Licence Appeal Tribunal File Number: 22-004108/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:
Mohamed Abdulle
Applicant
And
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Gareth Neilson
APPEARANCES:
For the Applicant: Anna Rezaei, Counsel
For the Respondent: Kristofer B Angle, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohamed Abdulle, the applicant, was involved in an automobile accident on June 13, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the time of the accident, the applicant was 85 years old and had a significant pre-accident medical history. The applicant was diagnosed with Parkinson’s Disease, benign prostatic hypertrophy, left bundle branch block, angina and anxiety. Additionally, the applicant suffers from occasional neck and back pain. After the accident occurred, the applicant was taken to the hospital where he was diagnosed with back pain and told to take Tylenol.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 11, 2020 to June 13, 2022?
ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week.
5The respondent is not liable to pay an award.
6The applicant is not entitled to interest.
ANALYSIS
Non-Earner Benefit (NEB) test
7Section 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.
The applicant is not entitled to a NEB
8The applicant has failed to meet the test found in Heath of a complete inability to carry on a normal life and therefore the application for NEB is denied.
9The applicant relies on reports by Dr. Dahir Hashi, Dr. Abdullahi Berih, Dr.
Krajewski, and Dr. Andrei Kozlowski. The applicant argues that the NEB test has been met because he has been significantly limited in the performance of his daily activities such as self-care, household, and religious/recreational/social activities. Furthermore, the applicant argues that the activities of daily living have been impacted by the accident as the applicant cannot continuously engage in normal activities. The applicant points to both the OCF-3 by Dr. Hashi and the report by Dr. Kozlowski, who both opined that the applicant met the test for NEB. Specifically, the applicant points to Dr. Kozlowski’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, as a substantive reason for warranting NEB.
10The respondent relies on reports from Dr. Loritz, Robert Campos (OT), Kelly Tenn and Dr. Oshidari. The respondent argues that OT Campos found that the applicant was independent with self care both pre and post accident. The same report opined that the applicant has similar pre and post accident social activities, which were only limited post accident because of the Covid-19 pandemic. The respondent argues that Dr. Loritz supports the findings of OT Campos because Dr. Loritz found that the applicant was independent with his activities of daily living and that the applicant’s pain and mobility issues were likely a result of age-related degenerative changes. Ms. Tenn also noted after their assessment that the applicant was independent with activities of daily living. The respondent argues that the medical evidence shows that while the applicant does have some medical challenges, the applicant fails to meet the complete inability test necessary to qualify for NEB.
11I prefer the evidence and arguments of the respondent. While I am convinced that the applicant has some medical conditions that could be attributed to the subject accident, the complete inability test found in Heath simply has not been met. The clinical notes and records show that the applicant does have some changes in activities of daily living pre and post accident. The applicant submits that they were able to conduct personal care tasks, engaged in household chores and had an active social life. The applicant also submits that they could drive pre-accident. Post-accident, the applicant argues that they’re limited in self-care tasks, has limited ability to complete household tasks and has poor socialization. However, there is no evidence that the applicant suffers from a complete inability to carry on a normal life as a result of these changes. The applicant’s age and significant pre-accident medical history is also a challenge because it is difficult to determine whether the changes in the applicant’s activities of daily living can be attributed to his accident-related injuries or are simply a natural degeneration of a person due to age. While I am alive to the challenges faced by the applicant, the test to qualify for NEB is a high bar to meet, and the applicant has not proven that they meet this test.
12The applicant does not meet the test for NEB and therefore the request is dismissed.
Interest
13Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant’s claim for a NEB has been dismissed, no interest is due.
Award
14The 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. No award is granted as the request for NEB has been dismissed.
ORDER
15I order the following:
i. The applicant’s request for NEB is denied.
ii. No interest is due.
iii. The request for an award is denied.
iv. The application is dismissed.
Released: January 20, 2025
Gareth Neilson
Adjudicator