Licence Appeal Tribunal File Number: 23-007978/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:
Sumitava Saha
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Kevin Kovalchuk
APPEARANCES:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Wendy Breuer, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sumitava Saha, the applicant, was involved in an automobile accident on October 21, 2022, 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, TD General 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:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 19, 2022, to ongoing?
ii. Is the applicant entitled to $268.82 for a medication expense, submitted on a claim form (OCF-6) dated January 16, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits.
RESULT
3The applicant is not entitled to a non-earner benefit of $185.00 per week from November 19, 2022, to ongoing.
4The applicant is not entitled to $268.82 for a medication expense, submitted on a claim form dated January 16, 2023.
5The respondent is not liable to pay an award under s. 10 of Regulation 664.
6As there are no overdue benefits payable, the applicant is not entitled to interest.
ANALYSIS
Entitlement to Non-Earner Benefit (NEB)
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) 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 an NEB.
8I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB.
9The applicant submits that a Disability Certificate dated September 30, 2023, from Dr. Georgina Palantzas, Chiropractor, indicates that the applicants physical and psychological impairments are a direct result of the subject motor vehicle accident and indicate his inability to return to a normal life.
10The Disability Certificate notes that, the applicant appears to have difficulty with sustained postures, standing, walking, sitting, bending, lifting, carrying, pushing, squatting and overhead activities. It notes that the applicant has a decrease in housekeeping capacity. It also notes that prior to the accident the applicant had injuries from two previous motor vehicle accidents that affected his ability to perform the activities previously mentioned.
11The applicant further submits that the applicant’s pre and post accident activities have been significantly affected and that he does very little in the day and this is a significant change from his pre-accident activity. The applicant relies on the Clinical notes and records of Dr. Low and Dr. Kakar in support of his position.
12The respondent submits that the applicant has not sustained an impairment that prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
13The respondent points to the s. 44 reports of Dr. Jennifer Gordon, Physiatrist, dated October 26, 2023, Dr. Daniel Cohen, Psychologist, dated November 23, 2023, and Ms. Dawn Li, Occupational Therapist, dated November 23, 2023, as well as a surveillance report dated September 20, 2023, in support of its position.
14The respondent also submits that the applicant has provided no evidence to support his submission that the accident has caused a significant change from his pre-accident activities.
15The report of Dr. Gordon indicates that before the subject accident the applicant “required assistance with his personal care including dressing and occasionally ambulating (due to two prior MVA’s in 2017)”. Dr. Gordon also notes that by his own admission the applicant continues to participate in the majority of his self-care tasks and some of his pre-accident household tasks.
16Dr. Gordon opines that “from a musculoskeletal perspective and consistent with the concurrent occupational assessment, the applicant does not suffer a complete inability to carry on a normal life as a result of the accident in question”.
17The applicant underwent an Occupational Therapy In Home Assessment on September 25, 2023, by Dawn Li, Occupational Therapist. Ms. Li reported that “based on formal and functional testing completed by this therapist on September 25, 2023 and taking into account Mr. Saha’s own verbal report of his pre- and post daily routine and functional abilities, it is this therapist’s opinion, from an occupational therapy and physical and functional perspective , Mr. Saha did not sustain an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.”
18Dr. Cohen met with the applicant on November 7, 2023, and administered a number of psychological tests. Dr. Cohen opined that from a psychological perspective the applicant did not have impairments that would continuously prevent him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
19An Investigative report from Xpera Investigations indicated that surveillance of the applicant was conducted over four days: Friday, August 11, 2023, Tuesday, August 15, 2023, Tuesday, September 5, 2023, and Saturday, September 6, 2023.
20On August 11, 2023, the applicant was observed and photographed at his residence in Scarborough, Ontario at approximately 6:41 a.m. carrying a large duffel bag in his right hand and a white grocery bag in his left hand which he loaded into the rear of a red Toyota Rav 4. At 6:53 a.m. he was observed and photographed carrying two large duffel bags from his residence to his vehicle. He then placed both bags in the rear of his vehicle. At 7:04 a.m. he was observed and photographed retrieving a green waste bin from the curb in front of his home. He bent over at the waist and grasped the bin with his left hand. He then pulled the bin up the driveway and out of view to the north side of his residence. Between 7:40 a.m. and 9:39 a.m. he was observed driving from his residence to a Pioneer Gas station located at 5619 Stanley Avenue in Niagara Falls Ontario where he fuelled his vehicle. He then continued travelling to Fort Erie Ontario stopping for approximately 30 minutes at a Tim Hortons in Niagara Falls. He also stopped for approximately six minutes at a Days Inn, in Niagara Falls where he was photographed inspecting the underside of his vehicle. Surveillance was discontinued at 11:10 a.m. when the applicant crossed into United States via the Peace Bridge at Fort Erie.
21On Tuesday September 5, 2023, at 9:56 a.m. the applicant was observed driving from his residence to a FreshCo grocery store on Mc Cowan Road in Scarborough. In the grocery store the applicant was observed and photographed sorting through a bin of cantaloupes and watermelons, bending at the waist, reaching to the bottom of the bins, lifting melons out of the bins and placing them on the floor or in bags. At 10:17 a.m. he was observed and photographed exiting the store carrying two boxes which he placed in his vehicle. He then returned to the store and was observed and photographed exiting the store carrying a large reusable grocery bag in his right hand. He placed the bag in the back of his Toyota Rav 4 lifting the bag to chest height to place it in the vehicle. At 10:35 a.m. he again re-entered the store and emerged carrying a 10-pound bag of potatoes which he placed in the back of his vehicle using his right hand. He then closed the back hatch of his vehicle remotely, walked to the driver’s door, opened the door with his left hand and entered the driver’s seat pulling the door closed with his left hand.
22I have provided what I find to be the most salient findings of the surveillance report as it is a lengthy 46 pages. In any case, I find that there is limited evidence in the surveillance report demonstrating that the applicant suffers from impairments that result in a complete inability to carry on a normal life.
23I find that the clinical notes and records of the applicant’s own physician Dr. Low are equally unhelpful in providing any information with respect to the applicant’s pre and post accident activities or how these activities have changed since the accident to satisfy the requirements of Heath.
24In a clinical note and record dated July 27, 2023, Dr. Kakar notes that the applicant was able to do some activities of daily life, such as driving and had no problem with hygiene or grooming.
25In a clinical note and record dated March 14, 2024, Dr. Kakar noted that the applicant’s energy was “not bad and he is able to do things”. Dr. Kakar also noted again that the applicant was able to maintain hygiene and grooming.
26I find the notes of Dr. Kakar do not help the applicant to meet his onus, as they are not supportive of a complete inability to carry on a normal life as a result of the subject accident.
27I find the reports of Dr. Gordon and Dr. Cohen together with the report of Ms. Dawn Li and the surveillance report, to be persuasive in showing that the applicant has not met his onus of establishing on a balance of probabilities that he is entitled to an NEB. I make this finding because these reports do not document or show a complete inability of the applicant to carry on a normal life, which is a requirement of section 12(1) of the Schedule for NEB entitlement.
The applicant is not entitled to $268.82 for a medication expense submitted on a claim form (OCF-6) dated January 16, 2023.
28To receive payment for a medication expense under s. 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the expense is reasonable and necessary as a result of the accident.
29The medications claimed are Bupropion, Trazadone, Effexor, and Gabapentin.
30The applicant submits that the medications address the applicant’s physical pain and injuries and as such are reasonable and necessary and should be paid by the respondent.
31The respondent submits that the applicant has not provided any evidence to show that he required the medication as a result of the accident but rather as a result of medical conditions that pre-date the accident.
32The applicant has not provided the Tribunal with any other submissions as to why this expense is reasonable and necessary. I find that the applicant’s short statement that the medications address the applicant’s physical pain and injuries and as such are reasonable and necessary is unhelpful in meeting the applicant’s burden as to why these expenses are reasonably and necessary.
33I therefore find the applicant has not met his onus of showing on a balance of probabilities that this expense is reasonable and necessary.
No Interest is payable.
34As there are no overdue benefits payable the applicant is not entitled to interest.
The applicant is not entitled to an award pursuant to Regulation 664.
35Section 10 of Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled.
36It is well-settled that in order for an award to be made, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.
37The applicant submits that the respondent has not acted in good faith and that a special award is called for “in order to investigate the reasonableness of the denials and provide deterrence to Insurers In acting in a high-handed manner”.
38The respondent submits that it acted reasonably in adjusting the claim based on the medical evidence provided by the applicant as well as s. 44 assessments.
39I find the applicant failed to meet his burden of proving entitlement to the benefit in dispute and therefore the respondent did not unreasonably withhold payment of the benefit to the applicant. I find that the applicant has not met his onus to demonstrate, on a balance of probabilities that, the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate way and therefore the applicant is not entitled to an award.
ORDER
40As a result of the above and on a balance of probabilities I find that:
i. The applicant is not entitled to a non-earner benefit of $185.00 per week from November 19, 2022, to ongoing.
ii. The applicant is not entitled to the OCF-6 in dispute.
iii. As there are no overdue benefits payable the applicant is not entitled to interest.
iv. The applicant is not entitled to an award pursuant to Regulation 664.
41The application is dismissed.
Released: August 28, 2025
Kevin Kovalchuk
Vice-Chair