Licence Appeal Tribunal File Number: 24-003309/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:
Mohamad Fakih
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Sarah Sheaves
APPEARANCES:
For the Applicant: Mireille Dahab, Counsel
For the Respondent: Adel Pippo, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Mohamad Fakih, the applicant, was involved in an automobile accident on December 15, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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
3The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 29, 2024, to December 15, 2024?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under section 10 of Regulation 664, because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant is entitled to a non-earner benefit of $185.00 per week from March 29, 2024, to December 15, 2024.
5The applicant is entitled to interest on overdue benefits.
6The applicant is not entitled to an award.
ANALYSIS
The test for non-earner benefits
7Section 12(1) provides that an insurer shall pay a non-earner benefit 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.
8Section 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.”
9The Court of Appeal set out the guiding principles for non-earner benefit 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 entitled to non-earner benefits from March 29, 2024, to December 15, 2024
10I find that the applicant has proven, on a balance of probabilities, that he is entitled to non-earner benefits from March 29, 2024, to December 15, 2024.
11The applicant was a 17-year-old high school student on the date of the accident. The respondent began paying the non-earner benefit on his 18th birthday, as required by the Schedule.
12The respondent terminated the benefit as of March 28, 2024. It relies on three section 44 assessment reports to support its decision to terminate the benefit.
13The applicant submits that the respondent and its assessors have not correctly applied the legal test for non-earner benefits as set out in the Schedule and Heath. The applicant says that Heath requires consideration of whether he was able to meaningfully and consistently engage in the pre-accident tasks which were most important to him before the accident.
14The applicant submits that while he was able to return to school after the accident, he did so inconsistently and with significantly poorer performance. He argues that his decreased frequency of attendance, inability to maintain a schedule for in-person classes, and decreased quality of performance means he has been unable to meaningfully engage in school.
15The applicant also points to his inability to engage in social and recreational activities post-accident as evidence that he meets the test for non-earner benefits.
16The respondent submits that ongoing symptoms are not sufficient to prove entitlement to non-earner benefits. It says that the applicant’s return to school shows that he does not suffer a complete inability to engage in substantially all his pre-accident activities.
17The respondent argued that the applicant engaged in ‘short-lived’ and conservative physical treatment, and that his impairments were mild and functionally insignificant. It has implied that the applicant’s mental health condition has not been causally linked to the accident in its submissions.
18The applicant relies upon the clinical notes and records of his treating physician, Dr. Girgis, and treating psychologist, Dr. F. Hasan. He relies on section 25 psychological and occupational therapy reports. He has also produced pre and post accident academic records, prescription records, and clinical notes and records from his physiotherapist.
19The records of Dr. Girgis show that the applicant had anxiety and attention deficit disorder prior to the accident. The records suggest the conditions were present when the applicant immigrated to Canada in 2018. They indicate he had stopped taking medication and treatment for the conditions approximately three years before the accident.
20Of note in Dr. Girgis’ records, the applicant required both prescription medication and psychotherapy after the accident. In relation to the time period in dispute in this application, the applicant’s anxiety, fatigue and concentration had some improvement, but it was still present and required ongoing treatment.
21Dr. Girgis completed a medical report on July 26, 2024. This report and his contemporaneous records show the applicant had ongoing anxiety and back pain. He was struggling with being able to study and reported missing lectures in school (the applicant enrolled in college in the fall of 2023). He continued to report low energy, fatigue, and decreased appetite. He had not returned to playing sports or going to the gym because of ongoing back pain. He continued to have limitations related to social interaction because of his anxiety. Further psychological treatment was recommended.
22The records of Dr. F. Hasan, psychologist, during the period in dispute, show that the applicant was pre-occupied with ongoing complaints of anxiety and depressed mood, back and shoulder pain, sleep disturbance, decreased focus and motivation, reduced appetite, and forgetfulness. The applicant was said to be upset about missing classes at school.
23The records from the physiotherapist show that treatment plans for physical and psychological treatment were being submitted and approved until at least July 2024. Attendances at treatment apparently extended into November 2024, belying the respondent’s submission that the applicant engaged in ‘short-lived’ treatment after the accident. In March 2024, when non-earner benefits were terminated, the records say the applicant was having ongoing limitations for prolonged standing, bending, sleep disturbance, and headaches.
24The respondent argues that the applicant has not provided any evidence of academic regression in school. This assertion fails to account for substantial submissions and evidence provided by the applicant about his educational activities.
25The applicant’s school records show he consistently earned 50’s and 60’s and sometimes failed classes in the years before the accident. His highest marks were a B in math and computers. His strongest courses in high school were math and computers. He missed over 75 classes in the year following his accident which was a significant departure from prior years.
26The applicant’s post-accident records show that he struggled in math and computer courses in college. He failed math with an F in his first term and passed with a C when he repeated the course second term. He also failed courses in data base management and computer programming. His grade point average declined from a B- to a C- overall in early 2024.
27There are medical records that confirm the applicant reported struggling with school in 2023 and 2024, including the section 25 psychological and occupational reports, and Dr. Girgis’ and Dr. F. Hasan’s records. The section 25 occupational therapist outlined that the applicant was unable to complete his co-op placement in high school because of his impairments. He also moved to online courses instead of in-person classes in 2024 to accommodate for his functional limitations.
28The applicant has provided evidence from various sources, spanning a significant period of time post-accident, that shows he had ongoing physical and psychological impairments until at least late 2024, and received ongoing approved treatment for them until at least November 2024. He has provided evidence showing that despite his return to school, he did have significant absences and a decrease in his grades. Particularly, a decrease in performance in 2024 for the courses he had historically excelled at.
29The applicant relies on the section 25 psychological report of Dr. Bodnar dated July 5, 2023. In terms of activities, the report says the applicant was no longer performing his chores, playing soccer, going to the mall, or socializing with friends. He was isolating and avoiding crowds. He was missing classes at school due to pain. He reported nightly sleep disturbance, and low energy. He said he was struggling with schoolwork due to trouble concentrating, remembering, following conversations, and low energy. He was not able to finish tasks on time.
30Dr. Bodnar said that the psychological testing confirmed severe levels of anxiety and depression. The applicant felt less confident, was staying home, and had developed passenger anxiety in vehicles. The diagnosis was major depressive disorder and specific phobia – vehicle anxiety.
31The respondent relies on the section 44 psychiatry assessment of Dr. S. Hasan dated March 7, 2024. Dr. S. Hasan noted the respondent was reporting loss of interest in usual activities, reduced appetite, sleep disruption, fatigue, passenger anxiety, nightmares and flashbacks, issues with memory and focus, and passive thoughts of suicidal ideation. He reported being less social and had not returned to playing soccer. He was diagnosed with an adjustment disorder with mixed anxiety and depressed mood because of the accident.
32Dr. S. Hasan said the applicant’s impairments were not of a severity that prevented him from performing activities of daily living and normal life. He said the applicant had the capacity to adapt to changes in his lifestyle and regain some of his abilities, with the assistance of medications.
33The respondent says I should prefer the assessment of Dr. S. Hasan to that of Dr. Bodnar. It argues that Dr. Bodnar’s opinion and report are based on the applicant’s self-report, not testing. It says the report results from one single assessment and is unreliable.
34The applicant says Dr. Bodnar did perform psychometric testing to form her opinion. He says that the opinion and report is also supported by the clinical notes and records from approved treatment sessions, that were conducted through Dr. Bodnar’s office. The applicant points out that Dr. S. Hasan’s assessment was also a single assessment as well.
35I agree with the applicant. The respondent’s arguments about the validity of Dr. Bodnar’s report do not hold any weight. Both assessors only conducted a singe assessment. Both assessors performed psychometric testing, contrary to the respondent’s assertions. Both assessors diagnosed with applicant with psychological impairments.
36I prefer Dr. Bodnar’s report, particularly in relation to the non-earner benefit, because it considered the applicant’s participation in activities in considerably more detail than Dr. S. Hasan’s. I find that Dr. S. Hasan did not consider the applicant’s pre or post activities at all when rendering his opinion.
37While Dr. S. Hasan reported the applicant returned to school, there was no inquiry or discussion about his performance or consistency at school. When it came to activities important to the applicant that he engaged in pre-accident, like playing soccer, going to the gym and socializing, Dr. S. Hasan confirmed the applicant was not doing the activities, but it was not discussed when he rendered his opinion about the test for non-earner benefits.
38I also agree with the applicant that Dr. S. Hasan did not use the correct test for non-earner benefits when making his opinion, that being whether or not the applicant suffered a complete inability to lead his normal pre-accident life.
39The respondent submitted that Dr. S. Hasan applied the test for benefits directly from Health, but this submission is not accurate. Not only was the wording Dr. S. Hasan used incorrect, he did not consider the pre and post accident activities of importance to the applicant, as specifically required by Heath.
40Dr. S. Hasan made a psychiatric diagnosis of the applicant and recommended ongoing medication use to return to function, and ongoing psychotherapy. He never addressed the non-earner test in the context of these findings, or the impact the impairment was having on the applicant’s daily functioning. Dr. S. Hasan’s diagnosis also nullifies the respondent’s suggestion that causation could be an issue in this application.
41In contrast, I find that Dr. Bodnar’s report contained much more detail of the applicant’s functional limitations, including the impact they were having on school, home life, and daily activities. The report demonstrates that while the applicant had returned to school, he was struggling with attendance, homework, and performing tasks on time. He was also struggling with following along in classes. The report also confirms there was no return to social and recreational activities the applicant engaged in before the accident.
42Of note, all the available medical reports submitted from both parties say the applicant had not returned to social and recreational activities he engaged in before the accident.
43The respondent relies on the section 44 general practitioner assessment of Dr. Nesternko dated March 7, 2024. Dr. Nesterenko diagnosed cervical and thoracolumbar strain, bilateral shoulder strain, right wrist and ankle strain and left knee strain as a result of the accident. She said all ranges of motion were functional on testing, pain and tenderness were reported on testing of the left knee, left shoulder, cervical, thoracic and lumbar spine.
44Dr. Nestrenko said the applicant does not suffer a complete inability to carry on a normal life. She did not consider whether the applicant had returned to the activities of daily living that were most important to him before the accident when providing her opinion, despite mentioning there was no return to pre-accident recreational activities or household chores in the body of her report. There was no compelling assessment of pre and post accident activities and the ability to consistently and meaningfully perform them. Based on this, I did not assign any weight to the opinion.
45I find it also important to note that Dr. Nestrenko gave no consideration on the global impact of both the physical diagnoses she made, together with the psychological diagnosis made by Dr. S. Hasan. Consideration of the combined impact of both assessors’ diagnoses, and how they impacted the applicant’s ability to carry on a normal life would have been appropriate when rendering an opinion as a general practitioner. These diagnoses do not exist in isolation to each other.
46The respondent also relies upon the section 44 report of Atul Kaul, occupational therapist, dated March 7, 2024. This assessor, like the other section 44 assessors, also failed to consider which pre-accident activities were most important to the applicant, and whether he was consistently and meaningfully able to engage in them post-accident. The report confirms the applicant had not returned to playing sports since the accident. The assessor concluded that since the applicant was in school and could perform self-care activities, he did not meet the test for non-earner benefits. Given the requirement to assess meaningful and consistent engagement in pre and post accident activities to make a conclusion about the benefit, I was not persuaded by the opinion in this report.
47Further, the assessor administered two tests during the evaluation to assess depression and anxiety symptoms. The applicant’s scoring on the tests were in the moderate to severe range. The significance of the testing and its impact on the applicant’s functional abilities was not discussed in the report. The test scores were dismissed because the applicant had pre-accident mental health concerns.
48The applicant has submitted that the section 44 occupational therapist is not qualified to render an opinion related to causation of psychological impairments. I agree with this submission.
49It is baffling that this assessor would administer these tests and report on the results, having full knowledge of the applicant’s pre-accident health, and then fail or refuse to interpret their meaning by giving an opinion about causation they are not qualified to render. This opinion was given in the context of clear evidence that the applicant had not required medication or treatment for several years pre-accident and was diagnosed by Dr. S. Hasan with psychological impairment directly related to the accident.
50I do not give any weight to the section 44 occupational therapy report dated March 7, 2024, for these reasons.
51The respondent filed a further occupational therapy report dated November 13, 2024. The report does not consider pre and post accident activities that were most important to the applicant. It does not give an opinion about the non-earner benefit. However, I do note that it confirms the applicant had not returned to playing sports since the accident. There is no comment on social or other recreational activities, or how meaningfully or consistently the applicant was attending school.
52The applicant relies on the section 25 report of Jalpa Bode, occupational therapist, dated August 8, 2024. This report was written during the relevant time period the non-earner benefit is in dispute. The report notes the applicant enjoyed playing soccer, socializing with his friends, and going to the gym pre-accident, and that he had not returned to these activities post-accident.
53The assessor says the applicant had difficulty commuting to college for classes and carrying his books because of pain, headaches, and difficulty with concentration. He was not able to engage in prolonged sitting. He confirms the applicant had to drop courses, and then switch to attending school online in term two, because of his limitations.
54The assessor confirms the applicant did not complete his co-op placement at school after the accident. At the time of the report the applicant was struggling with fatigue and low motivation and was having difficulty attending classes, even in an online format. The applicant was reporting ongoing limitations for sleeping, taking care of his own hygiene, sitting, concentrating, being in class, and doing his homework. He was not socializing and was still reporting anxiety in vehicles.
55This assessor did not render an opinion about non-earner benefits and was assessing attendant care needs. However, the assessor did outline the applicant’s pre and post activities in much more detail than any of the section 44 assessors and provided a snapshot that confirmed that the applicant was not meaningfully and consistently engaging in his pre-accident activities. This assessment confirms that the applicant had ongoing functional impairments, had not returned to social and recreational pre-accident activities, and was not meaningfully and consistently able to engage in his school activities.
56In Heath, the Court of Appeal confirmed that the starting point of analysis for the non-earner test is to compare pre and post accident activities and life circumstances. Greater weight is to be given to the activities that were most important to the applicant. The section 44 assessors have not done this when rendering their opinions about this benefit.
57In Heath, the Court confirmed that engagement in an activity must be viewed as a whole, and that going through the motions cannot be said to be “engaging in” an activity. The manner in which the activity is performed, and the quality of the performance must also be considered.
58All the evidence from both parties confirms that the applicant had not returned to any social or recreational activities he enjoyed prior to the accident.
59While the applicant had returned to school following the accident, none of the section 44 assessors, nor the respondent’s submission, considered his ability to meaningfully engage in his school activities, nor the manner in which he was engaging or the quality of his performance.
60The applicant provided academic records that show his attendance at school changed significantly post-accident. He confirmed he was not able to complete his co-op work. The grades in the courses he excelled at previously declined significantly, with several failed or dropped courses.
61The applicant’s medical records show that he reported limitations with school activities and performance to several practitioners including Dr. Gurgis, Dr. Bodnar, Dr. F. Hasan, and Jalpa Bode. The limitations included problems with commuting and sitting in class, the need to switch to online attendance in college, ongoing troubles with attendance and completion of work, difficulty with concentration, following along in classes, and motivation.
62The evidence in the medical and academic records shows that the applicant’s attendance at school was sufficiently restricted and the quality of performance was also significantly impaired for the period the non-earner benefit was in dispute. Viewed as a whole, I find he was not meaningfully engaging in his school activities post-accident.
63Given the evidence of a lack of engagement in social and recreational activities, and significantly impaired ‘engagement’ in school post-accident, I find that the applicant has proven a complete inability to carry on a normal life, on a balance of probabilities.
64Therefore, the applicant is entitled to a non-earner benefit of $185.00 per week from March 29, 2024, to December 15, 2024.
Interest
65Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest.
Award
66The applicant sought an award under section 10 of Reg. 664. Under section 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.
67The applicant submits that an award is warranted, because the respondent made errors in calculating the non-earner benefit lump sum that was payable to the applicant, twice. He says the errors are inconsistent with the duty to act in good faith and that they caused undue burden and psychological stress.
68The applicant relies upon Al-Rahami v Aviva Insurance Company of Canada, 2024 CanLII 126984 ON LAT, which he says supports the submission that miscalculating benefits can be evidence to support an award. He also relies upon 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ONLAT). He says this case confirms that significant delays and administrative failures may be cause for an award.
69I do not find the applicant’s interpretation of these cases and their applicability to this case to be correct. An award was ordered in these cases because the insurer failed to consider medical evidence in its possession that confirmed pre-existing medical conditions that would remove the claimants from the minor injury guideline. That did not happen in this case.
70In this case the respondent agreed to pay non-earner benefits and only terminated them once it had several section 44 assessments in its possession which opined the applicant did not meet the test for the benefit.
71The respondent says the applicant must show that it was imprudent, stubborn, inflexible, unyielding or immoderate in adjusting the benefit in dispute. I agree that this is the test routinely applied at the Tribunal.
72The applicant has not provided any details or evidence to substantiate the claims of undue burden or psychological stress. He has not shown any delay on the part of the respondent, or that it was inflexible, unyielding, imprudent, stubborn, and so forth in the adjustment of the claim.
73The respondent made two errors in calculating the benefit payable, for a period of time that is not in dispute in this application. There is no evidence before me that the error resulted in delay or overpayment for the applicant. There is no evidence the respondent acted in bad faith at any point in time. Making an error or an incorrect decision is not sufficient to justify an award.
74I find the applicant has not met his burden to establish entitlement to an award for these reasons.
ORDER
75For the reasons provided, I order as follows:
i. The applicant is entitled to non-earner benefits from March 29, 2024, to December 15, 2024.
ii. The applicant is entitled to interest on overdue benefits.
iii. The applicant is not entitled to an award.
Released: January 15, 2026
__________________________
Sarah Sheaves
Adjudicator