LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal File Number: 16-000583/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
M. J.
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
Adjudicators: D. Gregory Flude, Vice Chair Eleanor White, Vice Chair
Appearances:
Applicant: Self-Represented
For the Respondent: Tran Quong
Counsel for the Respondent: Sarah Hurowitz
HEARD: Licence Appeal Tribunal: November 21, 2016
REASONS FOR DECISION AND ORDER
OVERVIEW
The applicant was injured in a motor vehicle accident on January 28, 2015. He applied to the respondent for payment of an income replacement benefit and for payment for a number of medical benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied him payment of the benefits he sought and he has now applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute.
The respondent does not deny that the applicant would qualify for an income replacement benefit. The respondent takes the position that the applicant earned more money following the accident for the balance of 2015 than he had earned before the accident and therefore he has no loss. With respect to 2016, the respondent takes the position that it has continually asked the applicant for financial disclosure. The applicant has failed to provide the necessary documents and the respondent’s position is that it has nothing upon which it can calculate the applicant’s entitlement.
With respect to payment of the medical benefits sought by the applicant, the respondent points out that the applicant is seeking repayment costs incurred in purchasing medical marijuana. In order for the applicant to have legal access to medical marijuana, he needs a “medical document” as that term is defined in legislation. So far the applicant has not provided a medical document authorizing access to medical marijuana. To pay for medical marijuana in the absence of a medical document would, in the respondent’s submission, make it a party to trafficking in a controlled substance.
We find in favour of the respondent on all of the issues. The documentation it sought to assist the applicant in applying for an income replacement benefit in 2016 was neither extensive nor onerous to amass. The source of the information was from the applicant’s employer. He is a director of the company that employs him and has access to the information. It was open to him to have the company’s accountant forward the relevant documentation to the respondent. The applicant declined to do so, even in the face of an order of the Tribunal.
PRELIMINARY ISSUES
There were two preliminary issues. The first arose out of the fact that the applicant had applied for both an income replacement benefit and a non-earner benefit in his Application. The second arose out of the applicant’s late disclosure of documents he wished to rely on at the hearing.
In his Application to the Tribunal, the applicant had sought both an income replacement benefit and a non-earner benefit. Section 5(2) of the Schedule makes entitlement to these benefits mutually exclusive. According to s. 35, an injured person must elect which claim to pursue within 30 days of receiving notice from the insurer that the party cannot pursue both benefits. The evidence before us shows that the applicant and insurance company had always treated with each other on the basis of the applicant’s entitlement to an income replacement benefit. It would appear that the first mention of entitlement to a non-earner benefit was in the Application to the Tribunal. We explained the nature of both benefits to the applicant and the fact that they were mutually exclusive. The applicant withdrew his claim for a non-earner benefit.
The applicant filed a number of documents on Friday, November 18, 2016. The respondent objected to the late filing and asked that the documents be excluded. This matter went to a case conference on September 7, 2016. The Tribunal issued an order requiring the applicant to disclose documents within certain time limits. Paragraph 8 of the order stated that no other documents than those listed were to be filed for use at the hearing without leave of the Tribunal. The applicant sought leave to rely on late-filed documents.
We gave the respondent some time to review the documents and identify those documents that it was seeing for the first time. It identified three documents. Two of those documents were corroborative of documents previously produced by the applicant. The respondent withdrew its objection to those two documents. It maintained its objection with respect to a medical report from a neurologist. Following further discussion, the applicant withdrew the medical report. The parties then consented to the admission into evidence of all of the remaining documents submitted by either party. The applicant’s documents were entered as exhibit 1 and the respondent’s as exhibit 2.
FACTS AND ANALYSIS
Income Replacement Benefit
Entitlement to an income replacement benefit is governed by ss. 4 through 11 of the Schedule. The applicable provisions with respect to the current matter are those that address the calculation of entitlement where an injured person returns to work following the accident. Put simply, an injured person is entitled to 70% of pre-accident income to a maximum of $400.00/week less 70% of any income earned following the accident. It is the respondent’s position that, after applying the above noted formula, the deduction for post-accident income eliminates any entitlement for the balance of 2015. The respondent submits that the applicant has failed to respond to its numerous requests for financial information for 2016. We agree with the respondent’s submissions.
Prior to the accident the applicant worked in construction installing aluminium soffit, siding, eaves troughs and fascia. He claims that he also worked part-time at The Beer Store, and had done so for five years. He has never filed a confirmation of employment for The Beer Store job. He was a director of the construction company. After the accident he returned to work. It is not disputed in this hearing that he was unable to carry out the essential tasks of his job as an installer. He returned to work for the company as a sales representative. He testified that he gave up the sales position because he was not making enough money, and his injuries rendered it too difficult for him to walk door to door to drum up business.
There are two ways in which the entitlement to an income replacement benefit is calculated. The first calculation involves taking an average of income for the previous four weeks and using that number to calculate the 70% of weekly income entitlement. If an injured person has not worked in the previous four weeks, then that person’s income from the previous 52 weeks becomes the basis for the calculation. The applicant’s income was calculated using the 52 week formula presumably, but not actually in evidence before us, because the accident occurred in the winter and things were slow in the construction industry. His T4 for the year 2014 shows that he earned $22,000.00. The difficulty for the applicant is that his T4 for the year 2015 shows income of $23,895.00. Applying the calculation formula above to deduct 70% of post-accident income, the applicant’s entitlement to an income replacement benefit in 2015 is zero.
The applicant testified that since giving up the sales position he has been unemployed and on social assistance benefits. Despite repeated requests from the respondent that he provide records of his employment and other income in 2016, he has failed to do so. Following the case conference on September 7, 2016, the Tribunal ordered the applicant to disclose to the respondent by September 30, 2016, paystub/payroll information from the places he alleges he was employed and complete employment records from after the accident to date. He has failed to produce these records. In the total absence of any information about his current income, including an absence of proof that he is on social assistance, there is nothing upon which to base a calculation for the quantum of an income replacement benefit. The applicant’s only answer to questions by the respondent was to wait until the 2016 tax assessment comes out.
Medical Marijuana
The applicant’s evidence was that three doctors have suggested he use medical marijuana to control his pain. None has noted it in the clinical notes and records. One of the facilities he visited specializes in the use of medical marijuana. The applicant insists that, through this clinic, he has been prescribed 2 grams per day of medical marijuana products. He uses a licence number to purchase the products on line, but does not have a document showing a right to use these products.
During cross-examination, the applicant was shown the notes of the clinic he says prescribed him medical marijuana. He agreed that none of the clinic’s records show that he has been recommended to use 2 grams per day on an ongoing basis.
The respondent relies on the regulatory scheme governing the prescribing of medical marijuana (spelled “marihuana” in the Federal legislation). The starting point for the analysis is s. 4 of the Controlled Drugs and Substances Act, S. C. 1996, c. 19 which prohibits possession of a controlled drug except as permitted by the regulations. Section 129 of the Marihuana for Medical Purposes Regulations, SOR2013-119, defines a “medical document” and sets out the information it must contain and s. 3(2) permits holders of a medical document to have marijuana in their possession.
The respondent submits that, in the absence of a medical document, the applicant is not entitled to possess and use marijuana for medical purposes. Despite repeated requests, the applicant has not produced his medical document. In the respondent’s view, it cannot fund the applicant’s use medical marijuana until he produces the correct authorization. We accept that submission notwithstanding the fact that the respondent’s own independent medical examiner thinks that marijuana may be useful in controlling the applicant’s pain.
ORDER
- Having heard all of the evidence and the submissions of the parties, we dismiss the applicant’s claims for an income replacement benefit and for funding of medical marijuana purchases.
Released: 09/01/2017
______________________________
D. Gregory Flude, Vice-Chair
___________________________
Eleanor White, Vice-Chair