the May 13, 2023 accident.
11I agree with the respondent. The applicant was involved in 2 previous accidents in 2019 and 2021, and a subsequent accident in December 2023. The applicant has not explained what the applicant’s daily activities were prior to the May 13, 2023 accident, nor specified which of his activities he is no longer able to carry out since the accident. Further, the applicant has not directed me to any evidence that he sought medical treatment after until he visited his family doctor three months after the accident. Dr. Yip’s August 10, 2023 CNRs reveal that the applicant told Dr. Yip that he had an accident on May 13, 2023, but that the accident was minor and he “did not feel any symptoms after May 13.”
12The balance of the medical evidence submitted by the applicant for this hearing dates from January 2024, or later, after the December 2023 accident. The applicant submits that Dr. Yip referred him to a neurologist, Dr. Chern Lim, who referred the applicant for physiotherapy to treat his pain symptoms. I find that Dr. Chern’s letter to Dr.Yip sheds no light on the May 13, 2023 accident and its impact on the applicant’s function, as it refers only to the applicant’s previous November 2019 accident and the subsequent accident in December 2023, and is silent on the applicant’s function.
13The applicant further relies on his self-reports to his psychological assessors, which I find inconsistent. For example, the applicant told Ms. Fang, at his January 24, 2024 interview that he had been employed full-time as a property manager prior to the accident, but told Ms. Ma that he had not fully recovered from his previous 2019 and 2021 accidents, and mentioned having four accidents in four years, including his subsequent December 13, 2023 accident, as a contributor to his psychological symptoms.
14I assign little weight to the psychological report and assessment, because there is no indication that the assessors reviewed any of the applicant’s medical records. As the consultation report does not reference any of the other three accidents, and the psychological assessment report does not clearly delineate the impact of the May 13, 2023 accident on the applicant’s activities of daily living, the reports are not helpful in my analysis.
15I assign more weight to Dr. Weinstein’s November 28 IE. Dr. Weinstein conducted an in-person clinical interview, a review of the applicant’s medical records, and psychometric testing and diagnosed the applicant with “Persistent Depressive Disorder with anxious distress, mild to moderate severity,” Dr Weinstein opined that the applicant that there was “no evidence at this time” that the applicant had a complete inability to carry on a normal life, because the applicant continued to drive, was mostly independent in his personal care, participated in physiotherapy and exercise at a gym, and visited with former colleagues on a weekly basis.
16For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to an NEB.
Interest
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
Award
18The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
19The applicant submits that the respondent is liable to pay an award because it unreasonably denied benefits to the insured. I disagree. I found above that the applicant has not met his onus to prove his entitlement to the NEB sought in his application, and the applicant has not pointed or directed me to evidence that the respondent has behaved in a manner that rises to the level of being excessive, imprudent, inflexible, or unreasonable.
20For these reasons, I find that the applicant is not entitled to an award.
ORDER
21I find that:
The applicant is not entitled to an NEB.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
Released: December 17, 2025
__________________________
Kathleen Wells
Adjudicator