Suvisiny Sivananthan v. Coachman Insurance Company, 2017 ONFSCDRS 308

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 308

FSCO A15-007717 & A15-007718

BETWEEN:

SUVISINY SIVANANTHAN

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

REASONS FOR DECISION

*Minor errors on page 4 and Order (Page 1) corrected on December 15, 2017 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: David Snider

Heard: September 5 to 8, 2017, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Jono Schneider for Ms. Sivananthan

Jennifer Beresford for Coachman Insurance Company

Issues:

The Applicant, Suvisiny Sivananthan, was injured in accidents on November 27, 2013 and on April 16, 2014. She applied for and received some statutory accident benefits from Coachman Insurance Company (“Coachman”), payable under the Schedule.¹ Coachman placed Ms. Sivananthan under the Minor Injury Guideline with regard to both dates of loss and refused to pay for certain medical benefits. Coachman also refused to pay Ms. Sivananthan Income Replacement Benefits and/or Non-Earner benefits with regard to each of the accident claims. The parties were unable to resolve their disputes through mediation, and Ms. Sivananthan applied twice for arbitration, one for each of the two dates of loss, at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The two applications were subsequently combined into one for purposes of this hearing.

The issues in this hearing are:

A – Concerning the November 27, 2013 date of loss:

1. Is Ms. Sivananthan entitled to receive a weekly income replacement benefit at the rate of $400.00 per week, or some lesser amount, from December 4, 2013 to present and ongoing?

2. Did Coachman properly characterize Ms. Sivananthan’s impairment(s) as minor and falling within the Minor Injury Guideline?

3. Is Ms. Sivananthan entitled to payment for the cost of an Occupational Therapy Assessment, including a Form 1 – Assessment of Attendant Care Needs, dated March 26, 2014 provided by Allied-Med Trauma Evaluations?

4. Is Ms. Sivananthan entitled to receive medical benefits in the following amount(s) for medical services set out in various treatment and assessment plans (OCF-18 and/or OCF-23 forms) provided by the Gibson Wellness Centre:

a. $2,200.00 for physiotherapy set out in an OCF-23 dated December 28, 2013 and sent to Coachman on the same date;

b. $1,245.64 for physiotherapy set out in an OCF-18 dated February 24, 2014 and sent to Coachman on February 26, 2014;

c. $1,206. 53 for massage therapy and acupuncture set out in an OCF-18 dated April 7, 2014 and sent to Coachman on April 28, 2014?

5. Is Coachman liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Sivananthan?

6. Is Coachman liable to pay Ms. Sivananthan’s expenses in respect of the arbitration?

7. Is Ms. Sivananthan liable to pay Coachman’s expenses in respect of the arbitration?

8. Is Ms. Sivananthan entitled to interest for the overdue payment of benefits?

B – Concerning the April 16, 2014 date of loss:

1. Is Ms. Sivananthan entitled to receive a non-earner benefit commencing after the required 26 week waiting period from the date of loss, namely October 15, 2014, to present and ongoing?

2. Did Coachman properly characterize Ms. Sivananthan’s impairment(s) as minor and falling within the Minor Injury Guideline?

3. Is Ms. Sivananthan entitled to receive medical benefits in the following amount(s) for medical services set out in various treatment and assessment plans (OCF-18 and/or OCF‑3 forms) provided by the Gibson Wellness Centre:

a. $200.00 for the cost of an OCF-3 Disability Certificate dated May 16, 2014;

b. $3,396.10 for physiotherapy set out in an OCF-18 dated May 16, 2014;

c. $3,089.00 for physiotherapy, massage therapy, and acupuncture set out in an OCF-18 dated November 1, 2014;

d. $1,234.58 for physiotherapy set out in an OCF-18 dated February 9, 2015?

4. Is Coachman liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Sivananthan?

5. Is Coachman liable to pay Ms. Sivananthan’s expenses in respect of the arbitration?

6. Is Ms. Sivananthan liable to pay Coachman’s expenses in respect of the arbitration?

7. Is Ms. Sivananthan entitled to interest for the overdue payment of benefits?

Result:

A – Concerning the November 27, 2013 date of loss:

1. Ms. Sivananthan is entitled to receive a weekly income replacement benefit at the rate of $255.71 per week, less post-accident income pursuant to s. 7(3) of the Schedule, from December 4, 2013 to present and ongoing.

2. No, Coachman did not properly characterize Ms. Sivananthan’s impairment(s) as minor and falling within the Minor Injury Guideline.

3. Ms. Sivananthan is entitled to payment for the cost of an Occupational Therapy Assessment, including a Form 1 – Assessment of Attendant Care Needs, dated March 26, 2014 provided by Allied-Med Trauma Evaluations.

4. Ms. Sivananthan is entitled to receive medical benefits in the following amount(s) for medical services set out in various treatment and assessment plans (OCF-18 and/or OCF‑23 forms) provided by the Gibson Wellness Centre:

a. $2,200.00 for physiotherapy set out in an OCF-23 dated December 28, 2013 and sent to Coachman on the same date;

b. $1,245.64 for physiotherapy set out in an OCF-18 dated February 24, 2014 and sent to Coachman on February 26, 2014;

c. $1,206.53 for massage therapy and acupuncture set out in an OCF-18 dated April 7, 2014 and sent to Coachman on April 28, 2014.

5. Coachman is liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Sivananthan.

6. Coachman is liable to pay Ms. Sivananthan’s expenses in respect of the arbitration.

7. Ms. Sivananthan is not liable to pay Coachman’s expenses in respect of the arbitration.

8. Ms. Sivananthan is entitled to interest for the overdue payment of benefits.

B – Concerning the April 16, 2014 date of loss:

1. Ms. Sivananthan is entitled to receive a non-earner benefit in the amount of $185.00 per week from October 15, 2014, to present and ongoing. However, while Ms. Sivananthan continues to receive Income Replacement Benefits pursuant to this order, she cannot also collect these Non-Earner Benefits.

2. Coachman did not properly characterize Ms. Sivananthan’s impairment(s) as minor and falling within the Minor Injury Guideline.

3. Ms. Sivananthan is entitled to receive medical benefits in the following amount(s) for medical services set out in various treatment and assessment plans (OCF-18 and/or OCF‑3 forms) provided by the Gibson Wellness Centre:

a. $200.00 for the cost of an OCF-3 Disability Certificate dated May 16, 2014;

b. $3,396.10 for physiotherapy set out in an OCF-18 dated May 16, 2014;

c. $3,089.00 for physiotherapy, massage therapy, and acupuncture set out in an OCF-18 dated November 1, 2014;

d. $1,234.58 for physiotherapy set out in an OCF-18 dated February 9, 2015.

4. Coachman is liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Sivananthan.

5. Coachman is liable to pay Ms. Sivananthan’s expenses in respect of the arbitration.

6. Ms. Sivananthan is not liable to pay Coachman’s expenses in respect of the arbitration.

7. Ms. Sivananthan is entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

Suvisiny Sivananthan was involved in two separate motor vehicle accidents within a 4.5 month period. They occurred on November 27, 2013 and April 16, 2014 in the Greater Toronto area. Ms. Sivananthan had also been involved in two prior accidents in 2011 and 2012, and, remarkably, two additional accidents since, but the only two which are before me for consideration in this hearing are the two specified above. The Commission combined her two applications for arbitration into this one hearing and as a result I will be dealing with all of the claims and issues set out above pertaining to both dates of loss. There were two witnesses called by the Applicant at the hearing, namely Ms. Sivananthan and her expert witness, Dr. Wong. The Insurer did not call any witnesses.

I have found that there were a significant and ongoing series of unusual steps taken by Coachman’s adjuster(s) with regard to Ms. Sivananthan’s claims for accident benefits concerning these two dates of loss. The unusual approach started shortly after the first accident. I find that Ms. Sivananthan properly filed her OCF-1 Application for Benefits and that although Coachman originally asserted that it did not receive this form it eventually conceded that it was properly received. Coachman concluded early on that Ms. Sivananthan had sustained only minor injuries in the first accident and accordingly characterized her claim as being within the Minor Injury Guideline (MIG). As is standard in all MIG cases, there is the sum of $3,500.00 available, as of right, to the claimant for purposes of medical and rehabilitation treatment(s). The Gibson Wellness Centre (Gibson) submitted an OCF-3 (Disability Certificate) on November 30, 2013 and although it did not receive payment immediately, it did eventually get paid the $200.00 fee for creating an OCF-3 document. Gibson then submitted an OCF-23 to Coachman on behalf of Ms. Sivananthan on December 28, 2013 claiming $2,200.00 for the regulated first step of treatment available under the MIG. They then submitted a subsequent OCF-18 for physiotherapy treatment to Coachman in the amount of $1,245.64 on February 25, 2014. These two treatment plans combine to total $3,445.64, which is just below the MIG Guideline requirement for automatic medical treatment in the amount of $3,500.00 in cases of minor injury. Coachman refused to approve these two plans despite receiving the OCF-3 Disability Certificate confirming MIG applicability. It should be noted in passing that Gibson also prepared another OCF-18 in the amount of $1,206.54 for massage therapy and acupuncture on April 7, 2014, 9 days before the second date of loss and therefore clearly pertaining to the first date of loss) but did not submit this plan until April 28, 2014, which was some 12 days after the second accident.

Rather than following the standard procedures set out in the Schedule for such cases, Coachman sent out notices under s.44 requiring Ms. Sivananthan to be assessed with regard to the reasonableness and necessity of the treatment(s) set out in these first two treatment requests. This is not in compliance with the Schedule and frankly makes no real sense in the context of the MIG. Most remarkably, these two treatment plans have still not been paid by Coachman almost 4 years after they were submitted. Inconsistently with this approach, Coachman approved and paid a second OCF-23, which was also for the standard $2,200.00 amount for the regulated first step of treatment available under the MIG, which was dated and submitted by Gibson on June 18, 2014 with regard to the second date of loss. This approval and payment at least made sense since Coachman was once again treating Ms. Sivananthan’s injuries as minor – although the question of whether the MIG applies to either or both accidents will be dealt with later in these reasons.

Having reviewed the Gibson Wellness Centre Paperwork Summaries with regard to the two dates of loss pertaining to Ms. Sivananthan, I find that only two medical treatment payments were made by Coachman in this matter. These were the $200.00 for an OCF-3 pertaining to the first date of loss and the $2,200.00 for the OCF-23 pertaining to the second as described above. A total of six incurred medical expense amounts remain unpaid, along with one in the amount of $2,200.00 dated July 10, 2017 and submitted July 18, 2017 which has not been incurred.

I have also noted the one occasion that I have in evidence before me when Coachman sent a valid s.44 Notice of Assessment to Ms. Sivananthan. This pertained to the $3,089.00 treatment plan dated November 1, 2014 and submitted by Gibson to the Insurer on January 28, 2015. In this instance the Applicant’s counsel informed Coachman, in writing, some two days before the scheduled assessment, that Ms. Sivananthan was ill with the flu and would not be able to attend for the assessment and requested a re-scheduled date. Remarkably, when the adjuster received this email he immediately responded with “…once Coachman receives an explanation as to how a person knows they will be sick with a stomach flu two days prior to a scheduled assessment, Coachman will be more than accommodating in setting up a new date and time for the assessment.” The adjuster then proceeded to hold Ms. Sivananthan in non-compliance with the Schedule and did not ever re-schedule the assessment despite a second request from her counsel. In my opinion this one email ably demonstrates the hostile approach being utilized by this adjuster and explains why there was no effective adjusting of Ms. Sivananthan’s claims in this file. Clearly the only appropriate response should have been for the adjuster to reschedule the assessment, but this was not the approach taken. The Insurer clearly breached the requirements of the Schedule in this instance.

The Insurer asserted in its opening and final submissions to this hearing that substantive entitlement has to be proven by the Applicant and that the mere existence of irregularities in the way the file was adjusted by the Insurer is not sufficient to require me to approve the treatment plans that were submitted. Remarkably, though, the Insurer chose to call no medical experts at the hearing and the medical evidence submitted by the Applicant through her medical expert, Dr. S. W. Joeseph Wong, a physiatrist and chronic pain specialist, went uncontroverted. He stated quite unequivocally that the pain symptoms and severe insomnia Ms. Sivananthan experiences began with the first accident we are dealing with and were exacerbated by the second, which is sufficient for me to find the test of “material contribution” to be satisfied. The Monks v. ING Insurance Company of Canada, 2008 ONCA 269 decision, which was a tort case, deals with the causation issue and how it may be defined. It confirms that the tort law establishes material contribution as the proper standard to resolve causation disputes and then compares this standard to Accident Benefits arbitration cases as follows (paragraph 91):

“…Moreover, the trial judge’s application of the material contribution test conforms with a long line of arbitral decisions in which this test has been utilized to resolve causation issues in accident benefits disputes, including in cases where the benefits claimant suffered from a pre-existing condition prior to the accident in question.”

Furthermore, the Insurer’s adjusting irregularities and non-compliances with the Schedule were also not dealt with, justified or explained through any evidence produced by the Insurer at the hearing. This leaves the Insurer with no evidentiary foundation with regard to its substantive entitlement argument.

Continuing with the irregularities and non-compliance exhibited by the Insurer regarding the various treatment plans submitted by Gibson, I find as a fact that the Insurer simply did not comply with the requirements of section 38 of the Schedule which was in force and applicable to the 2013 to 2014 time period. Further to the odd, unenforceable attempts by Coachman to require s.44 assessments pertaining to the MIG treatment plans submitted just after the first accident which were mentioned above, the Insurer continued to exhibit a notably hostile and unresponsive approach to the claims submitted by Ms. Sivananthan. I find that Coachman failed entirely to respond to Ms. Sivananthan directly or through her counsel with regard to all of the OCF-18’s pertaining to treatment, but not the one O.T. assessment, submitted by Gibson. Coachman did send the OCF-18 pertaining to the Occupational Therapy assessment (and Form 1 ACB Assessment) for a paper review. The result of the paper review, from what I can determine, was a simple refusal and a deeming of it not being “reasonable and necessary” on the basis that Ms. Sivananthan was considered by Coachman to be within the MIG and Attendant Care Benefits are not available to claimants within the MIG framework. There is a problem with this because the assessment was described in the OCF-18 as dealing with issues other than just attendant care and, when completed at the Applicant’s expense, contained significant findings pertaining to Ms. Sivananthan’s activities of daily living and recommendations concerning assistive devices. The Insurer’s paper review appears to have focussed only on the Form 1 Assessment of Attendant Care Needs component without considering the rest of the items proposed to be assessed. I find the paper review to have been defective and accept the validity of the assessment as provided by the Applicant at her own expense. I consider it appropriate, therefore, to require Coachman to make restititution to Ms. Sivananthan for this specific assessment plan, as it certainly can be seen to be useful and hence I deem it to have been reasonable and necessary.

I turn now to the technical notice requirements set out in the applicable version of the Schedule for the time period when these two accidents occurred. These are found in section 38 of the Schedule as set out below. The notable and pertinent subsections are 38(1)(a) and (b) and subsections 38(8), 38(9) and 38(11) which I have highlighted below.

Claim for Medical or Rehabilitation Benefits

Claims for medical and rehabilitation benefits and for approval of assessments, etc.

38(1) This section applies to,

(a) medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline; and

(b) all applications for approval of assessments or examinations. O. Reg. 34/10, s. 38 (1).

(2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates; or

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(i) drugs prescribed by a regulated health professional, or

(ii) goods with a cost of $250 or less per item. O. Reg. 34/10, s. 38 (2).

(3) A treatment and assessment plan must,

(a) be signed by the insured person unless the insurer waives that requirement;

(b) be completed and signed by a regulated health professional; and

(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation and,

(i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,

(A) that the insured person’s impairment is not predominantly a minor injury, or

(B) that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline, or

(ii) stating, if the treatment and assessment plan is in respect of an accident that occurred before September 1, 2010,

(A) that the expenses contemplated by the treatment and assessment plan are reasonable and necessary for the insured person’s treatment or rehabilitation, and

(B) that the impairment sustained by the insured person does not come within a Pre-approved Framework Guideline referred to in the Old Regulation. O. Reg. 34/10, s. 38 (3).

(4) A claim for dental goods or services completed and signed by a dentist and in the form approved by the Ontario Dental Association is deemed to be a treatment and assessment plan that satisfies the requirements of subsection (3). O. Reg. 34/10, s. 38 (4).

(5) An insurer may refuse to accept a treatment and assessment plan if the plan describes goods or services to be received or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods or services under the Minor Injury Guideline in respect of the impairment. O. Reg. 34/10, s. 38 (5).

(6) An insurer’s refusal to accept a treatment and assessment plan under subsection (5) is final and is not subject to review. O. Reg. 34/10, s. 38 (6).

(7) Nothing in subsection (5) prevents an insured person, while receiving goods or services under the Minor Injury Guideline, from submitting a treatment and assessment plan applicable to a period other than the period for which the insured person is receiving goods or services under the Minor Injury Guideline. O. Reg. 34/10, s. 38 (7).

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. O. Reg. 34/10, s. 38 (8); O. Reg. 14/13, s. 5.

(9) If the insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person. O. Reg. 34/10, s. 38 (9).

(10)If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44. O. Reg. 34/10, s. 38 (10).

(11)If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8). O. Reg. 34/10, s. 38 (11).

(12)If an insurer advises an insured person that the Minor Injury Guideline applies, the insured person may submit a treatment confirmation form under section 40 and, pending the insurer’s determination, may receive goods and services in accordance with the Minor Injury Guideline. O. Reg. 34/10, s. 38 (12).

(13)Within 10 business days after receiving the report of an examination conducted under section 44 for the purpose of the treatment and assessment plan, the insurer shall give a copy of the report to the insured person and to the regulated health professional who prepared the treatment and assessment plan. O. Reg. 34/10, s. 38 (13).

(14)Within 10 business days after receiving the report, the insurer shall,

(a) provide the insured person with a notice indicating the goods and services described in the treatment and assessment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the medical and any other reasons for the insurer’s decision; or

(b) if the insurer determines that the Minor Injury Guideline applies, advise the insured person that the Minor Injury Guideline applies to the insured person’s impairment and provide medical and any other reasons for the insurer’s determination. O. Reg. 34/10, s. 38 (14).

(15)The insurer shall pay for goods and services the insurer agreed to pay for in the notice under subsection (8) or (14) or is required to pay for under this section within 30 days after receiving an invoice for them. O. Reg. 34/10, s. 38 (15). [my emphasis]

I have found as a fact that the Insurer failed entirely to comply with the notice requirements set out in subsections 38(8) and 38(9). The consequences of this failure are clearly and unequivocally set out in subsection 38(11) and include two specific results which are completely on point with what I must decide pertaining to all of the treatment plans herein. Firstly, the Insurer is prohibited from taking the position that the person’s impairments fall within the MIG. Secondly, the Insurer is required to “pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).”

I consider the wording “after the day the insurer received the application” to be a bit unfortunate, as it utilizes “application” in place of “treatment and assessment plan”, but perforce that must have been what they meant when they drafted the Regulation. Accordingly, as these failures occurred over three years ago and no notice has ever been issued pursuant to the requirements of subsection 38(8) and/or 38(9) of the Schedule, there is no other possible conclusion to the treatment plan issues in dispute herein but to order Coachman to pay all of the plans in full to Ms. Sivananthan.

Interestingly, since the wording of subsection 38(11)(2) does not include the word “incurred” in its wording, it would appear that the very recent July 2017 $2,200.00 treatment plan set out on Gibson’s “Paperwork Summary” is included within this payment requirement even though it had not, as of the date of this hearing, been incurred. However, that treatment plan has not been raised as an issue in dispute before me and this comment is clearly obiter to my decision herein.

Further, and even more significantly, Coachman cannot take “the position that the insured person has an impairment to which the Minor Injury Guideline applies” with regard to these two dates of loss and Ms. Sivananthan’s medical claims arising therefrom. Accordingly, these medical and rehabilitation issues in dispute have now been disposed of.

Income Replacement Benefits:

It should be noted at the outset of this section that what I have been asked to decide upon is strictly initial entitlement as of December 4, 2013, at the 7 day mark after the first date of loss, to Income Replacement Benefits (IRBs), and the weekly quantum thereof. I will not be making any ruling pertaining to continuance of these benefits or post-accident income issues other than to order the standard “to present and ongoing” clause if, applicable.

I have found that the Insurer, once again, has followed an irregular procedural path in dealing with Ms. Sivananthan’s eligibility for IRBs. No IRBs in any amount have ever been paid to the Applicant, yet the notice required under s. 36(4) of the applicable Schedule has never been delivered to Ms. Sivananthan by Coachman, and, as well, no s.33 demand for documents has ever been made of her. The Insurer appears to have left the entire matter “in limbo” by virtue of the fact that Ms. Sivananthan was partially employed by a corporation in which she was the major shareholder and she was unable to satisfy the demands of the Insurer’s forensic accountant concerning certain corporate documents. I find as fact that Ms. Sivananthan’s corporation had issued T4’s to her and that she had also received T4’s in each taxation year from other employer(s) and had accordingly filed proper personal income tax returns for every year that could be relevant for an IRB calculation. I find further that the forensic accountant engaged by Ms. Sivananthan after the first accident took a close look at the documentation that was available and was able to determine the proper level(s) of IRB that she was entitled to by making only one assumption based upon the lack of corporate records. That assumption was that the restaurant the corporation was operating prior to the first date of loss closed shortly thereafter and hence a zero earnings calculation was assumed for 2014 on the basis that the corporation was clearly operating at a loss by late 2013. I find that this assumption was entirely justified because Ms. Sivananthan’s uncontradicted testimony was that after the first accident she was unable to work at either her restaurant or at the other one which was employing her. She had been working extremely long hours at her own restaurant for quite some time prior to the accident and was, I find, the major driving production force for the operation, which was a small takeout-style restaurant. She was required to hire a cook to take her place as a consequence of her inability to continue to work after the accident and this extra expense was enough to tip the corporation over into a loss position.

The Insurer’s forensic accountant refused to calculate the appropriate IRB level(s) for Ms. Sivananthan because she was unable to produce the corporate records. However, her explanation for why the records could not be produced, and about the efforts of her counsel in obtaining a court order against the accountant who is holding the records pending payment of a large fee, is sufficient for me to determine that she made her best efforts, although perhaps not a perfect effort, to obtain the corporate records. But here is the paradox in the Insurer’s position with regard to this point. If the lack of corporate records results in the accountant not being able to attribute any income from corporate dividends to Ms. Sivananthan, does this not actually reduce her income for the relevant pre-accident IRB calculation period, although perhaps by only a small amount? Would this not effectively benefit the Insurer? So why would they not complete the process with what information they had available and make their weekly IRB payment(s) based upon this lowered figure? The corporate activities may have some small impact on a post-accident income calculation, and that may become an issue in the future, but continuation and post-accident income are not issues which are before me in this hearing, so I see no particular need to pursue this point further. I am concerned only with determining what weekly quantum of IRB can be calculated for Ms. Sivananthan and I find no reason to dispute the figure(s) provided by the Applicant’s accountant, (MDD Forensic Accountants) of $255.71. These two figures were calculated based upon the exact same information that was provided to Coachman’s accountant and represent an accurate and reasonable way to determine the quantum question.

Having now determined that the weekly amount payable can be properly calculated, I must return to the eligibility question and the irregularities I first pointed out at the outset of the IRB section of these reasons. It should be emphasized, once again, that I am determining only initial entitlement in this order and that therefore I am concerned only with section 36 of the Schedule, and not section 37. The version of section which applies to the relevant time period herein reads as follows and I have highlighted the significant sections below.

36(1) In this section and section 37,

“specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 23. O. Reg. 34/10, s. 36 (1).

36(2) An applicant for a specified benefit shall submit a completed disability certificate with his or her application under section 32. O. Reg. 34/10, s. 36 (2).

36(3) An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted. O. Reg. 34/10, s. 36 (3).

36(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(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 and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33 (1) or (2). O. Reg. 34/10, s. 36 (4).

36(5) If the insurer sends a request to the applicant under subsection 33 (1) or (2), the insurer shall, within 10 business days after the applicant complies with the request,

(a) pay the specified benefit; or

(b) give the applicant a notice described in clause (4) (b). O. Reg. 34/10, s. 36 (5).

36(6) If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice. O. Reg. 34/10, s. 36 (6).

36(7) If the insurer requires the applicant to undergo an examination under section 44, the insurer shall, within 10 days after receiving the report of the examination,

(a) give a copy of the report to the applicant and to the person who completed the disability certificate submitted with the application; and

(b) provide the applicant with a notice indicating the amount, if any, that the insurer agrees to pay in respect of the specified benefit, the amount, if any, the insurer refuses to pay in respect of the specified benefit and the medical and any other reasons for the insurer’s decision. O. Reg. 34/10, s. 36 (7).

36(8) Within 10 business days after delivering the notice under clause (7) (b), the insurer shall pay the amount, if any, that the insurer agrees to pay in respect of the specified benefit. O. Reg. 34/10, s. 36 (8).

36(9) Every income replacement benefit, non-earner benefit or caregiver benefit shall be paid at least once every second week, subject to any prepayment of the benefit by the insurer. O. Reg. 34/10, s. 36 (9).

Based upon the above requirements and the evidence, including the testimony of Ms. Sivananthan, I find that she did submit a completed OCF-3 Disability Certificate which medically confirmed her entitlement to IRBs and that the Insurer properly received it. I also find that Coachman did not comply with section 36(4) of the Schedule because it did not (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 and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or, (c) send a request to the applicant under subsection 33(1) or (2).

The consequence of the procedural errors set out in the above paragraph are are clearly and unequivocally set out in section 36(6) as follows: “If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.” I find that no such notice has ever been given to Ms. Sivananthan either directly or through her counsel. Accordingly, there is nothing further required of me to determine that Ms. Sivananthan has been eligible to receive an Income Replacement Benefit in the amount of $255.71 per week from December 4, 2013 to present and ongoing.

Non-Earner Benefits:

As stated above concerning IRBs, it should be noted at the outset of this section that what I have been asked to decide upon is strictly initial entitlement to Non-Earner Benefits (NEBs) as of October 15, 2014, which is the day after the end of the 26th week disqualification period after the second date of loss. I will not be making any ruling pertaining to continuance of these benefits other than to order the standard “to present and ongoing” clause, if applicable.

Turning first to the continuing factor of the irregularities in the Insurer’s adjusting procedures pertaining to this file, I find that, once again, there are two major problems. I have found that in this case the Election Form (OCF-10) under section 35 of the Schedule does not seem to have been served upon Ms. Sivananthan. She has no recollection of it and Coachman has not provided proof that it properly delivered the election form. On the other hand, the Insurer did submit among its exhibits an OCF-9 Explanation of Benefits dated May 20, 2014 in which there is a statement concerning the need for Ms. Sivananthan to complete an OCF-10 Election Form pertaining to her need to choose between IRBs and NEBs with regard to the April 16, 2014 date of loss. The OCF-9 also says that the Election Form is attached to it. However, I did not receive into evidence any proof of such an attachment and neither did I find any proof that the OCF-9 itself was ever delivered to Ms. Sivananthan or her counsel. The author of the OCF-9 form could have been called as a witness or at least could have authored some proof that the form was delivered, but the Insurer chose not to provide such evidence at the hearing. It should also be noted that at no time prior to the hearing itself did Coachman raise the issue of Ms. Sivananthan having failed to make an election for Non-Earner Benefits. I therefore find it too late for the Insurer to raise this defence, even if they could prove they had delivered the form to her, which they have not. However, the mere fact the Election Form was not delivered does not, in my opinion, create a specific requirement that the Insurer pay NEBs as a consequence of not delivering the form. The wording of section 12 of the Schedule (as set out below later in these reasons) does not specify such a consequence and I cannot read it in. On the other hand, section 36(4) of the Schedule was again not complied with by the Insurer. I searched through the documents provided in the Insurer’s Arbitration Brief and could not find any documentation pertaining to the notice requirement set out in section 36(4) and I have to conclude that no such notice was ever issued with regard to this second date of loss. This created an ongoing regulatory obligation for Coachman to pay this benefit commencing October 15, 2014.

Turning now to some specific technical requirements of the Schedule, it is obvious that the second motor vehicle accident is clearly and legally a distinct event from the first. Accordingly, the NEB payment prohibition set out in section 12(4) of the Schedule is not applicable to this case. It reads as follows:

(4) The insurer is not required to pay a non-earner benefit,

(a) for the first 26 weeks after the onset of the complete inability to carry on a normal life;

(b) before the insured person is 16 years of age; or

(c) 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. O. Reg. 34/10, s. 12 (4).

I read subsection (4)(c) as applying only to cases where a claimant has applied to receive both IRBs and NEBs with regard to one, single date of loss and has been given and has completed the Election Form. And, although I have previously found in this decision that she is entitled to an IRB in the amount of $255.71 per week, that entitlement arose from a different accident on an earlier date of loss. After considering all of the irregularities in the Insurer’s adjustment process I have found that there is a regulation-driven technical requirement, once again, for the Insurer to pay Ms. Sivananthan a Non-Earner Benefit. So, this leads one to the conclusion that she should now be receiving $185.00 per week for NEBs over and above the IRB amount from the prior accident. However, I cannot conclude that she is in the legal position to “double collect” the NEB along with the IRB due to the provisions of section 12(2) of the Schedule set out below.

12(1) The 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 satisfies any of the following conditions:

1. 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 does not qualify for an income replacement benefit.

2. 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, or

ii. completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training. O. Reg. 34/10, s. 12 (1).

12(2) Subject to subsection (3), the amount of a non-earner benefit is $185 for each week during the period that the insured person suffers a complete inability to carry on a normal life, less the total of all other income replacement assistance, if any, for the same week. O. Reg. 34/10, s. 12 (2). [emphasis mine]

The numbering of this section seems to have been somewhat defective, so I will requote the words I have enlarged above - “less the total of all other income replacement assistance, if any, for the same week.” Clearly, an IRB is “income replacement assistance”, regardless of the reason(s) that it is being paid or the fact that it arose from a different date of loss, and therefore I conclude that as long as Ms. Sivananthan continues to receive weekly IRBs pursuant to this Order, she cannot also receive NEBs.

Accordingly, I have found initial entitlement to an NEB with regard to the second date of loss, but I cannot and will not order it to be payable to Ms. Sivananthan unless and until her IRB payments are legally stopped by Coachman.

Special Award:

Ms. Sivananthan has requested me to consider making a special award in her favour based upon her submission that Coachman has “unreasonably withheld or delayed payments” in this matter.

My authority to make a special award arises directly out of the Insurance Act and is set out in section 282(10) in the version of that Act which was in force at the time of the two dates of loss which form the subject of this Arbitration. I have set this out below:

Insurance Act

R.S.O. 1990, CHAPTER I.8

Historical version for the period August 16, 2013 to May 31, 2014.

Last amendment: 2013, c. 2, Sched. 8.

Arbitration

282(1) An insured person seeking arbitration under this section shall file an application for the appointment of an arbitrator with the Commission. R.S.O. 1990, c. I.8, s. 282 (1); 1996, c. 21, s. 38 (1).

Special award

282(10)If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.

Ms. Sivananthan has successfully demonstrated, and I find as a fact, that Coachman failed, on a consistent and repeated basis, to follow the requirements of the Schedule while adjusting each and all of the Applicant’s claims for Income Replacement Benefits, Non-Earner Benefits, and Medical and Rehabilitation Benefits concerning each of the two dates of loss which form the basis of this Application for Arbitration.

The question I must answer is whether I find that Coachman has unreasonably withheld or delayed payments with regard to the Applicant’s claims. The failures to pay started with the original eligibility for Income Replacement Benefits, which the Insurer never made any effort to determine because it bogged itself down in the quantum calculations and refused, unreasonably in my opinion, to use the available, sufficient information to determine the appropriate weekly amount payable. The fact that Coachman still has not paid the first two treatment amounts set out by Gibson, starting with an OCF-23, even though they steadfastly maintained the position that Ms. Sivananthan’s injuries were minor and that they fell within the MIG. This is prima facie unreasonable and there can be no excuse for it. Failure to properly set up assessments pertaining to all of the other treatment plans, and relying upon an insufficient paper review with regard to the only actual assessment plan submitted was also patently unreasonable, in my opinion. The other most egregious unreasonable behaviour by the adjuster was the complete refusal, based upon reasons unknown to the Schedule, to reschedule the one assessment date that Ms. Sivananthan notified them that she was too ill to attend. And, finally, the Insurer failed to properly respond to Ms. Sivananthan’s application for Non-Earner Benefits when they did not deliver an Election Form to her concerning the second date of loss – which is entirely illogical and inappropriate under the provisions of the Schedule because the Applicant had submitted an OCF-3 which indicated that she met the medical eligibility test for NEBs.

I find, therefore, that Coachman unreasonably withheld or delayed payments to Ms. Sivananthan. Accordingly, I order Coachman to pay a special award of 50 per cent of the amount to which Ms. Sivananthan was entitled at the time of each of the benefits I have found to be due and payable in this Order, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

I note that section 282(10) of the Insurance Act was not amended with regard to the amount of interest to be paid on such awards and that the mandatory rate of interest remained at 2% per month, compounded monthly at the time of these accidents.

The Schedule, which is a regulation and hence not legally capable of amending the statute from which it was derived, was amended as of September 1, 2010 to read as follows:

Overdue payments

51(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation. O. Reg. 34/10, s. 51 (1).

51(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue until it is paid, at the rate of 1 per cent per month, compounded monthly. O. Reg. 34/10, s. 51 (2).

Accordingly, we have a mixed situation with regard to the amount of interest payable (1% per month, compounded monthly) on the overdue payments I have found with regard to the specific claims set out in the Applications for Arbitration herein as compared with the interest payable (2% per month, compounded monthly) on the special award I have ordered. The wording of the Insurance Act is very definite in this regard and makes the interest retroactive to the time the benefits first became payable under the Schedule. Based upon this wording, I conclude that the special award pertaining to the Income Replacement Benefits payable hereunder will accrue interest at the 2% per month rate retroactively to December 4, 2013. Similarly, the special award(s) applicable to the various treatment plans I have approved will accrue interest at the 2% per month rate from the 10th day after each one was submitted to Coachman because that is when each one of them became payable. The actual overdue Income Replacement Benefits payments and each of the treatment plans themselves will accrue interest at the 1% rate pursuant to the September 2010 changes to the Schedule. These two separate interest calculations can be worked out between the parties for each benefit.

EXPENSES:

I find that Coachman is liable to pay Ms. Sivananthan’s full expenses in respect of the arbitration as well as full interest on the overdue payment(s). If the parties cannot reach an agreement as to the appropriate level of expenses to be paid, an expense hearing can be arranged with the Commission through the regular procedures set out in the DRPC.

November 17, 2017

David Snider Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 308

FSCO A15-007717 & A15-007718

BETWEEN:

SUVISINY SIVANANTHAN

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

A– Concerning the November 27, 2013 date of loss:

1. Ms. Sivananthan is entitled to receive a weekly income replacement benefit at the rate of $255.71 per week, less post-accident income pursuant to s. 7(3) of the Schedule, from December 4, 2013 to present and ongoing.

2. No, Coachman did not properly characterize Ms. Sivananthan’s impairment(s) as minor and falling within the Minor Injury Guideline.

3. Ms. Sivananthan is entitled to payment for the cost of an Occupational Therapy Assessment, including a Form 1 – Assessment of Attendant Care Needs, dated March 26, 2014 provided by Allied-Med Trauma Evaluations.

4. Ms. Sivananthan is entitled to receive medical benefits in the following amount(s) for medical services set out in various treatment and assessment plans (OCF-18 and/or OCF‑23 forms) provided by the Gibson Wellness Centre:

a. $2,200.00 for physiotherapy set out in an OCF-23 dated December 28, 2013 and sent to Coachman on the same date;

b. $1,245.64 for physiotherapy set out in an OCF-18 dated February 24, 2014 and sent to Coachman on February 26, 2014;

c. $1,206. 53 for massage therapy and acupuncture set out in an OCF-18 dated April 7, 2014 and sent to Coachman on April 28, 2014.

5. Coachman is liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Sivananthan.

6. Coachman is liable to pay Ms. Sivananthan’s expenses in respect of the arbitration.

7. Ms. Sivananthan is not liable to pay Coachman’s expenses in respect of the arbitration.

8. Ms. Sivananthan is entitled to interest for the overdue payment of benefits.

B – Concerning the April 16, 2014 date of loss:

1. Ms. Sivananthan is entitled to receive a non-earner benefit in the amount of $185.00 per week from October 15, 2014, to present and ongoing. However, while Ms. Sivananthan continues to receive Income Replacement Benefits pursuant to this order, she cannot also collect these Non-Earner Benefits.

2. Coachman did not properly characterize Ms. Sivananthan’s impairment(s) as minor and falling within the Minor Injury Guideline.

3. Ms. Sivananthan is entitled to receive medical benefits in the following amount(s) for medical services set out in various treatment and assessment plans (OCF-18 and/or OCF‑3 forms) provided by the Gibson Wellness Centre:

a. $200.00 for the cost of an OCF-3 Disability Certificate dated May 16, 2014;

b. $3,396.10 for physiotherapy set out in an OCF-18 dated May 16, 2014;

c. $3,089.00 for physiotherapy, massage therapy, and acupuncture set out in an OCF-18 dated November 1, 2014;

d. $1,234.58 for physiotherapy set out in an OCF-18 dated February 9, 2015?

4. Coachman is liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Sivananthan.

5. Coachman is liable to pay Ms. Sivananthan’s expenses in respect of the arbitration.

6. Ms. Sivananthan is not liable to pay Coachman’s expenses in respect of the arbitration?

7. Ms. Sivananthan is entitled to interest for the overdue payment of benefits.

November 17, 2017

David Snider Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.