Thillainadarajah v. Allstate Insurance Company of Canada, 2026 CanLII 8180

Citation: Thillainadarajah v. Allstate Insurance Company of Canada, 2026 ONLAT 24-007629/AABS

Licence Appeal Tribunal File Number: 24-007629/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:

Usanthan Thillainadarajah

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Robert Maich

APPEARANCES:

For the Applicant: Ramona Pimentel, Counsel

For the Respondent: Yalda Aziz, Counsel

HEARD: In Writing

OVERVIEW

1Usanthan Thilainadarajah, the applicant, was involved in an automobile accident on March 19, 2023, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2On March 19, 2023, the applicant was a 42-year-old operator of a 2006 Honda motor vehicle which was experiencing mechanical problems and was pulled over to curbside near the intersection of Donald Cousens Pkwy and Whites Hill Ave in Markham, Ontario. While the applicant was waiting for a tow truck, he was rear-ended by another vehicle and subsequently taken by ambulance to Markham Stouffville Hospital (“MSH”).

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 16, 2023, to March 19, 2025?

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

RESULT

4The applicant is not entitled to a non-earner benefit of $185.00 per week from April 16, 2023, to March 19, 2025.

5The applicant is not entitled to interest as there are no overdue payment of benefits.

ANALYSIS

Mechanics of the Injuries and Medical Evidence

6The applicant submitted that after the accident and while at MSH, he was diagnosed with mid cervical spondylosis and congenital mild posterior spinal dysraphism at the C3 level, with cortical irregularity at the proximal aspect of the left lamina of the body.

7The applicant submitted that his current subjective physical symptoms include severe pain to his neck, low back, bilateral shoulders, left wrist and right knee. He has difficulty turning his neck, bearing weight on his neck, lifting or bending his arms, using his left arm and right knee. Pain is described as chronic and aggravated during activity including climbing the stairs, standing, walking, bending and lifting; while at rest, massages and medication offers approximately 60 to 80 percent pain relief.

8Further, the applicant submitted he was diagnosed by Dr. Chen, physician in pain medicine, in her clinical notes and records with headache caused by post accident concussion, neck and shoulder pain, accident related cervico acceleration deceleration (“CAD”), whiplash associated disorder (“WAD”), tendinopathy, back pain, spinal injury, myofascial pain syndrome (“MPS”), right knee pain, contusion and inferior endplate compression fracture T11/T12.

9The applicant submitted the function abilities evaluation (“FAE”) by Dr. Wong, chiropractor, dated December 9, 2024 demonstrated significant limitations with overhead reach, shoulder reach, waist reach, bending, kneeling, crouching, twisting, and balance tests; further he was unable to perform floor to waist lift, waist to shoulder lift, shoulder to overhead lift or the carrying test due to pain and lack of range of motion in the lumbar spine, bilateral hips and bilateral shoulders.

10The applicant also submitted Ms. Ladak, clinical psychologist, found in her report dated November 30, 2023 that the applicant has psychological issues including frequent mood swings, feelings of sadness, anger, flashbacks, poor sleep, irritability, nervousness, loss of interest and motivation, and has difficulty coping with his pain and limitations. Ms. Ladak diagnosed the applicant within DSM 5 for adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder (“SSD”) with predominant pain and specific phobia of vehicular travel.

11The applicant further submitted he underwent a chronic pain assessment by Dr. Kessie, physician chronic pain, dated November 30, 2024 and was diagnosed with chronic pain syndrome (“CPS”), post-traumatic headaches, strain/sprain of cervical spine with radiculopathy, strain/sprain of thoracic spine, strain/sprain of lumbosacral spine (ruled out radiculopathy), strain/sprain of bilateral shoulders (ruled out rotator cuff) and strain/sprain of right knee (ruled out lateral meniscal injury).

12In terms of pre-accident and post-accident function, the applicant submitted he was previously independent with the activities of daily living and was fulltime employed at a warehouse by Hillman Group at the time of the accident. Post- accident he took time off work and was unable to return to work as his job entailed placing packages of varying size and weight on shelves and overseeing the loading and unloading of goods. He has continuing difficulties with prolonged standing, walking, bending, lifting, pushing, pulling, and grasping. He is able to walk independently but requires the assistance of his wife to climb stairs; he is unable to do laundry, deep cleaning, cooking or vacuuming without pain and requires assistance for external tasks such as grocery shopping.

13The respondent submitted the applicant’s history includes chronic pain from a March 2013 accident as a pedestrian and referred to documentation in medical notes dated August 10, 2020 and April 20, 2021. Further, the MSH records include a CT scan at the time of the accident indicating degenerative lumbar disks and mild cervical spondylosis. The applicant followed up 3 days post-accident with Dr. Asirwathan, physician, who diagnosed whiplash, lower back, shoulder and knee sprains; the applicant also began physiotherapy.

14Further the respondent submitted the first reference to concussion occurred 4 months post-accident in the clinical notes and records of Dr. Chen and was a self-reported brief blackout or loss of consciousness. His statements to subsequent assessors indicated no loss of consciousness from the accident. Further, the applicant has declined interventional pain management.

Is the applicant entitled to a non-earner benefit of $185.00 per week from April 16, 2023, to March 19, 2025?

15I find the applicant is not entitled to a non-earner benefit of $185.00 per week from April 16, 2023, to March 19, 2025.

16Pursuant to section 12 of the Schedule, the applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the applicant’s activities and life circumstances pre-accident and compares them to his activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (Heath), he must demonstrate that his life circumstances have changed and that the change must be significant enough to continuously prevent him from substantially engaging in all the activities that he engaged in before the accident.

17The applicant submitted he continues to suffer from a complete inability to carry on a normal life due to chronic pain and difficulties with walking, bending, lifting, and is unable to carry or lift heavy items, a perquisite and daily component of his job, due to weakness in right arm and right shoulder impingement. He is also substantially unable to perform housekeeping and home maintenance activities that he normally performed prior to the accident.

18The applicant also submitted his injuries were a direct result of the accident and has lived with persistent pain and injuries that have not healed two years post accident. The applicant relies upon the evidence of Dr. Chen that he is not able to return to work due to chronic pain to the right shoulder, back, right knee and was not able to look after his two children, aged 8 and 12 years old. In addition, the applicant relies upon the diagnosis of Dr. Kessie for CPS and Ms. Ladak for SSD, plus the results of the FAE by Dr. Wong.

19The applicant further submitted that although the burden of proof as to the level of entitlement of benefits lies with the insured, the insurer has the burden to demonstrate any exclusion of its liability to pay; the applicant relies upon Scarlett v. Belair Insurance Company Inc. (2015), 2015 ONSC 3635, 127 O.R. (3rd) 64: “Although it is fundamental to insurance law that the burden of proof rests on the insured to establish a right to recover the benefits under the terms of the policy, so too it is fundamental that when an insurer relies upon the law to avoid payment, the onus of proving that loss falls within the exclusion generally lies upon the insurer.”

20The respondent submitted s.12 of the Schedule requires insurers to pay NEB to individuals who experience a complete inability to carry on a normal life within 104 weeks from the accident; the threshold is high and requires the applicant to demonstrate his injuries prevent him from continuously engaging in all pre-accident activities. The respondent relies upon Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.

21The respondent submitted the applicant failed to meet his burden to demonstrate he meets the NEB threshold, and all the respondent’s assessors found that the applicant did not suffer a complete inability to carry on a normal life. Specifically, the respondent relies upon the physiatry assessment by Dr. Marchuk, physiatrist, dated September 29, 2023; psychological assessment by Dr. Saunders, psychologist, dated September 23, 2023, neurological assessment by Dr. Davar, neurologist, dated October 7, 2024. the psychological assessment by Dr. Day, dated October 7, 2024 and the occupational therapy in-home examination by Mr. Kassam, occupational therapist dated October 7, 2024.

22In the alternative, the respondent submitted the applicant cannot make a double recovery as he collected short term disability from SunLife insurance in the amount of $6,600.30 between March 19, 2023 and July 1, 2023; this sum must be deducted from any potential finding as required by s.47(1) of the Schedule.

23I find both parties agreed the leading caselaw on NEB entitlement is Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, an Ontario Court of Appeal decision that is binding upon this Tribunal. The analysis of whether the applicant suffers from a complete inability to carry on a normal life requires a comparison between the applicant’s activities and life circumstances before and after the accident. The applicant must demonstrate that the post-accident changes to activities and life circumstances continuously prevents him from engaging in a normal life. To determine whether the applicant is engaging in an activity, the quality of performance must be considered and whether it is sufficiently restricted by pain before during and after the activity, that the applicant is practically prevented from engaging in the activity. The Tribunal must determine whether there was sufficient evidence led by the applicant to satisfy this test.

24I find the applicant was fully independent in his daily activities prior to the accident and was gainfully employed. I note the applicant had pre-existing injuries from a March 2013 accident and was experiencing pain as recorded in his physician’s notes in 2021; I further note diagnostic imaging at the time of the accident indicated degenerative lumbar disks and mild cervical spondylosis.

25I find that as a result the accident the applicant was unable to continue his employment due to the accident and accept the FAE by Dr. Wong and the clinical notes by Dr. Chien as evidence of his limitations that support his inability to continue his pre-accident work. I find the loss of the applicant’s employment as a result of the accident substantially changed his life circumstances.

26I find that the daily activities of the applicant were also affected by the limitations outlined by Dr. Wong and Dr. Chien as well as the diagnosis of SSD by Ms. Ladak and CPS by Dr. Kessie as a result of the accident. I find these factors prevented the applicant from participating in housekeeping and home maintenance activities he engaged in prior to the accident. Further, I find these factors prevented the applicant from caring for his children as he did prior to the accident.

27I note that in respect to self care the applicant is able to complete his tasks without assistance, however he does require assistance from his wife when he experiences episodes of pain. I find that the injuries sustained by the applicant as a result of the accident do not sufficiently restrict him from engaging in his self care activities.

28I find the submissions of the respondent to be persuasive and the applicant did not meet its burden to demonstrate a complete inability to carry on a normal life. I find the applicant was able to demonstrate the accident affected him significantly and caused him to discontinue working, but he was not able to bring persuasive evidence that other aspects of his activities resulted in a complete inability to carry on a normal life. I accept the applicant’s evidence that his household duties were impacted, but the evidence also demonstrates that his personal care tasks were not affected sufficiently to meet the test.

29I find the applicant is not entitled to a non-earner benefit of $185.00 per week from April 16, 2023, to March 19, 2025.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as there are no overdue payment of benefits.

ORDER

31The Tribunal’s final Orders:

i. The applicant is not entitled to a non-earner benefit of $185.00 per week from April 16, 2023, to March 19, 2025.

ii. The applicant is not entitled to interest as there are no overdue payment of benefits.