Tribunal File Number: 17-000787/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:
T.A.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
Adjudicator: Billeh Hamud
For the Applicant: Jono Schneider, counsel for the Applicant
For the Respondent: Karman Dhuga, counsel for the Respondent
Heard in writing: May 16, 2017
BACKGROUND:
The applicant was injured in an automobile accident on February 19, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule'').
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DETERMINED:
- The following are issues to be determined:
i. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 weekly, for the period of February 26, 2015 up to two years from date of the accident, less amounts paid; denied by the respondent on April 24, 2015?
ii. Is the applicant entitled to a medical benefit in the amount of $1,966.74 for medical services recommended by Syrehab Inc.; denied by the respondent on November 9, 2015?
iii. Is the applicant entitled to interest on any outstanding benefit payments?
RESULT:
I find on all of the evidence that the applicant is entitled to receive IRBs for the period of February 26, 2015 to December 18, 2016. However, for the foregoing reasons, the issue is moot since the respondent already paid the applicant her outstanding IRBs.
I find that the applicant is entitled to a medical benefit in the amount of $1,966.74 for medical services recommended by Syrehab Inc.
I find that the applicant is entitled to interest for the initial denial of the medical benefit in accordance with the Schedule.
ANALYSIS:
- Is the applicant is entitled to Income Replacement Benefits?
- Section 5(1)1 (i) of the Schedule states:
5 (1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
- The insured person,
i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment
The timeline in dispute can be separated into three periods, discussed in detail below. The Parties agree that the applicant is eligible for IRBs, and the evidence established that the applicant received IRBs from the respondent for Period #1. The Parties, however, disagree with the quantum of IRBs payable for Period #2. Additionally, the respondent takes the position that the applicant has failed to disclose income documentation for Period #3 and, therefore, is not entitled to IRBs during that period.
The evidence establishes that the applicant received IRBs from the respondent from February 26, 2015 to April 22, 2015 (“Period #1”). The respondent terminated IRBs after this time because the applicant returned to work at [a nursing home] performing full time duties and receiving full pay on April 6, 2015. She did not return to work at her second employment position at [a senior care center] after February 15, 2015. There is no dispute concerning entitlement or quantum of IRBs during Period #1.
The outstanding issue between the parties relates to the quantum of outstanding IRBs payable to the applicant from April 22, 2015 to February 26, 2017 (“Period
#2”).
(i) Quantum of Income Replacement Benefits from April 22, 2015 to February 26, 2017 (“Period #2”)
With respect to Period #2, the applicant did provide income documentation to the respondent. The applicant provided paystubs from [a nursing home] from April 13, 2015 to December 18, 2016.
I have reviewed the evidence in detail. In particular, I have reviewed the respondent’s calculations of the applicant’s entitlement to IRBs prepared by BDO Canada LLP (“BDO”) and also the applicant’s paystubs from April 22, 2015 to December 18, 2016. In response, the applicant has claimed that the respondent’s BDO report is inadmissible because the respondent retained BDO after the case conference. In addition, at paragraphs 10-12 of the applicant’s reply, the applicant has claimed that the BDO report is incorrect for the following reasons:
“10. In the alternative, the Applicant submits that the accountant makes a legal mistake in its calculation by limiting the IRB benefit to $400 per week and then reducing this amount by post-collision earnings. This results in reduced benefits paid.
11.Section 7 of the SABS confirms that the insurer can deduct 70% of post- accident income from the IRB. The IRB is lesser of the IRB calculation ($505.43) or $400.
12.The weekly benefit first looks at the IRB figure of $505.43 and then reduces it by post-collision earnings (with payment up to $400 per week). If the top up is greater than $400 per week then the insurer pays only the policy maximum of
$400 per week. An example is below (from page 6 of the accountant’s report) where the insurer paid $52.05 for one week when it should have paid $157.48 ($505.43 minus $347.95)”
First, I disagree with the applicant’s submissions that the BDO report is “inadmissible” because the respondent retained the BDO report after the case conference. With respect, that argument is without merit. The onus lies on the applicant to provide the necessary information for the calculation of the IRBs. In this case, the applicant failed to provide the paystubs necessary for the IRB calculation until April 13, 2017. The respondent should not be faulted for retaining an accountant to calculate the applicant’s quantum of IRB in the limited time available. In fact, I find the BDO report to be helpful in determining the applicant’s IRB entitlements.
Second, I also disagree with the applicant’s position that the BDO report is incorrect. The calculation relied upon by BDO is correct and in accordance with section 7 of the Schedule. Specifically, in accordance with section 7(3) of the Schedule, the respondent is entitled to deduct 70% of gross employment income from the amount payable during the period in which the applicant is eligible for IRB benefits. The amount payable cannot exceed $400 per week. There is no evidence that the BDO report contains an error with respect to this calculation.
Therefore, I rely on the BDO report and applicant’s paystubs in order to determine the quantum of IRBs owed to the applicant.
I find that the BDO report calculated the applicant’s IRB entitlement from February 26, 2015 to December 18, 2016 in the amount of $3,729.82. The evidence shows that the respondent paid the applicant $3,200.00 in IRBs on April 24, 2015.
On April 21, 2017, the respondent obtained a statement from the applicant’s second employer, [a senior care center], to obtain her income documentation from February 26, 2015 to February 26, 2017. Specifically, Ms. Y.G., Payroll Administrator at [a senior care center], stated that the applicant worked 10.5 hours every two weeks and her last day of work was February 15, 2015. She was paid until March 14, 2015. The applicant resigned from her employment on November 14, 2016. This information was also included in the BDO report.
As a result, the respondent noted a shortfall of IRBs in the amount of $529.82 plus $146.27 in applicable interest from February 26, 2015 to December 18, 2016. Accordingly, on April 27, 2017, the respondent sent the applicant a cheque in the amount of $676.09.
Therefore, the respondent has already paid the applicant all of the outstanding IRBs in respect of Period #2.
(ii) Quantum of Income Replacement Benefits after December 19, 2016 – (“Period #3”)
I find that the applicant is not entitled to IRBs for Period #3, since the applicant has failed to disclose any income documentation in order to establish an entitlement to IRBs.
The respondent asked for income documentation on multiple occasions prior to the case conference, at the case conference and after the case conference for the period from one year pre-accident to date. Specifically, at the case conference, the applicant was ordered to undertake, best efforts, to provide the respondent and Tribunal with T4 slips and paystubs covering the period from one year pre-accident to date. Upon reviewing the documents, the applicant has failed to disclose any T4 slips and paystubs after December 18, 2016. In this case, the applicant has failed to disclose any income documentation in order to establish an entitlement to IRBs for Period #3.
Since the applicant has failed to adduce any income documentation for Period
#3, I have dismissed the applicant’s claim for IRBs during that time period. As noted in section 33 (1)1 of the Schedule, the applicant is required to provide the insurer with “any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.” Pursuant to section 33(6), the insurer is not liable to pay any benefits during the time period in which the applicant has failed to provide the insurer with the information requested. However, under section 33(8) of the Schedule, if the insured provides this outstanding information to the insurer, the insurer “shall resume payment of the benefit, if a benefit was being paid; and shall pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in complying…”
- In 16-000270 v Allstate Insurance Company of Canada, 2017 CanLII 3144, the Tribunal correctly outlined the applicant’s positive obligation to disclose the information required by the respondent to assist it in determining entitlement to IRBs at paragraphs 84 and 85:
“84. Section 33(1) of the Schedule imposes a positive obligation on an Applicant to provide information required by the Respondent to assist it in determining entitlement to the IRB.
Section 33(6) states that the Respondent is not liable to pay a benefit in respect of any period during which the insured person fails to comply with providing the required information.”
I find that the applicant is not entitled to IRBs for Period #3, since there is insufficient evidence to determine the quantum of IRBs. Specifically, the applicant has failed to disclose any paystubs or other income documentation to the respondent for this time period. The applicant has also failed to explain the reason for not providing any income documentation for Period #3.
Therefore, the applicant is not entitled to IRB for Period #3 because of the applicant’s failure to comply with section 33(1) of the Schedule.
2) Is the applicant entitled to a medical benefit for medical services recommended by Syrehab Inc?
- On October 30, 2015, the applicant submitted an OCF-18 – Treatment Plan (“OCF-18”) by Asem Al-Sayed for active physiotherapy in the amount of
$1,966.74.
On November 9, 2015, the respondent denied the OCF-18 submitted by the applicant.
On November 10, 2015, the respondent wrote to the applicant and stated the reason of the denial as follows: “IE is being arranged with a Physiatrist to determine if the OCF-18 submitted by Al-Sayed, Asem is reasonable and necessary with regard to the injuries sustained in the motor vehicle accident.” The respondent also stated that the denial was in accordance with section 38 of the Schedule and that the respondent would be conducting an insurer examination in accordance with section 44 of the Schedule.
The applicant submits that the respondent failed to comply with section 38(8) of the Schedule by failing to provide medical reasons for the denial. Furthermore, the applicant states that the respondent failed to comply with section 38(9) and advise the applicant if it believed her injuries fell within the Minor Injury Guideline (the “MIG”).
The respondent failed to address the applicant’s claim that it did not comply with section 38(8) of the Schedule. Instead, the respondent simply stated that it ultimately approved the treatment plan, almost two years later, on March 29, 2017.
I agree with the applicant’s submissions that the respondent failed to comply with section 38(8) of the Schedule by failing to provide medical reasons for the denial of the OCF-18 dated October 25, 2015. The respondent has a duty to accept the applicant’s medical evidence in good faith. While the respondent had a right to seek a section 44 examination, the respondent could not deny the applicant’s benefit without stating a medical reason in accordance with section 38(8) of the Schedule.
As a result, I find the applicant was entitled to this medical benefit.
3) Is the applicant entitled to interest on any outstanding benefit payments?
Section 52(2) of the Schedule states that the insurer shall pay interest on an overdue amount of a payment of a benefit.
Since I found that the applicant was entitled to the medical benefit which the respondent only approved almost two years after the OCF-18 was submitted, the applicant is entitled to be paid interest in accordance with the Schedule.
I decline to award interest on the IRBs, since the income documentation to determine the IRBs was not provided to the respondent until after this Application was filed with the Tribunal.
CONCLUSION:
- For the reasons outlined above, I find the applicant is entitled to receive IRBs for the period of February 26, 2015 to December 18, 2016. The applicant is also entitled to receive a medical benefit in the amount of $1966.74 and any applicable interest.
Date of Issue: October 25, 2017
____________________
Billeh Hamud
Adjudicator