Simon Ho v. Personal Insurance Company of Canada, 2013 ONFSCDRS 45

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 45

FSCO A10-000602

BETWEEN:

SIMON HO

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi

Heard: August 20 and 21, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Ho, self-represented

Franceen Rogovein for Personal Insurance Company of Canada

Background:

Simon Ho was injured in a motor vehicle accident on March 21, 2008 in Windsor when another driver hit his car. Some months after the accident, Mr. Ho applied to Personal Insurance Company of Canada for accident benefits payable under the Schedule.¹

Personal paid him some medical benefits but denied him income replacement benefits and further treatment because he failed to comply with the requirements of the Schedule in that he 1) did not provide sufficient, clear and detailed information about his income, preventing Personal from determining his weekly benefit entitlement, and 2) he did not attend for all the insurer medical examinations. Personal also asserted that Mr. Ho failed to prove disability as a result of the accident.

Mr. Ho and Personal were unable to resolve their disputes through mediation, and Mr. Ho applied for arbitration at the Financial Services Commission of Ontario.²

Issues:

1. Is Mr. Ho entitled to income replacement benefits from the time of the accident and ongoing and, if so, what is the quantum of that benefit?

2. Is Mr. Ho entitled to medical benefits for two treatment plans dated July 20, 2009 for chiropractic and massage therapy totalling $391.98?

Result:

1. Mr. Ho is entitled to an income replacement benefit of $95.43 weekly from April 1, 2009 to April 24, 2009. Mr. Ho is entitled to interest on this amount to be calculated in accordance with the Schedule.

2. Mr. Ho is not entitled to medical benefits for chiropractic and massage therapy.

ANALYSIS:

Mr. Ho contended that he was entitled to income replacement benefits because he was employed at the time of the accident and was unable to return to his previous employment as a result of injuries suffered in the accident. He also asserted that he provided Personal with all of the information he had in his possession relating to his income. Further, he argued that he required medical treatment for which he submitted expenses and seeks reimbursement.

The issues in this case arise because Mr. Ho failed to comply with the requirements in the Schedule to provide income and medical information to Personal. While he eventually submitted income information, his delay in doing so disentitles him to benefits for a significant period of time. Further, his failure to attend all of the medical examinations (IEs) also limits the benefits he can be paid. Finally, Mr. Ho failed to show that he should be reimbursed for the medical treatment expenses because he did not present sufficient evidence to show that the treatment was reasonable and necessary.

Issue 1: Income replacement benefits

The onus is on Mr. Ho to prove all the essential elements of his income replacement benefits claim and in that respect he must show that he qualifies³ for IRBs because (1) he was employed at the time of the accident; and (2) he suffered a substantial inability to perform the essential tasks of that employment as a result of the accident. Mr. Ho must also prove the amount of weekly benefit for which he qualifies.

Employment

There is no question that Mr. Ho in general was eligible to claim IRBs given that he was employed prior the accident. Mr. Ho testified and I am satisfied that he worked in Windsor in the greenhouses as a labourer in the three months before the accident. He then returned to Toronto and did not work. Prior to his employment in the greenhouses, Mr. Ho was in Windsor studying on an OSAP loan. He took on the labourer’s job from January to March 2008 picking fruit because he needed the money after he dropped out of his program.

Mr. Ho showed that he was eligible to make a claim for IRBs and in my view also demonstrated disability to some degree.⁴ However, Mr. Ho’s entitlement to IRBs is limited because:

(i) He delayed in providing sufficient income information to Personal so that it could calculate his weekly benefit and he did not have a reasonable explanation for his delay.⁵

(ii) He did not submit to all of the required insurer medical examinations and did not have a reasonable explanation for his non-attendance.

Failure to provide income information and entitlement to IRBs

One of the essential elements of an income replacement benefit claim is the calculation of the amount of that benefit. Section 6 of the Schedule sets out a detailed scheme for that calculation. An insurer is dependent on an applicant to provide the information to calculate that quantum.

As already indicated, Personal argues that Mr. Ho is not entitled to IRBs because he delayed in providing the information necessary to determine the possible IRB quantum to which he might be entitled and the information he eventually provided was insufficient.

While I agree that Mr. Ho delayed in responding to Personal’s requests for income information and had no reasonable explanation for his delay, in my view he eventually delivered sufficient information from which a benefit amount could be determined. However, because Mr. Ho delayed in providing the income information and did not have a reasonable explanation for that delay, the period for which he is entitled to IRBs is reduced.

It is true that initially Mr. Ho failed to provide any helpful income information. When he first applied for accident benefits, in December 2008⁶ when he first sought treatment for injuries he sustained in the accident⁷, his Application for Accident Benefits was incomplete. Part 8 of the application, the employment information section, was left blank because the physiotherapist completed the form for him and he was only interested in obtaining treatment at that time. Mr. Ho admitted that he was not aware that the form was an application for all of the accident benefits available to him and he did not pay attention to details of the application. Part 5 of the application was completed indicating he was self-employed.

However, I find that by April 1, 2009, Mr. Ho had provided sufficient documentation from which a weekly benefit amount is calculable. By April 1, 2009, Mr. Ho had submitted a Notice of Assessment for 2008⁸ along with the completed Part 8 of his Application for Accident Benefits.⁹ These two documents confirmed other information he delivered earlier, a handwritten calculation of his earnings on March 19, 2009¹⁰ along with a job analysis. By mid-April 2009, he had also submitted a brief accountant’s financial statement¹¹, but in my view by then Personal already had enough consistent income information to reasonably calculate a quantum.

Quantum calculation

I have examined the income information provided by Mr. Ho and have calculated the weekly IRBs amount to be $95.43.

Section 8 of the Schedule assists with the calculation of the benefit. Subsection (2) provides that a self-employed person shall designate either the 52 weeks before the accident or the last fiscal year. In either case for Mr. Ho, he only had three months’ worth of income upon which to base the calculation. Section 8(3)2 provides that the gross income is deemed to be the gross annual income. To calculate the amount of the income replacement benefit, for each of the first 104 weeks of disability, the amount shall be 80 percent of the insured person’s net weekly income from employment determined in accordance with section 61 of the Schedule.

The formula, set out in the Schedule¹² and applied to the information from Mr. Ho’s documents, leads me to a finding that Mr. Ho’s weekly IRBs quantum is $95.43.

Period of entitlement

As indicated above, because Mr. Ho delayed in providing Personal with the income information, and because Mr. Ho did not have a reasonable explanation for that delay, the period for which he is entitled to IRBs is reduced in accordance with the Schedule.

Section 33(1) of the Schedule contemplates that an applicant will provide the information necessary for his insurer to determine entitlement to benefits and stipulates that an applicant shall provide the insurer with any information reasonably required to assist the insurer in determining the person’s entitlement to benefits within 10 business days after receiving the insurer’s request.

The section also states that the insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection (1). However, if an insured person subsequently complies with the request, the insurer shall pay all amounts that were withheld during the period of non-compliance if the insured person provides a reasonable explanation for the delay.¹³

As I concluded earlier, the earliest that Mr. Ho was in compliance with Personal’s request for information was April 1, 2009, the date by which he had delivered a Notice of Assessment and a completed Application for Accident Benefits. Because Mr. Ho failed to provide a reasonable explanation for his delay in providing this information, as required by section 33, Mr. Ho is not entitled to IRBs before April 1, 2009.

Mr. Ho’s testimony at the arbitration hearing did not reveal any reasonable explanation for his delay in responding to Personal’s many requests. While Personal corresponded with Mr. Ho on numerous occasions¹⁴, listing all documents it required to calculate IRBs, Mr. Ho testified that he ignored his mail on occasion and found the process difficult to pursue with diligence. Mr. Ho explained that he had less than satisfactory relationships with two sets of representatives and eventually had dismissed both by March 2009. He said he received much paperwork from both Personal and the treatment facilities he attended and he admitted to being less than diligent in responding to and acknowledging correspondence from Personal.

It is an applicant’s obligation to pursue their claims with diligence. It was Mr. Ho’s responsibility to deal with the mounting correspondence from Personal and to ensure that his representatives pursued his claims on his behalf. Inaction due to frustration is not a reasonable explanation for Mr. Ho’s delay in providing sufficient income information to Personal.

Therefore, I find that the earliest that Mr. Ho might be entitled to IRBs of $95.43 weekly is April 1, 2009 if the evidence shows that he suffered a substantial inability to perform the essential tasks of that employment as a result of the accident.

Disability

Neither Mr. Ho nor Personal had extensive evidence focused on the disability issue.

Mr. Ho provided oral testimony and a more recent note¹⁵ from his family doctor.

Having exclusively focused on the issue of quantum of the IRBs initially, Personal did not send Mr. Ho to be assessed for disability until March 2009. Then, while Personal had scheduled Mr. Ho for numerous insurer medical examinations (IEs)¹⁶, the evidence shows that Mr. Ho may not have attended more than two of those IEs. The result is that the only medical evidence from Personal is a physiotherapy IE report dated September 3, 2009¹⁷ which states that Mr. Ho has recovered from injuries he suffered as a result of the accident.¹⁸

I find that Mr. Ho’s credible evidence of disability is sufficient to show that he was substantially unable to perform the essential tasks of his previous employment¹⁹ directly following the accident especially in light of the fact that there is no medical evidence to contradict Mr. Ho’s assertions until September 3, 2009. Again, however, because Mr. Ho did not comply with the Schedule and did not submit to all of Personal’s scheduled IEs, his entitlement period is limited.

There is sufficient evidence to show that Mr. Ho was initially substantially unable to perform the essential tasks of his pre-accident employment. Mr. Ho’s testimony regarding his injuries after the accident was credible and sufficiently detailed to be reliable. He testified that he suffered aches and pains in his upper and low back, had sore knees and tingling in his arms. Mr. Ho claims that he was unable to return to the work he did before the accident, or any type of physically demanding work. He admitted that there was not much paid work that he could find upon his return to Toronto but he kept busy by volunteering with the newcomer center youth club teaching math and science until recently. He has been receiving benefits from ODSP since 2010.

Moreover, Personal did not question Mr. Ho’s need for treatment initially and approved treatment for injuries Mr. Ho claimed he sustained as a result of the accident. Mr. Ho testified that he was treated at two clinics where he had heat treatment, tens machine, massage therapy, and was taught to do some home exercises. He testified that he had 10 or 12 sessions at each clinic. Mr. Ho also consulted with his long-time family doctor, Dr. Sharma, after the accident in March 2008. His regular contact with his doctor is reasonably confirmed in Dr. Sharma’s medical note²⁰ where it is indicated that the accident aggravated pre-existing conditions such as headaches, dizziness, neck pain, back pain and depression. Dr. Sharma also indicates that some of these symptoms are ongoing.

In my view, there is sufficient evidence here to show that at least directly following the accident Mr. Ho was unable to work at his pre-accident tasks and therefore met the test for disability. However, because he did not submit to Personal’s reasonable requests to have him medically assessed, his entitlement period is further limited.

Failure to attend Insurer’s Medical Examinations and entitlement to IRBs

As indicated, Personal sought to have Mr. Ho attend IEs pursuant section 42 of the Schedule for the purposes of assessing housekeeping and employment. Personal submits that Mr. Ho failed to attend all of the scheduled IEs and therefore is not entitled to a benefit according to the Schedule until he attends for those IEs.

Subsection 42(10) sets out the requirements on the insured person and the insurer for the purposes of examinations under section 42. Section 35 of the Schedule speaks specifically to the issue of when specified benefits, which include IRBs, may or may not be paid.

One of the scenarios in which an insurer can find that an insured person is not entitled to a specified benefit, like an IRB²¹, is where the insured person failed or refused to comply with subsection 42(10). In that case, the insurer can refuse to pay pursuant to subsection 35(10). Subsection 35(10) indicates that the insurer may refuse to pay the specified benefit relating to that period after the insured person failed or refused to comply with subsection 42(10) and before the insured person submits to the examination. (emphasis added).

As was the case under section 33, section 35 also provides for the possibility that an insurer shall reconsider and pay all amounts withheld during the period of non-compliance where an insured person subsequently complies with a request to attend at an IE (if the insurer determines that the insured person is entitled to any specified benefits) so long as the person provides a reasonable explanation for not complying with subsection 42(10).²²

However, unlike with the provision of the income information, in this case it seems that Mr. Ho never undertook all of the scheduled IEs and, in any event, did not supply a reasonable explanation for not complying with the requests to attend.

Personal informed Mr. Ho by letter dated April 24, 2009²³ of his failure to attend one of the scheduled IEs and that pursuant to the Schedule he was no longer entitled to IRBs. Further, Personal sent an explanation of benefits dated June 13, 2009²⁴ enclosing one IE report but also indicating that it was still awaiting other IEs to be completed. While Mr. Ho recalled attending two or three IEs, he also testified that he did not attend others for various reasons including: there were too many scheduled in one week; it was a tight schedule; he had other appointments; the IE appointment times were inconvenient for him; they were too far away. In the same way that he neglected dealing with Personal’s correspondence, he did not communicate with Personal to advise about whatever issues might have prevented him from attending the IEs. While I do not need to consider the reasonableness of any explanation where it is clear that Mr. Ho did not eventually comply with the requests for attendance at IEs, I note that, in the circumstances, Mr. Ho did not provide reasonable explanations for his failures to attend the IEs.

Given that he failed to attend all the scheduled IEs, Mr. Ho is not entitled to IRBs from the time of non-compliance, that being April 24, 2009.

Conclusion regarding IRBs

Mr. Ho is entitled to an income replacement benefit of $95.43 weekly from April 1, 2009, the date on which he supplied sufficient information to calculate the benefit, to April 24, 2009, the date on which he was notified that benefits were suspended for his failure to attend the insurer medical examinations. Mr. Ho is also entitled to interest, calculated as per the Schedule, on this outstanding amount.

Issue 2: Expenses for chiropractic and massage therapy totalling $391.98

On July 24, 2009, Mr. Ho submitted a full treatment plan in the amount of $2,444.12 from the Om Sai Physiotherapy Clinic. Personal required Mr. Ho to attend an IE to determine whether this treatment plan was reasonable and necessary. Mr. Ho then submitted two invoices to Personal, each for expenses of $195.99 from the same clinic. Personal informed Mr. Ho on August 25, 2009 that it would not consider these expenses until it received a report from the assessor assigned to do Mr. Ho’s IE. Mr. Ho attended the scheduled IE and a report from the physiotherapist who conducted the IE was issued dated September 3, 2009.²⁵ Based on the examination’s clinical findings, the physiotherapist concluded that Mr. Ho had recovered from his accident injuries and the treatment proposed therefore was not reasonable or necessary.

Mr. Ho’s evidence about this treatment was very limited. While testifying that he undertook the treatment and he found it helpful, he did not address directly whether the treatment was reasonable and necessary at the time proposed. The limited and brief evidence in Dr. Sharma’s note did not address this treatment at all. Given the evidence and conclusions contained in Personal’s IE report and the lack of evidence from Mr. Ho, I find that these expenses are not reasonable and necessary, as required by the Schedule²⁶, and need not be reimbursed.

EXPENSES:

Each party shall bear its own expenses of the arbitration proceeding.

April 8, 2013

Rosemary Muzzi

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 45

FSCO A10-000602

BETWEEN:

SIMON HO

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Ho is entitled to an income replacement benefit of $95.43 weekly from April 1, 2009 to April 24, 2009. Mr. Ho is entitled to interest on this amount to be calculated in accordance with the Schedule.

2. Each party shall bear its own expenses of the arbitration proceeding.

April 8, 2013

Rosemary Muzzi

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
3. 3Section 4(1) of the Schedule
4. 4To be dealt with under Disability
5. 5Section 33(4)(b)
6. 6Exhibit R1
7. 7He reported the accident when it happened because his main concern was to repair his vehicle. He discovered that his policy did not cover collision.
8. 8Exhibit R13
9. 9Exhibit R14
10. 10Exhibit R6
11. 11Exhibit R15
12. 12Section 62 – The amounts from Mr. Ho’s documents show $3360 + 2640 + 1800 = 7800 (income) – 1597 (expenses) = $6203 divided by 52 = $119 X 80% = $95.43
13. 13Section 33(4)(b)
14. 14Exhibits R3 and R2 - OCF 9; R5; R7
15. 15Exhibit A1, dated August 20, 2012
16. 16R4 – March 4, 2009 – includes notices for five IEs; R19 – August 13, 2009 – notice for one IE
17. 17Exhibit R22
18. 18Ibid, page 4
19. 19Section 4(1)1. of the Schedule
20. 20Exhibit A1
21. 21Section 35(6)(3)
22. 22Section 35(11)
23. 23Exhibit R8
24. 24Exhibit R10 – Explanation of Benefits dated June 13, 2009
25. 25Exhibit R22
26. 26Section 14(2)(a)