Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: December 1, 2017

File: 16-000608/AABS

Case Name: H.T. v. TD General Insurance Company

Written Submissions By:

For the Applicant: Kwaku Bona, Counsel

For the Respondent: Rebecca J. Brown, Counsel

Overview

[1]. The applicant, H.T., was involved in three automobile accidents in 2015. With respect to the first two accidents, he applied for and received income replacement benefits (“IRBs”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, TD General Insurance Company (“TD”). TD suspended H.T.’s IRBs in July 2015 for failure to attend an Examination Under Oath (“EUO”), and then terminated them in November 2016 for failure to submit tax records.

[2]. H.T. applied to the Tribunal for dispute resolution under s. 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, claiming further IRBs, plus interest, costs and a “special award” on the basis that TD unreasonably withheld benefits. The Tribunal determined that H.T. was not entitled to further IRBs or the other relief claimed.

[3]. H.T. requests reconsideration of the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”). H.T. argues that:

a) the Tribunal made several factual errors in determining that he was not entitled to IRBs;

b) the Tribunal made errors of law by failing to find that TD was required to request further medical documentation before terminating his IRBs, and also by failing to find that TD breached H.T.’s right to have representation at his EUO;

c) the Tribunal violated the rules of procedural fairness; and

d) there is new medical evidence that could not reasonably have been obtained earlier.

[4]. For the reasons that follow, I dismiss H.T.’s request for reconsideration.

Background

[5]. H.T. was involved in automobile accidents on January 11, 2015, February 10, 2015 and May 15, 2015. TD provided him with IRBs from January 19, 2015 until July 29, 2015, when it suspended the benefit because H.T. failed to attend an EUO. After numerous attempts to reschedule, H.T. attended the EUO in September 2016. However, TD did not reinstate the suspended IRBs. Rather, TD terminated the IRBs in November 2016 after H.T. failed to send TD evidence of the income he reported to Revenue Canada.

[6]. The Tribunal issued its decision on May 12, 2017. The Tribunal determined that H.T. was not entitled to any further IRBs, as he had not established a substantial inability to perform the essential tasks of his employment beyond July 29, 2015. The Tribunal found that H.T.’s two disability certificates indicated that the recovery period would be between 9-12 weeks, ending prior to July 29, 2015. There was no evidence of any medical examination conducted for the purpose of determining entitlement to IRBs. However, the Tribunal considered two medical assessments that had been requested by TD for the purpose of determining entitlement to medical and rehabilitation benefits. After considering those reports, the Tribunal concluded that H.T. did not establish that, as a result of his accidents, he was substantially unable to perform the essential tasks of his employment beyond July 29, 2015. The Tribunal found there was no entitlement to further IRBs, interest, costs, or a “special award”.

ANALYSIS

[7]. H.T. requests that I reconsider the Tribunal’s decision on the grounds set out in Rule 18.2(a), (b) and (d):

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

Did the Tribunal make a significant error of fact?

[8]. H.T. submits that the Tribunal made several significant errors of fact in relation to the reports of two doctors – Dr. Salerno (a psychologist) and Dr. Tepperman (a general practitioner). The reports of Dr. Salerno and Dr. Tepperman, issued together in October 2016, were based on medical evaluations that TD had requested in order to assess H.T.’s entitlement to medical and rehabilitation benefits. The Tribunal found, based on Dr. Salerno’s report, that H.T. had stopped working due to physical, rather than psychological, injuries. The Tribunal also found based on Dr. Tepperman’s report that H.T.’s physical injuries had “more than sufficient time to heal”.

[9]. H.T.’s general submission is that the Tribunal erred in relying on the reports of Dr. Salerno and Dr. Tepperman to conclude that H.T. did not suffer a substantial inability to perform the essential tasks of his employment. I am not satisfied that the Tribunal made a significant error of fact such that the Tribunal would likely have reached a different decision. The Tribunal’s findings of fact were open to it on the evidence.

[10]. The specific factual errors alleged by H.T. are as follows.

[11]. First, H.T. takes issue with the Tribunal’s finding that Dr. Salerno concluded that the accidents did not psychologically prevent H.T. from working and that he stopped working due to physical, rather than psychological, impairment. I agree with H.T. that there is an inaccuracy in the Tribunal’s finding that Dr. Salerno “concluded that the accidents did not psychologically prevent the applicant from returning to work”. However, I do not find this to be a significant error such that the Tribunal would likely have reached a different decision.

[12]. Dr. Salerno’s report states that H.T. reported that the first accident did not psychologically prevent him from working, and that it was his physical injuries that prevented him from returning to work after that accident. I do not read the report as reaching any conclusion on whether the second accident psychologically prevented him from working. Therefore, it is not accurate to say that Dr. Salerno concluded that the “accidents” did not psychologically prevent H.T. from returning to work. However, as there was no other evidence that the second accident did psychologically prevent H.T. from working, I am not satisfied that this error would likely have affected the result. H.T. had the onus to establish that at least one of the accidents resulted in a substantial inability to perform the essential tasks of his employment. Dr. Salerno’s report was not being weighed against other evidence that H.T. had a psychological impairment that prevented him from working. Absent the Tribunal’s error, the Tribunal would still have been left with a lack of evidence that H.T. was psychologically prevented from working. Therefore, the Tribunal’s statement that the “accidents” did not psychologically prevent H.T. from working is not a significant error that would likely have affected the result.

[13]. Second, H.T. submits that the Tribunal misconstrued Dr. Salerno’s comment that H.T. contemplated a return to work “in the real estate and development industry”. He submits that the Tribunal took that statement to mean that he was in fact contemplating returning to his previous employment. H.T. points out that Dr. Salerno’s report also states that H.T. “did not have a return to work plan at this juncture”. I am unable to see any factual error in the Tribunal’s statement that H.T. had reported to Dr. Salerno that he was contemplating returning to his previous employment in the real estate development industry. This statement was included in Dr. Salerno’s report, and it was open to the Tribunal to rely on it and afford it due weight.

[14]. Third, H.T. submits that the Tribunal erred by finding that Dr. Salerno and Dr. Tepperman “were unable to find any lingering accident-related injuries 18 months after the accident.” H.T. submits that this is an error because Dr. Salerno diagnosed H.T. with adjustment disorder with mixed anxiety and depressed mood. I am not satisfied that the Tribunal erred in this regard. The Tribunal’s reasons acknowledge that H.T. was diagnosed with “adjustment disorder with mixed anxiety and depressed mood”. Read in context, the Tribunal’s reasons do not deny that H.T. had a psychological diagnosis. Rather, the Tribunal found that H.T. had not established that he had a psychological impairment that made him substantially unable to perform the essential tasks of his employment.

[15]. Finally, H.T. submits that TD did not ask Dr. Salerno to comment on whether H.T. was prevented from returning to work due to accident-related impairments. While that may be the case, the onus was on H.T. to put forward evidence of his ongoing entitlement to IRBs.

Did the Tribunal make a significant error of law?

[16]. H.T. submits that the Tribunal made two significant errors of law in relation to s. 37(1) and s. 33(3) of the Schedule.

i. Did the Tribunal make a significant error of law by failing to find that TD contravened s. 37(1) of the Schedule?

[17]. H.T. submits that TD unlawfully terminated benefits without complying with s. 37(1) of the Schedule. That section states that “[i]f an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary,” request a new disability certificate or medical examination. H.T. submits that the Tribunal erred by failing to determine that T.D. contravened s. 37(1) by terminating benefits without requesting that new information.

[18]. I do not agree that this is an error of law. Subsection 37(1) does not impose a requirement on an insurer to request a new disability certificate or insurer’s examination before terminating IRBs. That section states that the insurer “may” make such a request, but “not more often than is reasonably necessary”. The Tribunal made no error by failing to find that TD contravened that provision.

[19]. H.T.’s real concern appears to be that the Tribunal did not treat his disability certificates as determinative of ongoing entitlement to IRBs absent evidence to the contrary. The Tribunal’s reasons state that H.T.’s disability certificates indicate a recovery period of 9-12 weeks. H.T. submits that the Tribunal misinterpreted the words “anticipated duration” on the disability certificate as referring to “recovery period”. This is not an error of law, but rather relates to the weight that the Tribunal assigned to the disability certificates. It was open to the Tribunal to find that the disability certificates did not establish entitlement to IRBs beyond that 9-12 week period. It makes no difference whether the disability certificates referred to “anticipated duration” or “recovery period”.

ii. Did the Tribunal make a significant error of law by failing to find that TD breached s. 33(3) of the Schedule?

[20]. H.T. submits that the Tribunal erred by not finding that TD breached s. 33(3) of the Schedule when it suspended H.T.’s IRBs because H.T. was unable to attend his EUO. H.T. submits that TD first scheduled the EUO unilaterally on a July 28, 2015, when his representative was unavailable; TD then rescheduled it for September 29, 2015, when H.T. could not attend due to a religious holiday. Subsection 33(3) of the Schedule states that an applicant is entitled to have a representative at an EUO. Subsection 33(4) states that the “insurer shall make reasonable efforts to schedule the examination under oath for a time and location that are convenient for the applicant.”

[21]. I do not find that the Tribunal made an error of law in relation to s. 33 of the Schedule. The Tribunal considered H.T.’s argument that TD refused to accommodate his request for a convenient date. Based on correspondence submitted by TD, the Tribunal found that prior to the September 29, 2015 date that was scheduled unilaterally by TD, two dates were set in consultation with H.T. and both were cancelled at H.T.’s request. After cancelling the second date, H.T.’s representative advised TD that he was unable to contact H.T. to arrange a new date. At that point, TD unilaterally scheduled the EUO for July 28, 2015, providing 19 days’ notice to H.T. On July 27, 2015, the day before the scheduled EUO, H.T.’s representative advised TD that he could not attend because he had an arbitration scheduled for that day. TD advised that at such a late stage, the EUO would proceed as planned. H.T. did not attend and his benefits were suspended. H.T.’s representative then agreed to reschedule the EUO for September 29, 2015, but later advised that H.T. was unavailable on that date. The parties agreed to arrange a date several months later, but TD’s attempts to contact H.T. at that time were unsuccessful. H.T. ultimately attended an EUO over a year after his benefits were suspended.

[22]. The Tribunal found that TD was “diligent and attempted to accommodate the applicant’s circumstances throughout the scheduling process.” This finding was open to the Tribunal on the evidence. Further, as the Tribunal found that H.T. was not entitled to IRBs beyond July 29, 2015, the question of whether TD was entitled to suspend benefits on that date for failure to attend an EUO would not affect the result.

Did the Tribunal violate procedural fairness or natural justice?

[23]. H.T. submits that he was denied procedural fairness and natural justice because the Tribunal failed to “accurately account facts” and “follow and apply binding decisions and statutory principles”. Essentially, H.T. is arguing that the errors of fact and law alleged above amount to a breach of procedural fairness. There is no basis for reconsideration on this issue. Although H.T. disagrees with the Tribunal’s findings of fact and application of the law, he does not explain how he was denied a fair chance to make his case before the Tribunal.

New evidence

[24]. H.T. submits two pieces of new evidence that were not before the adjudicator at the hearing. The first is a medical document entitled Chronic Pain Assessment dated May 15, 2017. The second is a Treatment and Assessment Plan completed by a physician on June 1, 2017. H.T. submits that these documents could not have been obtained earlier.

[25]. While both documents were created after the Tribunal’s decision was released, H.T. has not explained why he could not have reasonably obtained additional medical documentation prior to the hearing. Parties at the Tribunal are expected to provide the Tribunal with all of the evidence that they intend to rely on to prove their case. The reconsideration process is not intended to be an opportunity for parties to fill in the evidentiary gaps that could have been addressed at the hearing. Therefore, the requirement of Rule 18.1(d) is not met.

Order

[26]. For the reasons set out above, H.T.’s request for reconsideration is dismissed.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: December 1, 2017