Tribunal File Number: 16-000608/AABS
Case Name: 16-000608 v TD General Insurance Company
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:
Applicant
Applicant
And
TD General Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Claudette Leslie
APPEARANCES:
Counsel For the Applicant: Kwaku Bona
Counsel For the Respondent: Rebecca J. Brown
HEARD: Written Hearing: December 19, 2016
OVERVIEW:
The applicant was injured in two automobile accidents on January 11, 2015 and February 10, 2015.1 He sought benefits pursuant to the Statutory Accident Benefits Schedule. - Effective September 1, 2010 (''Schedule'').
The applicant had been working at three separate jobs at the time of the accidents. The applicant applied to his insurer for and received income replacement benefits in the amount of $400.00 weekly for the period covering January 19 to July 29, 2015.
The applicant applied for and received income replacement benefits in the amount of $400.00 weekly for the period covering January 19 to July 29, 2015. The insurer suspended further payments on the grounds that the applicant failed to attend an insurer’s Examination Under Oath (EUO) initially scheduled for June 2015.
The applicant attended the EUO on September 28, 2016 more than 18 months after the accidents. However, in November 2016, the respondent denied the applicant’s income replacement benefit, on the grounds that among other things, the applicant failed to provide evidence of reported income for the years 2014 and 2015 to Revenue Canada.
The applicant contends that he is eligible for continued payment of an income replacement benefit, and that the amount should reflect the optional benefits he secured before the February 2015 accident. The respondent disputes the applicant’s claim. The respondent also submits that the income replacement benefit paid to the applicant was on a good faith basis, rather than legitimate proof of reported income.
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES TO BE DETERMINED:
The applicant’s written submissions identify the issues in dispute as follows.
Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00/$1,000.00 for the period of July 29, 2015 to date and ongoing with respect to the motor vehicle accidents of January and February 2015?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to costs?
Is the applicant entitled to receive a ‘special award’ pursuant to section 10 of Regulation 664 because the respondent allegedly unreasonably withheld or delayed payments to the applicant?
RESULT:
- Considering all of the relevant evidence provided regarding the January and February 2015 accidents, and for the reasons set out below, I find the applicant failed to establish that, on a balance of probabilities, he is entitled to:
i. An income replacement benefit for the period in question;
ii. interest payment on any outstanding benefit payment;
iii. costs; or
iv. a special award.
BACKGROUND:
On January 11, 2015 the applicant had almost completed a left turn when he was struck by another vehicle which had failed to stop at a red light. His vehicle was hit on the rear driver’s side. On February 10, 2015, the applicant was stopped at a red light when he was hit from behind by another vehicle and pushed into a police car in front of him. The air bag did not deploy in either accident and medical emergency measures were not required in either case. The applicant received therapy for injuries he sustained in the January accident and he continued to do so after the February accident.
At the time of the accident in January 2015 the applicant was employed at Yogen Fruz, an Ontario corporation named KIBO, and he also worked at his father’s business. He claimed income replacement benefits (IRB) based on the 4-week employment period prior to the accident in January 2015. The applicant has not returned to any form of employment since the January 2015 accident.
The respondent paid income replacement benefits from January 19 to July 29, 2015; when the insurer suspended further payments on the grounds that the applicant failed to attend an arranged insurer’s EUO. An Examination Under Oath took place on September 28, 2016. Notwithstanding the applicant’s attendance at the EUO, the insurer did not reinstate the income replacement benefits; and subsequently in November 2016, the insurer denied the claim for IRB benefit.
I have determined that the applicant has not established he is entitled to an income replacement benefit for the reasons set out below.2
PRELIMINARY ISSUES:
In the submissions before me, the applicant raises two issues that were not raised at the case conferences. I will address these issues as preliminary matters.
First, the applicant claims that the respondent improperly terminated his income replacement benefits allegedly because he did not attend an EUO arranged in 2015. The applicant refers to the respondent’s letter of August 13, 2015 to support his claim.
I find this is not the case. The letter indicates that the respondent was suspending, rather than terminating, further income replacement benefits pending the applicant’s attendance at a scheduled EUO. As indicated above, the claim was denied in November 2016 after the applicant attended the EUO in September 2016.
Secondly, the applicant raised the issue of ‘bad faith’ on the basis that the respondent refused to accommodate his request for a convenient EUO date. The applicant submits that the respondent improperly withheld and/or stopped payment of the income replacement benefit in a manner that is contrary to the provisions of the Schedule. For the reasons set out below, I find no ‘bad faith’ conduct by the respondent in scheduling the EUO. On this issue, I also find neither costs or a special award are warranted.
The applicant’s position is that the respondent only gave him 6 days’ notice to attend an EUO scheduled for July 28, 2015.3. The applicant’s representative was unable to attend due to scheduling conflicts. The respondent re-scheduled the EUO and in an August 18, 2015 letter, it requested the applicant’s attendance on September 29, 2015. The applicant advised he was unable to attend as he was observing a Jewish holiday on that day.
The respondent provided documentation and evidence that presents a more comprehensive picture of their attempts to schedule the EUO. In a March 30, 2015 letter, the respondent sought additional information to determine income replacement benefits entitlement and required attendance at an EUO. In consultation with the applicant’s representative the examination was scheduled for June 12, 2015. At the applicant’s request, the examination was moved to June 29, 2015. The applicant’s representative later advised the respondent that the applicant would be out of town due to family matters and he would be unable to attend. The representative also indicated that he was unable to contact the applicant to arrange a convenient, subsequent date.
The respondent unilaterally arranged a July 28, 2015 examination date, and it notified the applicant and his representative of the new date in letters of July 9 and 20, 2015 respectively. In the letters the respondent advises that the applicant’s benefits would be suspended if he failed to attend the July 28, 2015 examination.
As a reminder, the respondent counsel’s office contacted the applicant’s counsel on July 27, 2015 about the imminent examination scheduled for the next day. The applicant’s representative acknowledged receipt of the respondent’s July 9, 2015 communication and indicated he had an arbitration scheduled for July 27 to 29, 2015 and therefore was unable to accompany the applicant. The respondent’s office advised that, at such a late stage, the examination would proceed as planned, and the applicant’s representative was advised to have someone attend the 10:00 a.m. examination on July 28, 2015 or the applicant’s benefits would be suspended. The respondent sent an email to Jonathan Tkatch, counsel in the office of the applicant’s representative, confirming its intention to proceed with the scheduled examination and the possible suspension of benefits. Mr. Tkatch’s e-mail response states, “I understand. I will pass your note along to Kwaku.”
The applicant did not attend the EUO on July 28, 2015. The respondent suspended the applicant’s income replacement benefit and advised the applicant in a letter dated August 13, 2015. The letter also advised the applicant or his representative to contact the respondent in writing with their availability for a rescheduled examination before his benefit would resume. The applicant provided available dates in an August 18, 2015 e-mail; and both offices agreed to a September 29, 2015 date. Notice was served on the applicant to this effect. On August 19, 2015 the applicant’s representative informed the respondent’s office that the applicant was unavailable on September 29, 2015.
Finally in the Fall of 2015 both sides agreed their schedules allowed for an examination date sometime after February 2016. The applicant confirmed in writing that he would be responsible for the cost of the examination if he failed to attend another arranged EUO.
The respondent attempted to contact the applicant in early 2016 to once again reschedule the EUO but they were unsuccessful. Letters from the respondent dated April 7 and June 9, 2016 indicate they had not heard from the applicant or his representative regarding the EUO. Subsequently, in consultation with the applicant’s representative, an EUO was scheduled for September 28, 2016. The applicant attended the EUO on September 28, 2016.
Based on the evidence outlined above, I accept the respondent’s chronology of events and attempts to schedule the EUO. I find that the respondent was diligent and attempted to accommodate the applicant’s circumstances throughout the scheduling process. Therefore, I find no merit in the applicant’s claim that the respondent acted in bad faith.
EVIDENCE/ANALYSIS:
Issue 1: Is the applicant entitled to income replacement benefits for the period covering July 29, 2015 and onwards?
Section 5 of the Schedule requires an insurer to pay an injured, insured individual an income replacement benefit if, as a result of the accident, the insured person suffers a substantial inability to perform the essential tasks of their employment.
To qualify for income replacement benefits within the first 104 weeks after the accident, the individual must prove that on a balance of probabilities, they have a substantial inability to perform the essential tasks of their employment. The test is more stringent for the post-104 week period.
Unless an insured has purchased optional benefits, the maximum weekly amount payable for income replacement is $400.00. In this case the applicant, subsequent to the January 2015 accident and prior to the February 2015 accident, purchased optional benefits to increase the maximum weekly amount up to $1,000.00.
The applicant received income replacement benefits ($400.00 weekly) after the January accident starting January 18, 2015, up to July 29, 2015. The applicant now seeks an ongoing income replacement amount, that reflects the purchase of optional benefits after the January accident.
As a first step, I must turn my mind to the issue of entitlement. To determine the applicant’s entitlement to the income replacement benefit and as the above provisions stipulate, I must answer two questions. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of his employment?
The burden of proof rests with the applicant and the standard of proof is ‘on a balance of probabilities’. Having considered all of the relevant evidence, I am unable to find that, on a balance of probabilities, the applicant is incapable of performing the essential tasks of his employment, as a result of the motor vehicle accidents; for the period in question, July 29, 2015 to date.
The essential tasks of the applicant’s employment:
The applicant submits he was working at three separate jobs at the time of the first accident: Yogen Fruz, KIBO and at his father’s business. The applicant has not returned to any employment since the January accident.
The applicant relies solely on two employment confirmation forms, disability certificates provided for both the January and February accidents and hospital records, to support his claim.
The applicant provided an Employer’s Confirmation Form (OCF-2) from Yogen Fruz dated January 16, 2015. It indicates the start date of the applicant’s employment as December 1, 2014 and the last day of work as January 10, 2015, the day before the accident. The applicant’s job title is noted as General Franchise Manager. His responsibilities are stated as: “franchise management, regular travel, franchise day to day support, strategy for expansion, and market development communications.”
The applicant did not submit an employer confirmation form regarding his employment at KIBO. However, a Statement of Remuneration (T4) for the year 2014 indicates his employment income as $5,040.00.
The applicant also provided confirmation of his employment with his father’s company, dated November 28, 2016, almost two years after the accident. His employment tenure is indicated as 11 days from January 1 to January 11 2015. His role is listed as Director, Strategic Planning. The essential tasks of his employment are described as: “focusing the corporation’s vision by spearheading development & investment opportunities” including, “liaise and source opportunity by coordinating the company needs, travel, office & creative thinking. Full executive control.”
Disability Certificates submitted by the applicant provide negligible employment-related information. The applicant submitted a Disability Certificate (OCF-3) dated January 19, 2015, completed by Dr. Josh Brandes, a chiropractor. The Certificate indicates the applicant was “not currently working.” The other sections on the form in respect of work-related questions, such as the “type of work”, were left unanswered.
After the second accident on February 10, 2015, the applicant submitted another application along with the corresponding Disability Certificate (OCF-3) completed by Dr. Brandes and dated March 27, 2015. Similar to the January Disability Certificate, questions regarding the applicant’s employment in this Certificate were also left unanswered.
Although there is no indication of the applicant’s employment or type of work involved, in the March 27, 2015 Disability Certificate, Dr. Brandes states, “[The Applicant] cannot work as his employment requires him to sit and stand for long periods. He is also cognitively unable to perform the tasks involved…limited concentration, sleeplessness etc.” In both Certificates, the doctor suggests a 9-12 week recovery period respectively. It is unclear which of the applicant’s employment roles Dr. Brandes considered.
I find on the evidence provided that the reported principal tasks of the applicant’s employment were predominately of an intellectual, planning and/or decision making nature. For example, his tasks at Yogen Fruz included providing day to day support, “strategy for expansion, market development communications;” and at his father’s company he spearheaded development and investment opportunities, was responsible for “creative thinking” and he met with people. Both jobs included some travelling to conduct the responsibilities of his employment. The applicant’s evidence does not provide any specific details of the potential physical requirements, if any, of the various employment positions.
The applicant’s accident related impairments:
- The applicant’s impairments are presented primarily by way of the disability certificates completed by Chiropractor Brandes and hospital records.
a. Disability Certificate of January 13, 2015 details multiple injuries including, headache, low back sprain, radiculopathy, neck spasm and sleeplessness/anxiety. In answer to the question asked, the Certificate indicates that the applicant was unable to substantially perform the essential tasks of his employment, and he could not return to work on modified duties. The doctor proposed 9 – 12 weeks recovery and he recommended co-management with neurologist and psychologist.
b. Disability Certificate of March 27, 2015 details injuries including, headache, low back sprain, radiculopathy, neck spasm, sleep anxiety, depression, cervical sprain and wrist sprain. Although no employment information is noted in the Certificate, as indicated above in paragraph 44, the doctor states that the applicant was unable to work at the activities of his employment as a result of the accident. The doctor again suggests psychological and neurological assessments and a 9 – 12 week recovery period.
c. Hospital records: Toronto General Hospital and Toronto Western Hospitals pre-accident records indicate that the applicant attended on his own account on June 9, 2014 regarding symptoms including chest pain of non-cardiac features and lethargy. On February 14, 2015, the applicant was taken to the emergency department due to various symptoms including chest pains of a cardiac nature. Hospital notes indicate the possibility that the applicant may have taken too many allergy pills, that day, for nasal congestion. I find no evidence that the hospital attendance of February 14, 2015, was related to the motor vehicle accident.
The respondent approved the applicant’s claim for income replacement benefit, as evidenced by the fact that the applicant received the maximum IRB payments allowed, starting on January 19, 2015 subsequent to the accident that occurred that month. The payments continued un-interrupted and un-disputed up to July 29, 2015, beyond the 12-week recovery period indicated in the respective Disability Certificates.
The disagreement between the parties, which partly led to this application, arose when the respondent suspended, and later denied, further payments beyond July 29, 2015. The applicant takes the position that his entitlement to income replacement benefits should continue beyond July 29, 2015; and the respondent denies this claim. To determine this issue, I must consider the condition of the applicant’s accident-related impairment, especially since a significant amount of time had elapsed (more than 12 weeks) since the disability certificates of January and March 2015.
Did the applicant’s accident-related impairment persist beyond July 29, 2015, whereby the applicant suffered a substantial inability to perform the essential tasks of his employment?
The applicant provided no new medical evidence to support a finding that his accident-related impairment had persisted beyond the 9-12 week recovery period indicated in the Disability Certificates of January and March 2015. Nor did the applicant provide any evidence that he was unable to function in his previous employment capacity.
To determine the applicant’s accident-related condition as of July 2015, I must rely on Insurer’s Examinations (IE) conducted by: psychologist, Dr. Fabio Salerno on September 27, 2016 and general practitioner, Dr. Paul Tepperman on October 6, 2016. The IEs are the only medical evidence before me, subsequent to the March 2015 Disability Certificate.
Dr. Salerno found the applicant was not delusional or hallucinogenic and he rendered a diagnosis of “Adjustive disorder with Mixed Anxiety and Depressed Mood.” Dr. Fabio Salerno’s psychological assessment concluded that the accidents did not psychologically prevent the applicant from returning to work and although he had been working at Yogen Fruz for 14 months before the January accident, he had stopped working because of physical (pain in his back and thighs), as opposed to any psychological impairment.
The applicant also self-reported to Dr. Salerno that he had “concentration difficulties with reading”; and that he was in fact contemplating returning to previous employment in the real estate development industry.
Dr. Tepperman reports that the applicant complained of neck-tightness aggravated by immobility and relieved by stretching, upper back pain, headaches occurring approximately four times each week, and anxiety. The doctor notes that the applicant sustained uncomplicated soft tissue injuries as a result of the February accident, which the doctor indicates “have had more than sufficient time to heal.”
I conclude from the medical reports of doctors Salerno and Tepperman, that they were unable to find any lingering accident-related injuries 18 months after the accidents.
Does the applicant’s lack of reading concentration constitute an impairment that substantially prevents him from engaging in the tasks of his employment? I have considered the following in determining this issue. Undoubtedly, reading is an intrinsic part of, what I have gleaned from the evidence provided, to be the applicant’s mainly intellectual employment tasks. There is no indication that the applicant attempted to return to any type of employment to determine whether his concentration in fact prevented him from working in the time that has elapsed since the accidents. Notwithstanding his statement to Dr. Salerno that he believes his lack of concentration may impact his ability to engage in the tasks of his employment, I do not have any evidence before me regarding the applicant’s ability to concentrate affecting his ability to perform his work functions. Further, the applicant himself reports that he was not prevented from returning to work.
Given the lack of convincing evidence on this point, I am unable to find that, on a balance of probabilities, a lack of concentration caused the applicant to suffer a substantial inability to perform the essential tasks of his employment.
The respondent paid income replacement benefits well beyond the recommended 9-12 week recovery period for the January 2015 accident-related injuries and the recommended 9-12 week recovery period for the February 2015 accident-related injuries. I find no grounds that would warrant payment of income replacement benefits beyond that already paid by the respondent.
Having considered all of the relevant evidence provided, I find the applicant has not established that on a balance of probabilities, as a result of the accidents, he suffers a substantial inability to perform the essential tasks of his employment or that he is entitled to an income replacement benefit beyond July 29, 2015.
Issue 2: Is the applicant entitled to interest on overdue payment of benefits?
- As indicated above, I find the applicant is not entitled to the income replacement benefit claimed for the period in question; and therefore, there is no need to determine quantum. Since there are no overdue payments, the applicant is not entitled to interest.
Issue 3: Is the applicant entitled to costs?
Tribunal Rule 19.1 allows for parties to request costs, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct. Both parties seek costs in this case.
The applicant claims that the respondent’s conduct warrants the awarding of costs. The applicant provides no details of alleged frivolous or vexatious conduct; nor have I found any merit in the claim that the respondent unreasonably withheld benefits to which the applicant is entitled or that it acted in bad faith.
As a party to the application before the Tribunal, and in the interest of ‘natural justice’, the respondent is obligated to participate in the dispute resolution process. The respondent is seeking costs to cover the “expenses for this hearing”. Cost awards are not meant to compensate parties for bringing or defending claims. I find the respondent’s cost request to be unwarranted and contrary to the Rule and spirit of the dispute resolution process.
Issue 4: Is the applicant entitled to receive a special award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
The applicant requested a special award pursuant to section 10 of Ontario Regulation 664 (“Reg 664”). Section 10 of Reg 664 states that the Licence Appeal Tribunal may 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 if an insurer has unreasonably withheld or delayed payments.
Since I found the respondent did not unreasonably withhold or delay payments and there is nothing payable, no award under Reg 664 will be granted.
Having considered all of the relevant evidence provided, and for the reasons contained herein, the following order is issued
The Tribunal orders that:
- The application is dismissed.
Released: May 12, 2017
__________________________
Claudette Leslie, Adjudicator
Footnotes
- The parties participated in settlement discussions at case conferences held on August 10, 2016 and October 21, 2016. At the case conference, the parties agreed to combine this matter with that of a second accident which occurred on February 10, 2015.
- The applicant claimed the calculation of the IRB must consider the optional benefits he secured after the January accident and before the February 2015 accident, and reflect a weekly maximum amount of $1,000.00 less amounts paid. --- I do not find it necessary to address the parties’ arguments regarding quantum of the IRB.
- Letter dated July 22, 2015.