Citation: Munhader v. Zenith Insurance Company, 2026 ONLAT 24-008562/AABS

Licence Appeal Tribunal File Number: 24-008562/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:

Aymen Al Munhader

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Alan J. Clausi, Counsel

For the Respondent:

Farid Mahdi, Counsel
Riley Groskopf, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Aymen Al Munhader, the applicant, was involved in an automobile accident on December 26, 2021, 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, Zenith 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. 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 the services and assessments proposed by Neuromotion Therapy Centre, as follows:

a. $2,294.54 for a psychological assessment, in a treatment plan submitted on March 19, 2022;

b. $2,253.95 for psychological services, in a treatment plan dated May 15, 2022; and

c. $1,995.50 for an occupational therapy in-home assessment, in a treatment plan submitted on July 26, 2022?

iii. Is the applicant entitled to $11,752.00 for catastrophic impairment assessments, proposed by Capital Vocational Specialists, in a treatment plan submitted on June 6, 2024?

iv. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 11, 2023 to December 26, 2023?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.0 funding limit for a minor injury.

4The applicant is not entitled to the treatment plans in dispute, nor interest.

5The applicant is not entitled to a non-earner benefit of $185.00 per week.

6The respondent is not liable to pay an award.

PROCEDURAL ISSUES

Submissions do not comply with the filing requirements

7The respondent submits that the applicant’s submissions used 11.5 point font and are not double spaced. It claims that the applicant has manipulated spacing and font size to subvert the parameters agreed to by the parties at the Case Conference. As a result, for the sake of procedural fairness, the respondent’s submissions mirror the applicants in format.

8The applicant in his reply submissions states that his submissions used 12-point font and inadvertently used 1.5 spacing instead of double-spaced. He submits that the respondent’s submissions are 11-point font, 1.5 spaced, .9-inch-wide margins, and 18 pages long.

9The Case Conference Report and Order (“CCRO”), dated October 28, 2024, states that the submissions of the applicant and the respondent are limited to 15 pages. It further states all submissions, evidence and authority briefs filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5 inch margins.

10I find that neither party’s submissions comply with the CCRO. With respect to the page limits, the applicant’s submissions are 15 pages plus three pages of footnotes. The respondent’s submissions are 18 pages in length.

11I further find that both parties have used 1.5 spacing instead of double-spacing in contravention of the CCRO. I find that the applicant used 12-point font while the respondent used 11.5-point font.

12The CCRO indicates that the hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements. I find that the applicant first breached the CCRO by going over the page limit and decreasing its spacing. The respondent in response mirrored the applicant’s submissions and specifically set out in its submissions the reason for its non-compliance. I find that neither party sought an order from the Tribunal for additional pages prior to making its submissions, nor did it attempt to remedy its non-compliance by filing a motion with its submissions to request additional pages. Parties must not be encouraged to disregard the Tribunal orders. However, in procedural fairness to both parties, as I find that both parties have contravened the CCRO, I will not strike either of their submissions on this basis.

Failure to submit a Declaration of Representative

13The respondent submits that the applicant’s submissions were authored by Alan Clausi of Clausi Law, who delivered a Declaration of Representative and Robert Seredynski of Will Trial Lawyers, who has not. The respondent submits that it was never aware of Mr. Seredynski’s involvement in the matter until the applicant filed his submissions. The respondent therefore asks the Tribunal not to recognize Mr. Seredynski unless a completed Declaration of Representative form is filed and served.

14The applicant in his reply submits that Mr. Seredynksi assisted with the submissions and is recognized as a professional courtesy but is not named as the applicant’s representative.

15Pursuant to Rule 24.20 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”), if a party wishes to have a representative, the representative must: (a) file with the Tribunal the form for the declaration of a representative provided on the Tribunal’s website, and (b) serve a copy of the form on all other parties.

16I find that despite the respondent’s submissions on this issue, the applicant did not subsequently serve a Declaration of Representative from Mr. Seredynski. Instead, the applicant left Mr. Seredynski’s name off of the reply submissions. Based on this action, I find that Mr. Seredynski is not the applicant’s representative and I agree to leave Mr. Seredynski’s name off of this decision.

Exclusion of the Examination Under Oath (“EUO”)Transcript

17The respondent requests that the EUO Transcript of the applicant dated April 17, 2022, be excluded as evidence in this dispute. It claims that the EUO dealt with a priority dispute and therefore is not relevant to the issues in dispute in this matter.

18The applicant submits that the EUO Transcript contains evidence relevant to the issues in dispute as it provides evidence of the applicant’s pre-accident and post-accident activities.

19In deciding this issue, the Tribunal must focus on the relevancy of the transcripts and the evidence of prejudice to either party from the inclusion or exclusion of the evidence.

20I find that the applicant referred to the EUO Transcript at paragraph 6 of his submissions to support his part-time employment during school and who he lived with at the time of the accident. I find that this evidence is relevant to the issues in dispute and reliance on the EUO Transcript to support the applicant’s submissions is reasonable and I am not persuaded of any prejudice to the respondent. I therefore do not agree to exclude the EUO Transcript.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

21I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

22Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

23An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

24In this matter, the applicant submits that he should be removed from the MIG because he suffered a concussion, chronic pain and a psychological impairment in the subject accident.

The applicant is not removed from the MIG on the basis of a concussion

25I find that the applicant has not demonstrated that he suffered a concussion that would warrant removal from the MIG.

26I find that the applicant has not provided persuasive evidence to support his claim that he suffered a concussion. The Ambulance Call Report notes that the applicant “did not hit his head, no loss of consciousness”. The Emergency Records from Children’s Hospital of Eastern Ontario (“CHEO”) Emergency Department further note, “No c/o head pain”. I give the most weight to the Clinical Notes and Records (“CNRs”) of the applicant’s family physician, Dr. Edith Abou-Said, which do not indicate that the applicant suffered a concussion, following the accident. Despite the applicant being assessed by Dr. Abou-Said on multiple occasions post-accident, there is no reference in the CNRs that the applicant hit his head in the accident, or that he complained of any concussion-like symptoms following the accident. I find that the first reference to a concussion in Dr. Abou-Said’s CNRs is on May 16, 2024, when she states, “Hx of concussion”. I find that there are no further particulars provided in this CNR or discussion of any concussion related symptoms to support that Dr. Abou-Said is making a diagnosis of concussion.

27I give little weight to the CNRs of Dr. Benjamin Matheson, chiropractor, which the applicant submits support the diagnosis of concussion. While the diagnosis of concussion is indicated throughout these records, there is no evidence that neurological testing was performed to assess whether the applicant suffered a concussion or that any treatment was performed in respect to his concussion symptoms.

28For the reasons outlined above, I find on a balance of probabilities that the applicant is not removed from the MIG on the basis of a concussion.

The applicant is not removed from the MIG on the basis of chronic pain

29I find that the applicant has not demonstrated that he suffers from a chronic pain condition that would warrant removal from the MIG.

30While it is not part of the Schedule, the Tribunal has generally accepted the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”) when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; development of psycho-social sequelae after the initial incident; excessive dependence on healthcare providers, spouse or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability. Alternatively, the Tribunal has accepted that chronic pain is not a minor injury when the pain causes a functional impairment.

31The applicant submits he suffers from chronic pain as a result of the accident. He submits that his family physician, Dr. Abou-Said, knew his condition best as she was the applicant’s treating doctor before the collision. He submits that Dr. Abou-Said diagnosed him with chronic back pain, chronic right hip pain, chronic foot pain and chronic headaches. The applicant further submits that the OCF-3 and treatment records of Dr. Matheson diagnose severe physical injuries.

32The respondent submits that ongoing pain complaints alone do not warrant treatment outside the MIG. The respondent submits that the applicant’s visits to Dr. Abou Said have been sparse since the accident. It further submits that the CNRs from Neuromotion only support attendance by the applicant for a total of 17 sessions. It argues that to date no treatment plan has been submitted by Neuromotion proposing physical rehabilitation. Similarly, while the applicant submits that he began attending for treatment at Artemis Wellness Centre, no treatment plan has been submitted to date. The respondent relies upon the IE reports of Dr. Mohammed Abudl Wahab Khan, physiatrist, dated September 7, 2022 which found that the applicant’s injuries are consistent with sprain/strain injuries which would be considered minor. The respondent further submits that the applicant does not meet three out of six of the criteria in the AMA Guides.

33I do not find that the CNRs of Dr. Abou-Said support that the applicant suffers a chronic pain condition as a result of the accident. I find that the applicant initially complained of right knee and ankle pain following the accident on February 4, 2022. On March 24, 2022, he returned with complaints of right ankle and foot dysfunction at which time it was recommended he use orthotics and he was referred to MedSport. The notes indicate that he never made an appointment with the clinic. While the applicant’s mother reported to Dr. Abou-Said on May 30, 2022 that he was having pain in his neck and the right side of his body since the car accident, the applicant did not attend for an assessment of these complaints until November 16, 2022. The CNR notes that the applicant has “back pain – scoliosis and sexual concerns”. The applicant does not return to see Dr. Abou-Said with any physical complaints until May 18, 2024 when Dr. Abou-Said notes “chronic back pain, right hip, right ankle, right foot” and refers him to Athlete’s Care Sports and the Acquired Brain Injury Clinic at Ottawa Hospital. I note that he never attended the scheduled appointment at Athlete’s Care Sports and the referral was rejected by Ottawa Hospital.

34I find based on the CNRs of Dr. Abou-Said that the applicant made limited physical complaints following the accident. In addition, there is a gap in records between November 16, 2022 and May 18, 2024 for which the applicant has not provided any submissions or explanation. I do not find that Dr. Abou performed a physical assessment of the applicant on May 18, 2024, as there are no notations of an assessment being performed or her findings. I find that there is simply a statement that he suffers chronic back pain, right hip, right ankle and right foot pain. I do not find this sufficient to support that the applicant suffers a chronic pain condition as a result of the accident. In addition, while referrals for further treatment are made by Dr. Abou-Said, the applicant did not attend the scheduled appointments, and no further records are subsequently provided.

35Other than Dr. Abou-Said’s CNR dated May 18, 2024, the applicant has not pointed or directed me to evidence where a health practitioner diagnosed him with a chronic pain condition. Likewise, he has not pointed or directed me to evidence to support his claim that he suffers from a functional impairment as a result of the accident.

36I give more weight to the IE report of Dr. Khan, physiatrist, dated September 7, 2022, where a complete physical assessment was completed, and the medical records were reviewed in conjunction with the findings. I accept Dr. Khan’s conclusion that from a physical perspective, the applicant’s accident-related injuries are consistent with sprain/strain injuries, which would be considered minor.

37I further find that the applicant has not made any submissions about the criteria in the AMA Guides. However, based on the medical evidence submitted, I find that he does meet the three out of six of the criteria for a chronic pain condition. The applicant does not claim to use prescription medical or other substances. The applicant does not regularly visit with healthcare practitioners as demonstrated in the CNRs of Dr. Abou-Said. Thus, I find that he is not dependent on them. None of the medical information before me suggests that the applicant has deconditioned due to disuse. There is no evidence that the applicant has withdrawn from social milieu or failed to restore his pre-accident function. While the applicant may have developed psycho-social sequalae, these complaints are minimal, and he never engaged in treatment or medication for those symptoms.

38For the reasons outlined above, I find the applicant has not met his onus of proving on a balance of probabilities that he should be removed from the MIG on a basis of a chronic pain condition.

The applicant is not removed from the MIG on the basis of a psychological condition

39I find that the applicant has not demonstrated that he suffers from a psychological condition that would warrant removal from the MIG.

40The applicant submits that he suffers a psychological impairment as a result of the accident. He relies upon the Psycholegal Assessment report of Dr. Tammie Ricci, psychologist, dated February 12, 2024, where he was diagnosed with somatic symptom disorder, predominantly, pain, chronic; major depressive disorder with anxious distress, moderate to severe; and unspecified anxiety disorder (post-traumatic stress disorder (“PTSD”) features, generalized anxiety symptoms, panic attacks and vehicle-related anxiety). He further relies upon the CAT Report prepared by Dr. Emily Gavett-Liu, psychologist, dated November 29, 2024, which diagnosed him with somatic symptom disorder, with predominant pain, persistent, severe; and major depressive disorder, with anxious distress.

41The respondent submits that the applicant has not made a single psychological or emotional complaint to his family doctor. It argues that the applicant only made these complaints to the s. 25 assessors, Dr. Ricci and Dr. Gavett-Liu, who based their reports largely on the self-reporting and collateral interview. The respondent relies upon the IE reports of Dr. Christopher Cooper, psychologist, dated August 6, 2022, April 6, 2023 and April 29, 2024, which concluded that the applicant did not suffer a psychological impairment and found validity concerns with the applicant’s psychometric test results.

42I agree with the respondent that the applicant did not make any psychological complaints to his family physician following the accident. I find that there is no mention of any psychological impairments or complaints throughout the CNRs.

43I find that the first indication that the applicant reported psychological difficulties was in the March 15, 2022 treatment plan submitted by Dr. Mohamed Bekkari, recommending a psychological assessment. Under Additional Comments, it notes that the applicant completed a brief psychological screening measure which indicates severe symptoms of depression, generalized anxiety and signs of trauma related distress symptoms. The treatment plan was denied by the respondent on August 18, 2022, based on the IE report of Dr. Cooper, dated August 9, 2022.

44Upon review of the IE report of Dr. Cooper, dated August 9, 2022, I note that there were two examinations conducted, with the second lasting an hour and a half in the presence of an interpreter to assist with the psychometric test administration. I find upon review of Dr. Cooper’s report, that he found that the applicant’s Personality Inventory for Youth (“PIY”) profile reveals significant elevation of Dissimulation Scale which in turn suggests an atypical mode of response to the test items that is indicative of symptom exaggeration. He therefore concluded that a DSM-5 psychological diagnosis could not be made because the applicant’s profile is not deemed to be valid and subject to interpretation. I find that Dr. Cooper subsequently prepared a second Psychological IE report, dated April 6, 2023, in respect to the applicant’s entitlement to IRBs. Again Dr. Cooper found that the applicant’s PIY profile reveals significant elevation of the inconsistency scale and therefore no psychological diagnosis could be made. Dr. Cooper further noted that the applicant did not make complaints from a purely psychological standpoint and that his predominant difficulties are related to his physical issues and associated pain. A third Psychological IE report was prepared by Dr. Cooper dated April 29, 2024. The report notes that after a half an hour, the test materials were provided to the applicant, and he declined to complete the test materials or proceed with the remainder of the assessment. Therefore Dr. Cooper was unable to complete his evaluation or provide a diagnostic formulation.

45Similarly, upon review of the report of Dr. Ricci, she also found that the psychometric testing results suggest magnification of symptomatology and a significant psychological overlay to the applicant’s symptoms. Dr. Ricci administered the SIMS, a standardized, objective, multi-axial, self-administered measure developed to serve as a screening tool for the detection of feigned or exaggerated psychiatric disturbance and cognitive dysfunction. She concluded that the applicant’s results indicate the presence of possible magnification and malingering. She further administered the MMPI-3, an objective, standardized measure to assess personality and emotional functioning. The applicant’s MMPI-3 profile is considered invalid as he had a strong tendency to over-represent and magnify symptomatology. For both tests, Dr. Ricci concluded that it was difficult to discern with any degree of certainty whether there is purposeful malingering of magnification, given that the items were translated via an Arabic-language interpreter and given the applicant’s tendency to catastrophize due to pain and depression. Dr. Ricci stated in her report that the psychometric test results should be interpreted with extreme caution, as they may either over-represent or under-represent the applicant’s current emotional difficulties. However, unlike Dr. Cooper, Dr. Ricci concluded that despite these findings, the applicant suffered severe depression, severe generalized anxiety, PTSD features impacting all areas of function and vehicular anxiety.

46Both Dr. Cooper and Dr. Ricci’s use of tests with validity indices can then be contrasted with the lack of validity measures used by Dr. Gavett-Liu. Dr. Gavett-Liu states in her report that during her assessment interview, she used seven validated detection strategies to give clues about feigned mental disorders and concluded that there is no gross evidence of malingering. She stated that establishing a DSM diagnosis and AMA Guides impairment analyses do not require psychological validity testing.

47I find that the credibility of the applicant’s presentation is a useful tool for estimating the validity of the applicant’s responses. I therefore give greater weight to the reports of Dr. Cooper and Dr. Ricci where they used psychometric testing that includes validity indices. However, despite her findings of symptom magnification and questioning whether the applicant’s scores are accurate and reliable Dr. Ricci still provided a psychological diagnosis based on the self-reports of the applicant. I find that her findings are contradictory to her warning that the results of the remaining psychometric tests should be interpreted with caution.

48I therefore prefer the reports by Dr. Cooper over the report of Dr. Ricci. The findings in Dr. Cooper’s reports are a more accurate representation of the applicant’s psychological health when reviewed together with the CNRs of the family doctor and the treating physiotherapy clinic. As stated above, there are no psychological or emotional complaints in any of these records.

49For the reasons outlined above, I find the applicant has not met his onus of proving on a balance of probabilities that he should be removed from the MIG on a basis of a psychological impairment.

Entitlement to Medical and Rehabilitation Benefits

50The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.

Entitlement to a Non-Earner Benefit

51Pursuant to s. 12(1) of the Schedule, an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an 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 and (i) was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident.

Compliance with s. 36 and s. 36 of the Schedule

52Section 35(1) of the Schedule provides that if an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit, and the caregiver benefit under Part II, the insurer shall, within 10 days after receiving the application, give a notice to the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.

53Section 36 governs the procedure for claiming specified benefits. Section 36(4) provides that within 10 days of receiving an application or a completed disability certificate, the insurer must:

(a) Pay the specified benefit;

(b) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit; or

(c) Send a request to the applicant under s. 33(1) or (2).

54Section 36(6) sets out the remedy for non-compliance with s. 36(4) and (5), providing that if the insurer fails to comply with s. 36(4) or (5), it shall pay the specified benefit for the period starting on the day of receipt of the application, and ending on the day the insurer subsequently provides a compliant notice.

55The applicant submits that the respondent has failed to comply with s. 35 of the Schedule because it did not inform him that his OCF-10 was due in 30 days and misinformed the applicant that he was entitled to NEBs after a 26-week waiting period.

56The applicant’s Application for Accident Benefits (“OCF-1”), dated January 27, 2022, states that he was attending Bell High School at the time of the accident. It further states that he was employed as a labourer from September 2021 at Top Renovation and his injuries from the accident prevent him from working.

57A Disability Certificate (“OCF-3”) was submitted on behalf of the applicant by Dr. Benjamin Matheson, chiropractor, dated April 15, 2022. The OCF-3 notes that the applicant was working at Canadian Tire Centre in Kanata at the time of the accident and was enrolled in an education program. The OCF-3 notes that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment and suffers a complete inability to carry on a normal life. Disability is indicated for more than 12 weeks.

58The respondent responded to the OCF-3 by Explanation of Benefits (“EOB”) dated April 29, 2022. It advised the applicant that based on review of his OCF-1, it has determined that he might be eligible for a NEB and an Income Replacement Benefit (“IRB”). It states, “Therefore we have sent you an election form OCF-10”.

59The respondent subsequently sent the applicant for multiple IE assessments between December 2022 and March 2023 to determine his entitlement to an IRB. Prior to his attendance at the IEs, the respondent sent correspondence to the applicant and his counsel regarding the arrangement of IEs to assess his IRBs and seeking documents to calculate his IRBs. I find at no point during this time period, did the applicant advise the respondent that he was electing a NEB instead of an IRB or object to the respondent’s efforts to determine the applicant’s entitlement to IRBs.

60On December 20, 2023, the applicant provided his completed OCF-10 electing a NEB.

61I agree with the applicant that the respondent did not advise the applicant that the completed OCF-10 was due back within 30 days after receipt of the form. However, it is clear from the EOB that an OCF-10 was requested to determine which benefit the applicant was seeking. Therefore, I find that the respondent’s letter dated April 29, 2022, is compliant with s. 36(4)(c) of the Schedule because it contains a valid request for an OCF-10 to be provided. I find that the applicant has not pointed the Tribunal to any authority that omitting the due date for providing an OCF-10 means that the notice is non-compliant.

62However, I find that the fact that no timeline was stated in the request means that the applicant was not given a deadline for submission of the OCF-10. I therefore find that the applicant is entitled to rely upon the completed OCF-10 electing a NEB, dated December 20, 2023, which was submitted within two years of the collision.

Period of entitlement to a NEB

63Pursuant to s. 12(3) of the Schedule, the insurer is not required to pay a non-earner benefit,

(a) for the first four weeks after the onset of the complete inability to carry on a normal life;

(b) before the insured person is 18 years of age;

(c) for more than 104 weeks after the accident; or

(d) if the insured person is eligible to receive and has elected under section 35 to receive either an income replacement benefit or a caregiver benefit under this Part.

64The applicant was 16 years at the time of the accident. Pursuant to s. 12(3)(b), no NEB is payable before the applicant is 18 years of age. Therefore, pursuant to s. 12(3)(c), the entitlement period is from April 11, 2023, the date he turned 18, to December 26, 2023, the 104-week mark.

65I do not accept the respondent’s argument that there is an additional four week waiting period pursuant to s. 12(3)(a), as I find that the onset of the complete inability to carry on a normal life would be the date of the accident when the applicant’s impairment arose.

Is the applicant entitled to a NEB?

66I find that the applicant has failed to meet his burden to demonstrate that he suffers a complete inability to carry on a normal life as a result of the accident.

67Subsection 3(7)(a) of the Schedule provides that a person suffers a complete inability to carry on a normal life as a result of an accident, if as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

68The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”) which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

69For the applicant to prove that he sustained injuries that continuously prevent him from engaging in substantially all of his pre-accident activities, he must present a thorough analysis and comparison of activities that he could do before the accident and after the accident. The applicant must first identify the activities in which he used to engage, along with their frequency and importance.

70The applicant submits that since the accident, he has remained substantially unable to perform the essential tasks of his activities of daily living, to continue with part time employment, and to complete high school. He submits that following the accident, his depressive and pain symptoms interfered with self-care tasks and housekeeping chores, and he is unable to manage his own care, hygiene, cooking and cleaning or to perform all basic daily tasks. He reported vehicle-anxiety, reduced sexual function/libido and had difficulty falling and staying asleep. He submits prior to the accident he enjoyed soccer, basketball and roller skating, but engaged in very few activities post-accident.

71The respondent submits that the applicant has not met his onus in proving that he meets the stringent test for NEBs. It maintains that he has not made meaningful submissions to carry out a comparative analysis of his pre- and post-accident activities. It further submits that the medical records for the 104 weeks after the accident fall short of meeting the stringent complete inability test.

72I find on a balance of probabilities, that the applicant has not met his onus of proving that he meets the test for NEBs for the following reasons.

73First, I find the applicant’s submissions unhelpful in setting out what his daily activities were prior to the accident compared to his activities post-accident, and what accident-related impairments prevent him from carrying out these activities. Other than stating that his depressive and pain symptoms interfered with his abilities, his submissions did not provide further detail or direct me to the evidence to support what accident-related impairments interfered with his ability to attend school and be academically successful, return to his pre-accident employment, engage in housekeeping, perform self-care and engage in his sporting activities.

74In support of his position that he struggled with completing schoolwork and attending school, the applicant submits that his average marks went from 64% to 49%, based on his school transcripts. He further relies upon the reports of Dr. Ricci and Dr. Gavett-Liu, who opined that there was an impact on his ability to complete school courses. However, based on review of the pre-accident school transcripts I find that the applicant had poor performance and was struggling academically prior the accident. While there is a notable increase in the number of absences post-accident, the marks seem to be consistent with his pre-accident performance. I note Dr. Ricci’s comments that “Absenteeism appears to be a theme even prior to the accident, post pandemic, with increased absenteeism post-accident. There appears to be less absenteeism and better marks prior to the onset of the pandemic.” For these reasons, I find the school transcripts unhelpful in demonstrating a link between any accident-related impairment and his poor academic performance.

75With respect to the applicant’s submission that he is unable to work at his pre-accident employment as a result of his impairments, I find that other than his submissions that he worked at a restaurant, at an auto garage and as a labourer for a contractor, there are no records to substantiate his pre-accident employment. In addition, the applicant has not provided any particulars of the dates he worked, the job duties that he performed or the hours that he worked pre-accident.

76The applicant further submits that prior to the accident, he enjoyed soccer, basketball, rollerblading and going to the mall with friends but post-accident he has engaged in very few activities. I agree with the respondent’s submission that the academic file from Bell High School mentions that the applicant enjoyed swimming and kickboxing. In addition, as set out above, the September 30, 2022 entry by Dr. Matheson states that the applicant had returned to playing basketball and is learning to skate in order to start playing hockey. I therefore am not persuaded that the applicant is unable to engage in his pre-accident sporting interests.

77Second, I am not persuaded that the applicant has any accident-related impairment which would result in a complete inability to carry on a normal life. I find that there is limited medical evidence provided for the period of time in which the applicant is claiming entitlement to a NEB. I find upon review of the CNRs of the applicant’s family physician, that there are four visits following the accident. The applicant was seen on February 2, 2022 and February 4, 2022, where Dr. Abou-Said notes that the applicant is requesting school accommodations not to participate in gym days. He is then seen again on March 23, 2022, for right ankle and foot dysfunction and knee issues, but there is no request for any school accommodations. The applicant is not seen again until November 16, 2022, when he reports back and neck pain. There is then a lapse in visits and the applicant does not return to see Dr. Abou-Said until May 16, 2024, where he reports he is not doing well in school since the accident. I find that there are no recommendations made by Dr. Abou-Said in response or any further particulars provided with respect to why he is not doing well in school. The applicant has not provided any explanation for the lack of visits between November 16, 2022 and May 16, 2024, and there is no submissions provided by the applicant as to why he did not continue to consult with Dr. Abou-Said during this period.

78I find upon review of the CNRs of Dr. Matheson, that the applicant participated in physiotherapy, chiropractic and massage therapy treatment from January 27, 2022 to December 8, 2022. I note that the last CNR provided is dated September 30, 2022. The CNR dated September 30, 2022, notes that the applicant reports that “he was playing basketball with friends about 3-4 times a week through the summer. He has been playing 1-2 times per week lately, due to the change in weather. He has started learning how to ice skate in an effort to start playing hockey. He has also been doing some strength and coordinating as part of physical education at school.” The applicant also reports headaches that are constant and that trying to focus on someone talking or reading for even five minutes can aggravate his headache. He reports visual changes “zooming” that sounds like aura before the headache gets worse. The applicant was advised to go see a medical doctor as there are issues that cannot be assessed or managed in a rehabilitation setting. I find that there are no subsequent CNRs provided from Dr. Matheson. In addition, the applicant has not pointed the Tribunal to any medical records supporting that the applicant sought further medical treatment as recommended. I find that there are no medical assessments to address his reported headaches or the visual changes he claimed to suffer.

79Dr. Matheson subsequently provided an OCF-3, dated April 15, 2023, which concludes that the applicant suffers a complete inability to carry on a normal life, noting that the applicant is unable to participate in household, social, leisure, recreational and community activities. The information provided in this OCF-3 is in direct contradiction to Dr. Matheson’s last CNR dated September 30, 2022, that states the applicant is playing basketball with friends and learning to skate to play hockey. I also find that that there are no CNRs contemporaneous to this OCF-3, to support the applicant’s ongoing pain complaints or inability to engage in his activities of daily living.

80Based on the submissions and documentation provided by the applicant, I am not persuaded by the medical evidence provided in the 104 weeks following the accident to support that he suffers a complete inability to carry on a normal life.

81For the reasons outlined above, I find the applicant has not met his onus of proving on a balance of probabilities that he has a complete inability to carry on a normal life as a result of his accident-related impairments. As a result, he is not entitled to payment of a NEB for the time period claimed.

Interest

82Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

83The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

84As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

85For the reasons outlined above, I find:

i. The applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.0 funding limit for a minor injury;

ii. The applicant is not entitled to the treatment plans in dispute, nor interest;

iii. The applicant is not entitled to a non-earner benefit of $185.00 per week;

iv. The respondent is not liable to pay an award; and

v. The application is dismissed.