P.M. v. RBC General Insurance Company, 2017 CanLII 85689

Court File and Parties

Date: 2017-12-08 Tribunal File Number: 16-001611/AABS Case Name: 16-001611 v RBC 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:

P. M.

Applicant

and

RBC General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ruth Gottfried

APPEARANCES:

For the Applicant: Gursharan (Bobby) Sidhu, Counsel For the Respondent: Claudia Batista, Counsel

HEARD: IN PERSON March 7 and 16, 2017 and by written submissions

OVERVIEW:

1On July 31, 2014, the applicant, P.M., was the front seat passenger in a car driven by his daughter, when it was in a collision with an SUV. He suffered various injuries and applied for and received income replacement benefits as well as medical and rehabilitation benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

2The respondent, RBC Insurance (RBC), approved benefits for the applicant until the expenditure reached the maximum of $3,500 allowable for treatment of predominantly minor injuries under s. 18(1) of the Schedule. RBC denied treatment plans submitted subsequent to reaching that maximum.

3At the time of the accident, the applicant was a recent immigrant to Canada and spoke no English. His eldest son acted on his father’s behalf whenever necessary.

4Because the daughter was deemed at fault, the applicant was under the impression that he would not be covered by insurance for accident benefits, so he applied to Service Canada for EI. The process eventually took several months, including an appeal, before a final denial of EI benefits.

5When he eventually applied for accident benefits through RBC, the fracture injury he had sustained in the accident was missed and his claim was adjusted as though he was under the Minor Injury Guideline (MIG).¹

ISSUES:

6Preliminary Issue

RBC raised a preliminary issue as to whether the applicant is disentitled to accident benefits by reason of his failure to apply for benefits within the time limit imposed by section 32(1) or, pursuant to section 34 of the Schedule to provide a reasonable explanation?

7Issue 1 – Income Replacement Benefits

Is the applicant entitled to income replacement benefits in the amount of $400 per week, for the period of August 7, 2014 to date and ongoing?

8Issue 2 – Minor Injury Guideline (MIG)

Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?

9Issue 3 – Medical and Rehabilitation Benefits

a. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, TENS electrodes & completion of OCF-18 in the amount of $2,609.72 plus tax for a total amount of $2,659.01 in an OCF-18 dated March 27, 2015?

b. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, & completion of OCF-18 in the amount of $1,560.86 plus tax for a total amount of $1,591.12, in an OCF-18 dated April 5, 2016?

c. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, & completion of OCF-18 in the amount of $2,354.10 plus tax for a total amount of $2,399.46, in an OCF-18 dated June 4, 2015?

d. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, & completion of OCF-18 in the amount of $2,070.29 plus tax for a total amount of $2,108.11, in an OCF-18 dated August 11, 2015?

e. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy and completion of OCF-18 in the amount of $1,786.48 plus tax for a total of $1,816.74 in an OCF-18 dated November 17, 2015?

f. Is the applicant entitled to a cost of orthopaedic assessment recommended by Dr. Manoj Bhargava of $2,000.00, plus cost of completion, plus tax for a total amount of $$2,460.00 in an OCF-18 dated March 22, 2016?

g. Is the applicant entitled to a $200.00 completion fee for an OCF-18 dated March 22, 2016?

h. Is the applicant entitled to a $200.00 completion fee for an OCF-18 dated April 5, 2016?

RESULT:

10Based on the totality of the written and oral evidence and submissions before me, I find that:

a. On the preliminary issue, the applicant is not disentitled to accident benefits by reason of his failure to apply for benefits within the prescribed time limits.

b. The applicant is entitled to income replacement benefits in the amount of $400.00 weekly from March 27, 2015 to July 30, 2016, plus interest.

c. The applicant is not entitled to income replacement benefits in the post-104 week period after July 31, 2016.

d. The applicant was removed from the MIG by RBC in August 2015.

e. The applicant is not entitled to the following medical benefits as they were not submitted in dispute:

i. $2,659.01 – OCF-18 dated March 27, 2015

ii. $1,560.86 – OCF-18 dated April 5, 2016

f. The applicant is entitled to the following medical benefits plus interest where applicable:

i. $676.86 ($2,399.46 – less $1,722.60 already approved) OCF-18 dated June 4, 2015

ii. $1,816.74 – OCF-18 dated November 17, 2015

iii. $2,460.00 + HST – orthopaedic assessment dated March 22, 2016

g. The applicant is not entitled to a $200.00 completion fee for OCF-18 dated March 22, 2016.

h. The applicant is not entitled to a $200.00 completion fee for OCF-18 dated April 5, 2016.

PRELIMINARY ISSUE:

11RBC raised a preliminary issue as to whether the applicant is disentitled to accident benefits by reason of his failure to apply for benefits within the time limit imposed by section 32(1) or, pursuant to section 34 of the Schedule to provide a reasonable explanation?

12RBC’s position is that it had no notice of the accident until March 20, 2015, when it received the applicant’s application for benefits. The application was filed almost 8 months after the accident.

13The applicant’s position is that the respondent was notified of the accident by the applicant’s son shortly after the accident. The applicant claims that at that time, RBC denied third party coverage as the applicant’s daughter, the driver, was at fault. The applicant claimed that he was unfamiliar with the auto insurance claims process, and therefore believed he had to apply to Service Canada for employment insurance payments, rather than to RBC for accident benefits. He applied to Service Canada; was denied and appealed. His appeal was also denied.

14RBC refers to the correct statute governing the time frame within which an applicant must give the insurer notice if they intend to make a claim for accident benefits. The Schedule states in section 32(1) that a person shall notify the insurer no later than the seventh day after the accident, or as soon as practicable after that day. However, once the applicant has provided notice, the burden shifts to the insurer to “promptly provide” all the necessary information and documentation to enable the applicant to file a claim.

15If the applicant does not comply within the stated period, section 34 provides a redemptive clause for the applicant. Section 34 effectively states that if there is a reasonable explanation for the failure to comply with a time limit, an applicant is not disentitled to the benefit claimed.

16The applicant stated that his son called RBC to advise them of the accident. RBC submits that there is nothing in the adjuster’s log notes to indicate a communication was received.

17There is no evidence before me, other than the statement of the applicant that the son made a phone call to RBC and was given the information that it was not going to provide accident benefits coverage. Clearly, if there was a telephone call it did not generate a log note in the adjuster’s file or a package of accident benefit forms being sent to the applicant. The evidence from RBC is that the forms were sent out by letter a few days after the application actually was received.

18The applicant states that the application to Service Canada, their denial, his appeal and their subsequent final denial was the cause of the delay in applying for accident benefits. There is no evidence before me as to when the application to Service Canada was made – only the denial dates of September 17, 2014 and October 23, 2014.

19The applicant also offers evidence that he requested information from his employer and a doctor’s note confirming ill health, at Service Canada’s request. The family doctor’s Sickness Certificate was dated August 1, 2014 and the applicant emailed his employer on August 6, 2014 requesting an ROE. Considering the dates of these documents, it seems on a balance of probability that the initial request to Service Canada for employment insurance was made shortly after the accident.

20The final denial came from Service Canada on October 23, 2014. There is no evidence from either party as to why there was a delay in submitting an application for benefits from October 2014 to March 2015.

21RBC submits that when assessing whether an explanation is a “reasonable explanation”, the arbitrators at FSCO determined whether the explanation is credible or worthy of belief prior to assessing whether it is reasonable. I cannot presume to know what was in the minds of the FSCO arbitrators in determining that an explanation is “worthy of belief”. My decision rests on whether the applicant’s explanation is reasonable or unreasonable given the circumstances.

22I find helpful the three tests of reasonableness for an explanation proposed by FSCO Arbitrator Leitch in the Horvath case.²

a. Balancing of prejudice to the insurer

There is no dispute that one of the main objectives of insurance law is consumer protection³. I agree with Arbitrator Leitch when he suggests in the Najafi case, submitted by the applicant, that the goal of consumer protection is better serviced when an insurer who has been notified of an accident promptly informs the insured person of the section 32(1) time limit, of the potential consequence of non-compliance and of the insured person's right to provide a reasonable explanation for non-compliance.⁴

There is no evidence before me that RBC ever advised the applicant that any benefits were in jeopardy because of missed time limitations. In fact, RBC sent a complete package for benefits to the applicant almost immediately after receiving the application and began active adjusting of the claim.

I find that there has been no prejudice to RBC because of the late filing of the application.

b. Hardship to the applicant

As I will discuss in detail below, RBC has agreed in their submissions for this hearing, to fund in principle the treatment plans that it initially denied based on an incorrect MIG determination. Disentitling the applicant to all benefits at this juncture would, I believe, pose an immense hardship on the applicant.

c. Whether it is equitable to relieve against the consequences of the failure to comply with the time limit

I find that the applicant’s explanation for the delay in submitting his application for benefits is reasonable given all of the circumstances. Because of my findings on the first two parts of this test, I find that it would be inequitable to prevent the applicant from a fair hearing of the issues in dispute.

23The hearing will proceed on the remaining issues in dispute.

Issue 1 - Income Replacement Benefits - Entitlement

24Is the applicant entitled to income replacement benefits in the amount of $400 per week, for the period of August 7, 2014 to date and ongoing?

25To date, the applicant has not received any income replacement benefits. The applicant bears the burden of proving on a balance of probabilities that he is entitled to this benefit.

26RBC’s position for not paying income replacement benefits is twofold. First, it submits that subject to section 36(3), as the applicant did not submit a completed disability certificate until March 27, 2015, he is not entitled to income replacement benefits for any period prior to the submission. Second, the applicant does not meet either the substantial or complete inability test.

27The applicant’s position is that he has submitted a reasonable explanation for the delay in submitting his claim to RBC and therefore RBC is responsible for the payment of income replacement benefits effective August 7, 2015. The reasonable explanation for delay that the applicant submitted is:

• his son advised RBC of the accident shortly after it occurred

• he was employed prior to the accident

• he did not quit his employment prior to the accident

• he suffered injuries in the accident

28I accepted the applicant’s explanation for delay in submitting the initial application for accident benefits, and found his explanation reasonable enough so that he would not be disentitled completely from applying for benefits. However, the applicant did not provide any submissions to explain why it took approximately five months from the denial of EI benefits to the application for accident benefits to RBC.

29I therefore find that the applicant is not entitled to income replacement benefits before the submission of the disability certificate on March 27, 2015.

Issue 1 - Income Replacement Benefits – Eligibility

30The tests for eligibility for an income replacement benefit are set out in sections 5 and 6 of the Schedule. In this case it would mean that the applicant is eligible to receive an income replacement benefit if, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a machine operator within 104 weeks after the accident.

31He is eligible to receive an income replacement benefit after the first 104 weeks of disability if he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

32Before determining whether the applicant suffers a substantial or complete inability, I must first address what were the essential tasks of the applicant’s employment.

33RBC arranged for a job site analysis and a functional abilities evaluation for the applicant that were both carried out by Ms. Zinnia Lee, physiotherapist, on May 19, 2015.

34The applicant did not submit evidence regarding the applicant’s tasks, and the applicant testified at the hearing that he was a machine operator and he had to lift 10 – 20 kg parts with his hands. He stated that it was very heavy work.

35The Job Site Analysis report lists the physical demands that are the essential tasks of the applicant’s pre-accident employment: constant standing and walking; frequent stooping; frequent neck movement; frequent torso rotation; frequent forward reaching; frequent below waist reaching; frequent handling; occasional fingering (fine dexterity work); frequent lifting; frequent carrying; and frequent pushing and pulling.

36In the Job Site Analysis, Ms. Lee reports that the applicant’s occupation was rated within the medium strength demands. Her analysis indicates that for the frequency of the performance of the tasks, the applicant would be required to lift 11 to 25 pounds each time the task was performed.

37In the Functional Abilities Evaluation, Ms. Lee reports that since the applicant terminated most of the tolerance tests due to his pain symptoms, there is an insufficient amount of clinical information to comment on his current level of functional tolerance.

38She goes on to state that the applicant reported pain in the cervical spine and shoulders and was only able to lift 10 pounds, an amount that she categorizes in the sedentary strength range.

39As the applicant has submitted that he is eligible to receive benefits both before and after the 104 week period (usually referred to as the “Substantial Inability Test” and the “Complete Inability Test” respectively), the analysis for eligibility requires two separate tests. As the tests are different, I will address eligibility in two sections.

PART 1 - Substantial Inability Test (within 104 weeks)

40The test for eligibility to receive an income replacement benefit within 104 weeks of the accident is set out in section 5(1) of the Schedule, which states:

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 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.

41Although RBC raised some issues with regard to the applicant’s employment at the time of the accident, I agree with the applicant’s position. His employment records from his employer indicate he was employed for the four weeks prior to the accident and at least for the 26 weeks during the 52 weeks prior to the accident. Whether or not it is found that he qualifies to receive an income replacement benefit, it is clear that he meets the requirements to apply for the benefit.

42The applicant did not specifically address whether or not he had a substantial inability to perform the essential tasks of his job. The applicant states that he suffered several physical impairments as a result of the accident. The disability certificate lists these injuries as:

• Fracture of unspecified part of phalanx, closed left 5th hand

• Radiculopathy, cervical region, possible

• Other Sprain Strain of Cervical Spine

• Dislocation, Sprain and strain of joints and ligaments of thorax

• Dislocation, Sprain and strain of joints and ligaments of lumbar spine and pelvis

• Sprain and strain of other and unspecified parts of shoulder girdle, right

• Dislocation, Sprain and strain of joints and ligaments of knee

• Headache

• Disorders of initiating and maintaining sleep (insomnia)

• Stress, not anywhere classified.

43After several visits to his family doctor, where he noted increased pain in his shoulder, he was sent for an ultrasound approximately two months after the accident. The ultrasound report indicated the following physical issues:

a complete tear of a tendon in his right shoulder; a partial tear in his left shoulder and a full tear in his left bicep.

44In support of the injuries suffered, the applicant submitted an orthopaedic assessment from Dr. Manoj Bhargava, dated August 11, 2016, along with the clinical notes and records of the family doctor, Dr. Harleen Singh. In addition, with the aid of an interpreter, the applicant gave oral evidence at the hearing.

45RBC relied on the orthopaedic assessments and testimony of orthopaedic surgeon, Dr. Oleg Safir. Dr. Safir testified that he prepared an in-person assessment on June 2, 2015, a paper review for an addendum report dated August 31, 2015, and another paper review in February 2016. I did not note a report dated February 2016, but RBC submitted another in person assessment dated May 18, 2016. Dr. Safir testified that any additional information received did not alter his original opinion that any submitted treatment plans were unreasonable and unnecessary and that the applicant could substantially complete the essential tasks of his pre-accident employment.⁵

46The physical areas that are the subject of the applicant’s physical injuries are the:

a. neck

b. shoulders

c. back

d. knees

e. finger

47The next analysis is based on the individual areas of alleged impairment and its impact on job related activities. The onus is on the applicant to prove that the injury was caused by the accident and that it has resulted in an impairment that causes a substantial inability to perform an essential task of the applicant’s pre-accident employment tasks.

a. Is the complaint regarding the neck and cervical spine a result of the accident and does it cause a substantial inability to perform an essential task of the applicant’s pre-accident employment?

48Dr. Bhargava states that since the motor vehicle accident the applicant has complained of ongoing neck pain that began immediately following the accident. He notes that there has been some improvement since the accident but the tests he performed in his assessment show tenderness over the C5 and C6 area, a 75% loss of extension, 25% loss of rotation and lateral tilting to the right. He further states that pain would worsen with lifting, carrying, overhead activity, movement of the neck and keeping the head stationary for prolonged periods. He also states that the pain would be relieved with changing positions, with the use of medications and physiotherapy treatments. He does not note any neurological issues.

49Dr. Bhargava states that the applicant is unable to perform tasks that require sustained head posture for prolonged periods and turning, flexing or extending the neck repetitively.

50Dr. Safir, in his May 18, 2016 assessment, notes that the applicant’s cervical spine flexion, extension, lateral tilt and lateral rotation were tested. He reports the percentages but does not provide an opinion as to the meaning and relevancy of these percentages. He also reports that palpation of the neck revealed tenderness of the paracervical muscles bilaterally. Dr. Safir does not provide any test score percentages in any of his other reports. He states in his June 2015 assessment that he does note cervical range of motion issues but believes it to be age appropriate.

51With regard to a cervical impairment, I gave more weight to Dr. Bhargava’s report than to Dr. Safir’s reports and testimony. Dr. Safir testified that both he and Dr. Bhargava found reduced range of motion and suggested that there could be a difference in their findings due to the time lag between the two examinations. It is clear to me that Dr. Safir did not recall that he had assessed the applicant only three months’ prior to Dr. Bhargava.

52As noted above, the Job Site Analysis identifies that as part of his employment tasks the applicant would have to move his neck on a frequent basis. This is considered an essential task of the applicant’s pre-accident employment.

53I therefore find that the applicant suffered an impairment in the neck/cervical spine as a result of the accident that has caused a substantial inability to perform an essential task of his pre-accident employment.

b. Is the complaint regarding the shoulders a result of the accident and does it cause a substantial inability to perform an essential task of the applicant’s pre-accident employment?

54The applicant complained to Dr. Singh, the family doctor, of shoulder pain since the time of the accident. At an appointment almost immediately after the accident, on August 5, 2014, Dr. Singh notes that applicant has “severe pain left shoulder post MVA”.

55If there were pre-existing issues with his shoulders, there are no notes in the family doctor’s report that indicate so. This would certainly suggest that if there were any issues, the applicant was asymptomatic.

56On October 6, 2015, an ultrasound was performed on both shoulders. The report indicates that in the right shoulder there was a complete tear of the supraspinatus tendon with retraction. Also noted were tendon impingement and tenosynovitis. The ultrasound of the left shoulder revealed a partial articular type tear in the supraspinatus tendon; tendinopathy and a full thickness tear of the biceps tendon.

57On October 30, 2015, after the ultrasound, the applicant had a consultation with Dr. Edward Landsang, an orthopaedic surgeon. The report states that the applicant was seen regarding right shoulder pain, which he has had for approximately one year, since an automobile accident. He noted that he particularly reported pain with overhead activity and rotation. Although he was offered a surgical option for repair of the rotator cuff tear, the applicant chose a more conservative approach with physiotherapy and tramadol for pain.

58Dr. Singh’s medical note of December 5, 2016 states that the applicant continues to have back pain and bilateral shoulder pain (right more than left) since the accident on July 2014.

59Dr. Safir states in his May 16, 2016 report that the shoulder revealed mild to moderate limitations which appear “within all reasonable medical certainty” to be consistent with pre-existing degenerative changes.

60While Dr. Bhargava ties many of the injuries with to the accident, he is silent on whether or not the shoulder injuries are a result of the accident. He refers only to the applicant experiencing pain in the right shoulder since the accident, consistent with a rotator cuff tear.

61Dr. Bhargava was initially called as a witness at the hearing, but the applicant advised that he would not be attending. Although I do not dispute the pain that the applicant suffers in his shoulders, there is insufficient evidence before me that the shoulder issues are a result of the accident. It was likely unavoidable that Dr. Bhargava could not attend, however, I believe it would have been helpful to have him explain his results.

62As Dr. Safir pointed out at the hearing, that if only one shoulder had suffered a tear, it was his opinion that it would likely have been caused by the accident. Since there are tears in both shoulders he believes it is symbolic of degenerative wear and tear on the shoulders and pre-existed the accident.

63On this issue, I find RBCs argument more compelling and therefore find that the applicant did not suffer a bilateral impairment in the shoulders as a result of the accident that has caused a substantial inability to perform an essential task of his pre-accident employment.

c. Is the complaint regarding low back pain a result of the accident and does it cause a substantial inability to perform an essential task of the applicant’s pre-accident employment?

64Dr. Bhargava notes that the applicant began experiencing low back pain since the accident. The applicant also reported to Dr. Bhargava that the pain is relieved with changing positions, with the use of his medications and with his physiotherapy treatments.

65Dr. Bhargava noted some tenderness over L5 and paraspinal muscles, but there was no radiation of pain and no associated paresthesia. He noted that there had been about a 20% improvement since the accident and there was a full range of motion. He also noted that lower lumbar scoliosis had been revealed in the x-rays but does not comment on whether this is the cause of the pain or if it is related in any way to the accident.

66In his examination of the applicant, Dr. Safir notes no swelling, asymmetry or deformity of the lumbar spine and no evidence of spinal malalignment. Clearly he has not received and/or reviewed the lumbar x-rays showing scoliosis. He again gives the impression that his reviews and assessments are somewhat mechanical and pro forma.

67The applicant’s subjective account to Dr. Safir in the May 16, 2016 report differs somewhat from his account to Dr. Bhargava in the August 11, 2016 report. To Dr. Safir he indicates he has numbness in his legs and rates his pain as 7/10. To Dr. Bhargava he indicates that there is no numbness and his pain level was at 5/10.

68The applicant’s scoliosis may or may not be a factor that impacts on his lower back issues, but Dr. Safir neglected to mention the condition at all. I found that in general, Dr. Bhargava’s assessment was more detailed than Dr. Safir’s, and I gave more weight to it.

69Dr. Bhargava noted that the applicant had been given home exercises, and felt much better when he performed them. He noted also that although there was some tenderness in the lumbar area, there was full range of motion and a normal neurologic exam. I therefore do not find that applicant’s substantially inability to perform an essential task of his pre-accident employment is due to low back pain.

d. Is the complaint regarding the knees a result of the accident and does it cause a substantial inability to perform an essential task of the applicant’s pre-accident employment?

70On April 27, 2015, weight bearing x-rays of both the applicant’s knees revealed moderate to severe osteoarthritis. At the March 31, 2015 consultation, Dr. Lansang stated that the knee pain was mechanical in nature and that the applicant suffered from tricompartmental arthritis. Dr. Lansang offered the applicant the option of knee replacement surgery or a cortisone injection in the left knee. The applicant was reported as saying that he feels the function is not compromised and preferred a more conservative approach. He received a cortisone injection in the left knee.

71Dr. Safir also noted that the range of motion was limited in the applicant’s knees but opines that “within all reasonable medical certainty appears to be consistent with pre-existing degenerative changes.”

72In a note written on December 5, 2016, Dr. Singh writes that the applicant continues to have back pain and bilateral shoulder pain (right more than left) since accident. He lists the medical condition regarding the applicant’s knees as “osteoarthritis of both knees”.

73Both RBC and the applicant have supporting medical opinions concurring that the pain the applicant is suffering in his knees is from pre-existing osteoarthritis. Therefore I cannot find the accident was the cause of this injury and the analysis regarding ability to perform employment tasks is unnecessary on this issue.

e. Is the complaint regarding the left small finger a result of the accident and does it cause a substantial inability to perform essential tasks of the applicant’s pre-accident employment?

74The medical reports and diagnostics all confirm that the applicant sustained a fracture of the left little finger in the accident. The applicant is right hand dominant. One consultation on September 18, 2014 speaks of two fractures – a displaced proximal phalanx radial condylar avulsion fracture and a 3rd distal phalanx transverse fracture – non-displaced.

75Dr. Safir completely missed the broken finger in his initial assessment of June 2, 2015. In fairness, he did not have the complete records from William Osler Hospital, which included the diagnostic x-rays. However, the applicant told Dr. Safir that he had broken his finger and was in a cast for several weeks. Dr. Safir chose not to include this in the list of injuries suffered by the applicant and instead wrote that the applicant had suffered a contusion to the left hand.

76A diagnosis of a fracture would have removed the applicant from the limitations for benefits under MIG. Dr. Safir’s June 2015 assessment was instead filled with references to minor injuries and treatment plans that were unreasonable and unnecessary because the treatment provided under the Guideline was sufficient for these minor injuries. RBC adjusted their file accordingly.

77In fairness, with the addition of more diagnostic information, Dr. Safir recanted his position on the MIG because of the fracture, but maintained his other opinions in their entirety. This means that he did not revise his opinion retroactively as to whether or not the applicant was ever eligible to receive an income replacement benefit, even for a short while.

78There is also no evidence before me that RBC advised the applicant that he was no longer considered to be within the framework of the MIG and never should have been. In fact, the applicant spent a page and a half of their submissions for the hearing outlining why the applicant should be considered outside of the Guideline.

79At the May 16, 2016 assessment, Dr. Safir notes no tenderness on palpation of the applicant’s hands or writs. He noted that flexion was decreased in two joints of the fifth left finger – otherwise there was full movement. Considering the impairment in question is of the finger, it is an important finding that supports the applicant’s position. Dr. Safir also stated that his examination revealed no evidence of deformity, yet the September 18, 2015 x-ray of the applicant’s finger indicates fracture fragments and deformity of the 5th metacarpal.

80In his latest report of May 2016, Dr. Safir added the fractured finger to his list of injuries sustained by the applicant. However, by the end of this report, when asked what type of injury/impairment was sustained by the applicant, he again omits the fracture and repeats “left hand contusion”. In my opinion this is indicative of a “cut and paste” from his previous report(s) and not a thorough review of the documents or a detailed assessment.

81At the time of the initial assessment in June, Dr. Safir advises that he had no diagnostic imaging reports available. However, the applicant advised him that x-rays indicated a broken finger and that he had been in a cast for three weeks. Dr. Safir even commented on the healing time of the fracture “reportedly sustained”, but did not recognize any of this as a serious determination to draw to the insurer’s attention that the applicant might not be classified as being in the MIG.

82Both Dr. Safir and Dr. Bhargava note that the applicant has issues in the movement of his little finger. Ms. Lee in her Job Site Analysis noted that the applicant would be required to occasionally do fine dexterity work and frequent handling in his employment as a machine operator. Dr. Bhargava particularly notes that impairment of the left small finger with persistence of decreased range of motion will affect the applicant’s ability to lift, grip, grasp or perform fine motor skills with the left hand.

83As noted above, the Job Site Analysis identifies that handling performing fine dexterous work are essential tasks of the applicant’s employment.

84I therefore find that the applicant suffered impairment in the finger of his left hand as a result of the accident that has caused him a substantial inability to perform essential tasks of his pre-accident employment.

85For all of the reasons above, I find that the neck injury and fractured finger were clearly as a result of the accident and equally clearly create a substantial inability for the applicant to carry out the essential tasks of his pre-accident employment.

86The reports I have relied on are dated close to the 104 week mark. I therefore find their information most applicable to the substantial inability test and find that the applicant is therefore entitled to income replacement benefits in the amount of $400.00 per week from March 27, 2015 to July 30, 2016 – the end of the first 104 weeks.

87I also find that this benefit is overdue and therefore interest has accrued subject to the terms set out in section 51 of the Schedule.

PART 2 - Complete Inability Test (post 104 weeks)

88The applicant again bears the burden of proving on a balance of probabilities he is entitled to a post-104 week income replacement benefit in the amount of $400 per week from July 31, 2016 and ongoing.

89The test for entitlement for a post-104 week income replacement benefit is set out in section 6(2)(b) of the Schedule, which states: The insurer is not required to pay an income replacement benefit, after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

90The applicant did not submit a lot of detailed medical information on his injuries and limitations after the post-104 period began. I have Dr. Bhargava’s assessment of August 2016, which I have dealt with at length above. Additionally, I have a clinical note from Dr. Singh dated December 5, 2016 noting all of the applicant’s current medical conditions:

• Post-MVA back pain and bilateral shoulder pain/ Bilateral shoulder tendon tears

• Post-fracture limitation of flexion of little finger.

• Osteoarthritis of both knees.

• BPH

• Bilateral hearing loss (Chronic)

91I found that the back pain and shoulder pain did not meet the substantial inability test, as there was an insufficient co-relation with the cause of these issues and the accident, and in the case of the applicant’s back, that the condition had improved and was manageable. The knee condition also did not meet the substantial inability test as all tests and assessments agreed that the underlying cause of the knee pain was osteoarthritis, which was not caused by the accident. BPH and hearing loss are not relevant to the issues in this case and are not alleged to have been caused by the accident. In his note of December 5, 2016, Dr. Singh does not list neck injuries at all as a current medical condition.

92The remaining medical condition is the post-fracture limitation on flexion of the little finger.

93No evidence has been submitted by the applicant that the finger limitation renders him completely unable to engage in any employment for which he may be suited by education, training or experience.

94It is not known if his former employer would have had modified duties for him or provided a job that he could do with the limitation on his finger. No evidence was submitted in support of that premise and in fact, the applicant testified that he never went back to his employer. The applicant also testified that he did not know if anyone advised his employer that he was in an accident, but he is “sure” the employer knew.

95Dr. Bhargava suggested in his assessment that the applicant undergo a chronic pain assessment. No evidence was submitted that this assessment had been obtained. I would have found it useful in determining the applicant`s abilities post 104 weeks.

96There is also an onus on the applicant to mitigate his situation. He testified that he has only submitted one application for work, which was turned down. Again, there is no evidence of the kind of work he applied for or what kind of employment he could do.

97I understand that the applicant had hoped to work for ten years so that he could obtain a pension under CPP. I also understand that the lack of income replacement benefits has placed the applicant in economic hardship. However, the legislation is based on strict guidelines regarding post-104 weeks benefits, and on the basis of all the evidence submitted, I cannot find that the applicant has met the test for complete inability.

Issue 2 - Minor Injury Guideline (MIG)

98In the Order released after the case conference, this issue was designated as going forward to this hearing. The applicant devoted over a page and a half of his submissions in support of his reasons for being taken out of the MIG.

99In its submissions, RBC confirmed⁶ that the applicant has been taken out of the MIG as per the addendum report of Dr. Safir dated August 31, 2015. Additionally, RBC recognizes that the fracture that the applicant suffered is not considered a “minor” injury.

100Because the applicant is no longer subject to the MIG, RBC states in its submissions that it has agreed to pay for medical benefits that it initially denied for that reason.

101It is unfortunate that there is no evidence before me that the removal of the applicant from MIG was communicated to him. In fact, in a letter dated September 11, 2015, RBC wrote to the applicant maintaining its denial of an OCF-18 based on Dr. Safir’s addendum report of August 31, 2015. RBC is silent in the letter about removal from the MIG. In its submissions for this hearing, RBC reverses its position over two years later and agrees to pay the amount of the treatment plans in dispute.

Issue 3 - Medical and Rehabilitation Benefits

102As indicated previously in my decision, RBC and its assessors and adjusters somehow missed the diagnosis of a fracture of the applicant’s small left finger. RBC continued to adjust the file as though the applicant was still under the Guideline. It is only in their submissions for this hearing that RBC has resiled from its initial adjustment of this application.

103I have had great difficulty in determining what medical rehabilitation benefits are in dispute. Those listed in the application are not those proposed by the respondent and neither completely match the copies of the OCF-18s included with the applicant’s submissions.

104Therefore, I have listed below the disputes that were addressed by both parties along with the information obtained directly from the OCF-18s in the applicant’s submissions.

i. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, TENS electrodes & completion of OCF-18 in the amount of $2,609.72 plus tax for a total amount of $2,659.01 in an OCF-18 dated March 27, 2015?

ii. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, & completion of OCF-18 in the amount of $1,560.86 plus tax for a total amount of $1,591.12, in an OCF-18 dated April 5, 2016?

105Although these two OCF-18s were included with the applicant’s submissions, neither party referenced them as an issue in dispute nor were they included in the original application to the Tribunal. Since these are not disputed issues, they are not properly before the Tribunal and there cannot be an order regarding them.

iii. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, & completion of OCF-18 in the amount of $2,354.10 plus tax for a total amount of $2,399.46 in an OCF-18 dated June 4, 2015?

106This issue was already partially approved for $1,722.60. The actual outstanding amount is $676.86. RBC states that the partial approval was based on the applicant being in the MIG and now agrees to pay the remaining amount upon receipt of the invoice.

iv. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy, & completion of OCF-18 in the amount of $2,070.29 plus tax for a total amount of $2,108.11 in an OCF-18 dated August 11, 2015?

107RBC states that it initially denied this treatment plan on the basis that the applicant was subject to MIG. RBC now agrees to pay the remaining amount upon receipt of the invoice.

v. Is the applicant entitled to a medical benefit recommended by Complete Rehab Centre for physiotherapy, massage therapy and completion of OCF-18 – $1,786.48 plus tax for a total of $1,816.74 in an OCF-18 dated November 17, 2015?

108RBC states that it initially denied this treatment plan on the basis that the applicant was subject to the MIG. RBC now agrees to pay the remaining amount upon receipt of the invoice.

vi. Is the applicant entitled to a cost of orthopaedic assessment recommended by Dr. Manoj Bhargava of $2,000.00, plus cost of completion, plus tax for a total amount of $$2,460.00 in an OCF-18 dated March 22, 2016?

109RBC lists this as an assessment in the amount of $2,750.00, dated June 29, 2016. I could not find that OCF-18 in the documentation provided. The OCF-18 dated March 22, 2016 is the one that is most similar. RBC has agreed to pay up to $2,200 as per the provisions of the SABS upon receipt of the invoice.

110It is my decision that pursuant to Superintendent’s Guideline No. 03/14⁷, RBC is also responsible for the HST accruing to this assessment.

vii. Is the applicant entitled to a $200.00 completion fee for an OCF-18 dated March 22, 2016?

111The OCF-18 dated March 22, 2016 has already incorporated a completion fee of $200.00, which RBC has agreed to pay, so I am denying this “stand alone” request.

viii. Is the applicant entitled to a $200.00 completion fee for an OCF-18 dated April 5, 2016?

112Since the April 5, 2016 OCF-18 is not in dispute (see issue ii above) I cannot order a completion fee.

113In its submissions, RBC references a psychological assessment allegedly in dispute. I found no OCF-18 in the evidence referring to this assessment.

114I also order that the applicant is entitled to interest on the unpaid incurred expenses for the medical benefits in accordance with section 51 of the Schedule.

CONCLUSION:

115In the interest of procedural fairness, I find that the applicant had a reasonable explanation for not applying for accident benefits immediately after the accident and should not be disentitled to applying for benefits.

116However, there was no evidence before me as to what happened in the months after the Service Canada denial and the submission of the application – a period of five months. I therefore followed the legislation under section 36(3) of the Schedule, in determining that the applicant was not entitled to an income replacement benefit for any period before the completed disability certificate was submitted. The applicant shall be paid income replacement benefits from March 27, 2015 to July 30, 2016, along with all accrued interest, pursuant to section 51 of the Schedule.

117In my view, there is sufficient evidence to show that the applicant suffered a substantial inability to perform his pre-accident tasks of employment. However, in trying to determine the applicant’s eligibility for income replacement benefits post 104 weeks, the medical evidence is not current.

118Although Dr. Singh notes in December 2016 that the applicant still has back and shoulder pain, the last ultrasound evidence is from 2015. Dr. Bhargava’s assessment was done in August 2016 but there is no evidence to support that the chronic pain follow up he recommended was ever carried out. There is also no evidence of the applicant’s ability to obtain other employment that he was suited for by reason of education, training or experience.

119For these reasons, it is my decision that he does not meet the complete inability test for income replacement benefits after the post104 weeks’ period.

120The issue of the applicant being within the MIG should have been resolved when RBC made its decision in August 2015. Unfortunately, it was not communicated to the applicant and the application continued to be adjusted as though the applicant was still within the parameters of the Guideline.

121RBC has now agreed to pay the listed treatment plans and assessments upon being invoiced. I have ordered that interest has accrued and shall be paid by RBC under the terms of section 51 of the Schedule.

ORDER:

122Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that:

123RBC shall pay the following:

a. An income replacement benefit in the amount of $400 to the applicant from March 27, 2015 to July 30, 2016.

b. The following medical benefits listed as approved in the body of my decision.

i. $676.86 ($2,399.46 – less $1,722.60 already approved) OCF-18 dated June 4, 2015

ii. $1,816.74 – OCF-18 dated November 17, 2015

iii. $2,460.00 + HST – orthopaedic assessment dated March 22, 2016

c. Interest on the above-noted benefits, pursuant to section 51 of the Schedule.

124RBC shall not pay a post 104 weeks’ income replacement benefit to the applicant from July 30, 2016 and ongoing.

125If the parties cannot determine the amount of interest, where ordered, either party may make a motion to the Tribunal under Rule 15 for a decision.

Footnotes

1. 1As defined in section 40 of the Schedule
2. 2Horvath and Allstate, FSCO A2-000482 at page 4.
3. 3Smith v. Co-operators General Insurance Co., [2002] 2 S.C.R. 129, 2002 SCC 30, para 11.
4. 4Najafi Far and Echelon, FSCO A03-001122 at page 14.
5. 5With the exception of confirming a non-MIG injury in August 31, 2015, which removed the applicant from the MIG. Dr. Safir also stated in that report that because of the fracture to the applicant’s finger, the injuries sustained are not a minor injury for which the MIG applies.
6. 6Respondent Written Submissions – para 24.
7. 7If the HST is deemed by the Canada Revenue Agency to be applicable to any of the services of fees listed in this Guideline, then the HST is payable by the insurer in addition to the fees as set out in this Guideline.