Clarke v. Aviva General Insurance, 2025 CanLII 1856

Citation: Clarke v. Aviva General Insurance, 2025 ONLAT 23-002452/AABS

Licence Appeal Tribunal File Number: 23-002452/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:

Mavis Clarke

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Thomas Zwiebel, Counsel

For the Respondent: Branson Wong, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Mavis Clarke, the applicant, was involved in an automobile accident on March 2, 2020, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 30, 2020 to March 2, 2022?

RESULT

3The applicant has not demonstrated she is suffering from an injury or impairment warranting removal from the MIG.

4The applicant is not entitled to a NEB.

ANALYSIS

Minor Injury Guideline

5I find that the applicant has not proven, on a balance of probabilities, that she suffers from an injury or impairment that would warrant removal from the MIG.

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

8Despite being a live issue in dispute, the applicant has not made submissions on this issue for me to consider. Moreover, while the respondent raised this issue in its submissions, the applicant did not provide any reply submissions. Therefore, I find that the applicant has not met her onus in demonstrating, on a balance of probabilities, that she has an injury or impairment warranting removal from the MIG.

Non-Earner Benefit

9I find that the applicant is not entitled to a NEB.

10Section 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.

11The applicant submits that Disability Certificate (“OCF-3”) dated June 11, 2020, completed by her family physician, Dr. Alan Bell, confirms the applicant suffers from a complete inability to carry on a normal life due to ongoing back pain which precludes her from repetitive bending and lifting. The applicant also submits that prior to the accident she was responsible for household chores including cooking, doing dishes/laundry, and cleaning, however, post-accident she is not able to clean the house but is able to complete lighter tasks.

12The respondent submits that the applicant has not met her onus in proving that she has sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. To support its position, the respondent relies on the s. 44 musculoskeletal assessment of Dr. Seung-Jun Lee, dated November 1, 2021, and s. 44 occupational therapy assessment of Ms. Anghela Sivananthan, dated November 1, 2021.

13Although the applicant relies on the OCF-3 to establish that she suffers from a complete inability to carry on a normal life, there must be contemporaneous evidence, as an OCF-3 alone is not sufficient to establish entitlement to NEBs. In the present case, I find that the evidence does not support she has an inability to carry on a normal life as defined by s. 3(7)(a) of the Schedule.

14While the applicant submits that she is not able to clean the house, she also submits that she is able to complete lighter tasks. I find that this does not satisfy the test under Heath, wherein the applicant must demonstrate that the impairment continuously prevents her from in engaging in substantially all of the activities that she ordinarily engaged before the accident. This is because, by the applicant’s own submissions, she is able to engage in “lighter tasks”. While the applicant does not expand on what that these “lighter tasks are", I find the evidence of Ms. Sivananthan shows the applicant reported she has resumed driving, continues to see/speak to her friends and family, attends church, and cooks albeit not as often as before. Additionally, the report of Dr. Lee shows the applicant reported independence with self-care activities including toileting, dressing, undressing, and feeding, at the time of his assessment. Dr. Lee subsequently opined that he did not identify any accident-related impairments that would cause a complete inability to carry on a normal life. The applicant has not provided any other examples, in her submissions, of what pre-accident activities of daily living she is substantially unable to engage in, or more importantly, demonstrated how her engagement in these activities has changed as a result of the accident.

15Moreover, I am not persuaded by the applicant’s argument that the respondent was provided with a copy of the clinical notes and records (“CNRs”) of her family physician, Dr. Alan Bell, and x-ray of her pelvis and lumbar spine, dated March 14, 2020, but chose “not to conduct an addendum.” The x-ray revealed multilevel degenerative changes with disc height loss and disc vacuum phenomenon, as well as degenerative sclerotic endplate changes most pronounced at T9-T10, T10-11, T12, and T12-L1. However, I do not find that this medical imaging or the CNRs of Dr. Bell speak to an inability to substantially engage in her pre-accident activities. As mentioned above, the reports of Dr. Lee and Dr. Sivananthan show that the applicant reported to be able to engage in a significant amount of daily activities, despite not having these records.

16I also find that the CNRs of Optimal Rehabilitation Centre Inc. do not establish that the applicant was substantially unable to engage in all of her pre-accident activities. Although the applicant presented on March 17, 2020, with complaints of low back pain with difficulty getting into bed, difficulty dressing the lower extremities and difficulty moving from sitting to standing during toileting, a later entry dated June 28, 2021, reported that the applicant is independent in personal care and was able to walk. While the entry dated June 28, 2021, reports that the applicant “acted as a caregiver intermittently for grandchildren and due to back pain her duties were interrupted” I find that it is not clear from the evidence before me whether the applicant engaged in this activity prior to the accident. The applicant does not make any submissions with respect to this purported limitation. In any event, in her submissions, the applicant did not identify her pre-accident activities, other than cleaning, or provide evidence of how she is continuously prevented from engaging in said activities as required by Heath. In the absence of this information and evidence that supports it, I am unable to adequately compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in.

17The parties also make submissions with respect to the period of the NEBs in dispute, however, having found that the applicant is not entitled to an NEB, I have not considered these arguments.

18In sum, while I acknowledge that the evidence supports the applicant is limited in her ability with cleaning, the applicant has not directed me to any compelling evidence that speaks to an impairment that continuously prevents her from engaging in substantially all of the activities she ordinarily engaged prior to the accident. As such, I find that the applicant has not proven, on a balance of probabilities, that she is entitled to a NEB.

Interest

19The applicant made submissions seeking interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule, but this issue was not included within the Case Conference Report and Order dated October 4, 2023, as an issue in dispute. In any event, as there are no overdue benefits, the applicant is not entitled to interest.

ORDER

20I find that:

i. The applicant has not demonstrated she is suffering from an injury or impairment warranting removal from the MIG.

ii. The applicant is not entitled to an NEB.

iii. The application is dismissed.