Tribunal File Number: 17-006956/AABS
Case Name: 17-006956 v Guarantee Company of North America
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
Guarantee Company of North America
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude
APPEARANCES:
For the Applicant: Georgiana Masgras, counsel
For the Respondent: Kerry Figliomeni, counsel
HEARD: Written Hearing: May 7, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in a motor vehicle accident on August 15, 2011 when he was hit from behind by his wife as they both drove into the parking lot of a Tim Horton’s store. He received benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent but is now in a dispute with the respondent over his entitlement to a non-earner benefit. He also seeks funding for assessments to determine if he is catastrophically impaired as that term is defined in the Schedule.
2The respondent raises two arguments with respect to the applicant’s entitlement to a non-earner benefit. Firstly, the respondent points out that the applicant was denied that benefit many years ago. He arbitrated the denial at the Financial Services Commission of Ontario (“FSCO”) and took no steps to prevent FSCO from closing its file when the arbitration was apparently settled but the settlement fell through. Secondly, the respondent argues that the applicant is well beyond the two year limitation period set out in the Schedule for appealing to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3With respect to the catastrophic impairment assessments, the respondent argues that it is only responsible for funding such assessments if they are reasonable and necessary. In the respondent’s view, this means there must be some objective basis upon which to conclude that the applicant’s impairments may meet the definition of catastrophic impairment, and that, in this case, there is none.
THE ISSUES
4The issues before me are:
Is the applicant statute-barred from proceeding with his claim for a non-earner benefit (the “preliminary issue”)?
Is the applicant entitled to the cost of the catastrophic assessments outlined in a treatment plan dated September 20, 2017, submitted by Dr. Joseph Paton, in the amount of $11,752 (the “substantive issue”)?
Is the applicant entitled to interest on any overdue payments?
RESULT
5Having considered the issues put to me, I find for the respondent on both the preliminary issue and the substantive issue. Since there are no overdue payments, no interest is owing.
PRELIMINARY ISSUE
6The preliminary issue engages the two year limitation period set out in the Schedule and a curative provision set out in s. 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”)1. There is no doubt that the applicant appealed the denial of the non-earner benefit to this Tribunal after the lapse of the limitation period. In fact, when the two year period expired, on June 26, 2015, the Tribunal did not have jurisdiction to deal with appeals under the Schedule. At that time, appeals under the Schedule started with mandatory mediation at FSCO and then went to either arbitration at FSCO or to the Superior Court.
7The applicant sought mandatory mediation at FSCO in and around April 23, 2013. The respondent had not yet denied the applicant’s entitlement to a non-earner benefit. It issued its denial letter on June 26, 2013 and the parties consented to the issue being added to the ongoing mediation. The mediator issued a report on July 4, 2013 indicating that the parties had been unable to settle the issue. The applicant applied for arbitration at FSCO on July 18, 2015.2
8FSCO scheduled several arbitration hearings. Each hearing was adjourned. There was a settlement discussion on October 19, 2017 in advance of an arbitration scheduled to begin on October 23, 2017 that ostensibly reached a global settlement on the file. FSCO informed the parties on October 31, 2017 that, in light of the settlement, it would close its file within 20 days. Thus, the parties had until November 20, 2017 to advise FSCO that the settlement had fallen through and ask it not to close its file.
9Despite the fact that the question of entitlement to a non-earner benefit was being adjudicated at FSCO, on October 13, 2017, 10 days before the FSCO arbitration was due to start, the applicant filed an appeal with the Tribunal seeking, among other things, entitlement to a non-earner benefit. Given that the date of the respondent’s denial of the applicant’s right to a non-earner benefit was dated June 26, 2013, the two year limitation period had expired on June 26, 2015. The application was made approximately 27½ months after the expiry of the two year limitation period. The global settlement included a provision that the applicant withdraw his appeal to this Tribunal.
10From October 19, 2017 through December 1, 2017, counsel for the respondent dealt with the applicant’s counsel to exchange settlement documents and look for executed copies to be sent back. Counsel for the applicant finally, definitively advised respondent’s counsel that their client would not complete the settlement by letter dated December 1, 2017.
11In an abundance of caution, the respondent had filed a Response to the applicant’s appeal to this Tribunal in a timely manner. The Response cited the settlement, the fact that the issue was currently before FSCO and alleged that seeking the same relief before this Tribunal as the applicant was seeking before FSCO was bad faith.
ANALYSIS
12I do not read the applicant’s submissions as disputing that his application to the Tribunal was filed beyond the two year limitation period set out in s. 56 of the Schedule. The major focus of his submissions is the curative provision in s. 7 of the LAT Act. Section 7 states:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
a. extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
b. give the directions that it considers proper as a result of extending the time.
13According to s. 7, then, I may extend the two year limitation period if I find there are reasonable grounds for applying for the extension. In his submissions, the applicant has not advanced any grounds other than the proposition that, since I have a discretion to extend the limitation period and he has allowed his FSCO appeal to lapse after prosecuting it for 3 years, I should exercise that discretion in his favour.
14The applicant relies on a reconsideration decision by the Executive Chair of the Safety, Licensing Appeals and Standards Tribunals of Ontario (“SLASTO”) from a decision of this Tribunal: A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (“North Blenheim”). In that case, the Executive Chair reconsidered two related decisions of this Tribunal applying the two year limitation period. Neither of the applicants in the two cases raised the application of s. 7 of the LAT Act before the adjudicator at first instance and neither sought a reconsideration of the decision, although the applicants appealed to the Divisional Court on other grounds. In exercising her reconsideration power on her own motion, the Executive Chair has established that it is my obligation to anticipate what arguments the parties could have made and raise them on my own motion.
15The Executive Chair also took a similar approach in Aviva Canada Inc. v. R.R., 2017 CanLII 81569 (ON LAT) (“Aviva”) where she stated:
Normally, a tribunal is not required to raise issues that it perceives with a party’s evidence before rendering a decision. It is the parties’ responsibility to lead the best evidence in support of their cases. However, in this case, there was no reason to consider Aviva’s compliance with s. 52(2)(a) to be a live issue. In the unique circumstances of this case, therefore, fairness required that Aviva be put on notice of the issue before the Tribunal dismissed the application for that reason.
16In the Aviva case, the insurance company was seeking repayment of income replacement benefits. To succeed, it had to show that it had sent an appropriately worded demand letter and, because more than 12 months had elapsed from the date payments began, that the insured had made wilful misrepresentations to the insurer to be paid the benefit (Schedule s. 52). The insured, R.R., did not defend the action.
17Aviva had made reference to the demand letter in its notice of appeal to the Tribunal and in its case conference material and included it in its case conference summary. The case conference order required it to submit all relevant documents for the hearing afresh as the hearing adjudicator would not refer to documents filed with the case conference summary. It failed to submit the demand letter as part of its hearing materials. The adjudicator at first instance dismissed Aviva’s application because it had failed to prove its case by showing proper demand had been made. On reconsideration, the Executive Chair held that to do so without giving Aviva the chance to cure the defect was a denial of natural justice.
18In applying these two decisions to the case at hand, I understand that they require me to take a flexible approach rather than a formalistic one to evidence and submissions and to give the parties the opportunity to fill gaps in their materials. As stated above, the North Blenheim decision sets a four part test to be considered in applying s. 7 of the LAT Act. In applying this test, I will take the applicant’s submissions at their highest and make due allowance for gaps that I can readily fill myself.
19The four part test set out in North Blenheim is:
The existence of a bona fide intention to appeal within the appeal period;
The length of the delay;
Prejudice to the other party; and,
The merits of the appeal.
20The four part test was endorsed by the Divisional Court in Manuel v. Registrar (“Manuel”),3 an appeal from a decision of this Tribunal. In Manuel, the appellant missed the 15 day period to appeal a notice from the Registrar under the Motor Vehicle Dealers Act, 20024 by what the court considered to be a reasonable period. Nonetheless, in upholding the Tribunal’s decision not to apply s. 7 of the LAT Act in the appellant’s favour, the court held that, despite the short delay, no one factor was determinative and that the decision was reasonable.
21In Manuel, the court held that the purpose of weighing the four factors in the test is to determine the justice of the case. Thus, while no one factor is determinative, it is necessary to weigh all of the factors to achieve a just result.
22Notwithstanding that the applicant cited the North Blenheim case in his submissions, he does not refer to the four part test. The submission is limited to reliance on the arm of the test relating to a good faith intention to appeal within the time period and the apparent irrevocability of not notifying FSCO that the settlement had fallen through, as follows:
We respectfully submit that [the applicant] started an arbitration proceeding within two years of the insurer's refusal to pay the amount claimed. In addition, there are reasonable grounds to grant an extension given that [the applicant] revoked his settlement when FSCO wan [sic] no longer handling Arbitrations and he filed in good faith an Application by an Injured Person on October 13, 2017.
23The applicant’s submission misstates the facts. On October 13, 2017, when he filed his application with the Tribunal, FSCO was still handling arbitrations and had scheduled his arbitration to be heard 10 days later. The change of jurisdiction on April 1, 2016 from FSCO to this Tribunal can have had no impact on the applicant’s decision to commence a proceeding here.
24In the spirit of the North Blenheim and Aviva cases, I have reviewed the record more fully than the applicant has chosen to do to find support for the applicant’s position. Regardless, having done so, I find the applicant has not persuaded me I should exercise my discretion in his favour.
Bone Fide intention to Appeal
25The first factor I must consider is: did the applicant have a bona fide intention to appeal within the two year limitation period. Clearly, since there was no right of appeal to this Tribunal when the two year period expired in June 2015, the applicant could not have had any intention to appeal to this Tribunal during the appeal period. The applicant argues that the intention to appeal is found in the fact that he was appealing the denial of the benefit to FSCO. What could be more indicative of his ongoing intention to enforce his rights of appeal than the fact that he was appealing?
26I find this argument to be superficially attractive but I do not believe it withstands close scrutiny. I agree that the applicant demonstrated a bona fide intention to assert his rights prior to June 26, 2015 and that he did, in fact, assert those rights. What is more troubling is why he appealed to this Tribunal when his rights were protected by his appeal to FSCO. At the time of his appeal to this Tribunal, he was a few days from a FSCO hearing. There was no justification for commencing this appeal and, as such, it cannot be said that his intention to appeal to this Tribunal was bona fide.
The Length of the Delay
27Unlike the Manuel decision, the delay in this case was lengthy, over two years. Of note, it was also eighteen months after this Tribunal assumed jurisdiction for settling disputes under the Schedule. In my view, the total delay is a major factor in determining the issue. The applicant has provided no explanation for the delay. The obvious explanation before April 1, 2016 is that the Tribunal had no jurisdiction. Even assuming there was some juridical reason for advancing a claim before this Tribunal rather than FSCO, the applicant has provided no explanation why it took eighteen months to seek to appeal, or why the appeal was launched a few days before the FSCO hearing was due to commence.
Prejudice to the Other Party
28The respondent argues that it is prejudiced by having to defend itself before this Tribunal. It sees the applicant’s actions as an attempt to circumvent the FSCO procedure. I agree. The applicant was obliged to seek all of his relief in the FSCO proceeding, and did so. By seeking the same relief from another forum, the applicant runs afoul of the policy against multiplicity of proceedings and forum shopping.
29The respondent has invested significant time and effort in defending itself before FSCO and settled that procedure in good faith. It is prejudicial for it to have to face a duplicate proceeding before another tribunal after the lapse of so many years.
Merits of the Appeal
30The threshold with respect to the merits of the appeal is not high. I am not required to embark on a full blown analysis of all of the evidence. It is sufficient if I find that the applicant has a chance of success. On the material before me, I find that the applicant has no chance of success.
31My conclusion is driven by the fact that the test for entitlement to a non-earner benefit is a stringent one: a complete inability to carry on a normal life (s. 12 of the Schedule). The Court of Appeal has set out the parameters to be considered. At a minimum, the applicant was required to put evidence before me on this motion which showed that the accident brought about major changes between his ability to carry on a normal life before the accident and his ability since the accident. What evidence he did submit is tenuous and completely contradicted by the surveillance evidence of the respondent.
32The best evidence to support entitlement to a non-earner benefit is set out in the report of psychologist, Dr. Judith Pilowsky. In a section entitled “Pre- and Post-Accident Level of Functioning”, Dr. Pilowsky records the applicant’s description of his ability to function both before and after the accident. She notes that he was self-employed before the accident but unable to work after the accident. She notes that he swam and took his extended family to Florida approximately 20 times a year. She notes that he enjoyed socializing. She notes that since the accident he has been unable to do any of these activities. Her report states:
However, since the accident, this man has not been able to recover from his reduced physical as well as psychological functioning and therefore has been unable to continue working. This has left [the applicant] distraught from an emotional and psychological standpoint, particularly as he has encountered dire financial strain that led he [sic] and his wife to be evicted from their home.
Please note that [the applicant] was also highly active outside of the employment realm. He took pleasure in socializing, traveling, swimming with friends, attending church each Sunday, watching movies, and visiting his children and grandchildren who lived amongst Canada.[sic] He recounted that he used to take his Family to Florida nearly 20 times per year, and he and his wife used to travel there together an additional few times. The patient was also highly physically active and involved himself in regular swimming and exercise.
Since the accident, however, all of the aforementioned pastimes have been curtailed in light of the patient's difficulty coping with pain, reduced levels of motivation, as well as low mood and inability to derive joy from these activities.
33The respondent submitted surveillance evidence from 2013 and 2017. In contrast to his statements to Dr. Pilowsky, in 2013, the applicant is shown working without any apparent discomfort over several days, lifting items, fixing a door, drilling over his head and standing on a ladder to complete work. He spends time socializing with his workmate. He is also shown driving to and from places of work, the coffee shop, and the shopping mall. In 2017, he is shown driving both alone and with his wife to do errands, attend treatment and buy coffee. He moves without discomfort and easily enters and exits his car. At one point, he initiates a lengthy conversation with a passerby.
34Without minimizing the statements made to Dr. Pilowsky, it is clear from the surveillance evidence that any impairment the applicant suffered as a result of the accident falls short of a complete inability to carry on a normal life. I find that there is no merit to his claim.
35Having considered all of the above, and applying the North Blenheim factors, I decline to exercise my discretion under s. 7 of the LAT Act to extend the time for filing this appeal.
Catastrophic Impairment Assessment
36The applicant has submitted two almost identical Treatment and Assessment Plans to determine if he is catastrophically impaired. The respondent argues that there is no evidence to suggest that a catastrophic impairment assessment is reasonable and necessary. It argues that despite the lapse of almost seven years since the accident, the applicant has accessed less than $30,000 in medical and rehabilitation benefits out of a maximum currently available sum of $50,000. In the respondent’s view, the lack of need for medical services is indicative of the fact that it is unreasonable to conduct an assessment to determine if the applicant is catastrophically impaired.
37In addressing the issue of the reasonableness and necessity of a catastrophic impairment assessment, I note that the applicant bears the onus, on balance of probabilities, to show entitlement to the assessment. I also note that, by their nature, assessments are speculative. They are conducted to determine if an applicant has a specific condition or meets a specific threshold. There is a likelihood that the assessment will prove negative. Having said that, I accept the respondent’s position that there must be some suggestion that the specified condition exists and that further investigation is reasonable and necessary.
38On the facts before me, I can see no reasonable basis to conduct an assessment to determine if the applicant is catastrophically impaired. The physical injuries identified in the Treatment and Assessment Plans are either minor in nature or degenerative. The psychological impairments identified by Dr. Pilowsky are based on self-reporting that is not supported by the surveillance evidence and, in any event, the impairments fall below the catastrophic impairment level of a marked impairment. I see no objective evidence to suggest the applicant may have a whole person impairment of 55% or greater.
39The applicant relies on a Treatment and Assessment Plan dated September 20, 2017 prepared by a Chiropractor, Dr. Joseph Paton. The Treatment and Assessment Plan identifies the following complaints:
i. Part 6: injury and sequela information
ii. G442 Tension-type headache
iii. S134 Chronic recurrent mild Sprain and strain of cervical spine
iv. S233 Chronic recurrent mild Sprain and strain of thoracic spine
v. M751 Chronic Rotator cuff syndrome of the right arm (suspected tear of the rotator cuff musculature)
vi. M626 Chronic Muscle strain of the left trapezius and rotator cuff musculature
vii. M480 Suspected central Spinal stenosis of the lumbar spine and suspected intermittent vascular claudication affecting the right leg
viii. 8336 Chronic mild sprain and strain of the right sacroiliac joint
ix. M513 MRI, Multilevel specified intervertebral disc degeneration of the lumbar spine
40There is also a second Treatment and Assessment Plan dated October 20, 2017 prepared by a physician, Dr. Harold Becker. This plan repeats the list above but deletes the word “mild” from the sprains and strains and adds Shoulder Lesions, Other Arthrosis, Post Traumatic Stress Disorder, and Somatization Disorder to the list. I take the term “Shoulder Lesions” to refer to the rotator cuff tears reported elsewhere and “Other Arthrosis” to refer to the two degenerative conditions mentioned in the earlier list: spinal stenosis of the lumbar spine and suspected intermittent vascular claudication, and multilevel disc degeneration of the lumbar spine. In total, the above lists identifies physical symptoms of mild recurrent spinal sprains and strains, tension headaches and a possible rotator cuff tear that may be accident related. It also identifies two possible psychological conditions.
41The respondent relies on an assessment of the clinical record conducted on its behalf by Dr. Shafik Dharamshi, a general practitioner and certified medical assessor on November 6, 2017. After an extensive review of the applicant’s medical record, Dr. Dharamshi concluded:
Documentation provided did not demonstrate any form of accident related physical functional impairment/limitations or restrictions and/or a psychological diagnosis that would require a catastrophic evaluation.
42Dr. Dharamshi’s evaluation accords with the surveillance evidence and I accept it. It acknowledges that the applicant had a number of degenerative conditions prior to the accident. It also reviews imaging reports of the shoulder showing that the complaint of a complete tear of the supraspinatus tendon was not noted until almost a year post-accident, despite a number of earlier investigations. A year after that diagnosis, the surveillance evidence shows the applicant engaged in a wide range of work and personal activities, including lifting heavy objects, climbing ladders, working overhead with tools and socializing with workmates. Six years post-accident, surveillance evidence shows a visibly older applicant engaging in all of the normal activities of daily living that might be expected of an active 78 year old man.
43With respect to Dr. Dharamshi’s conclusions regarding the applicant’s psychological condition, I note that he did not review the psychology report of Dr. Pilowsky. In dealing with the request for an extension of time to file, I addressed my concerns with the applicant’s self-reporting of his condition to Dr. Pilowsky. I do not find that Dr. Pilowky’s report of the applicant’s psychological diagnosis detracts from the combined effect of Dr. Dharamshi’s assessment and the surveillance evidence. Dr. Dharamshi simply noted that there was no suggestion of psychological issues in the applicant’s earlier medical records. Dr. Pilowsky’s report is the only psychological assessment in the record and it does not reach catastrophic impairment levels. Had the applicant not over-reported his impairment as shown by the surveillance evidence, it is likely Dr. Pilowsky may have found even less severe psychological conditions.
CONCLUSION
44Having considered the evidence and submissions of the parties, I decline to exercise my discretion under s. 7 of the LAT Act to give the applicant an extension of time to file his claim for a non-earner benefit with the Tribunal beyond the two year limitation period.
45I find that the applicant has failed to satisfy me on a balance of probabilities that a catastrophic impairment assessment is reasonable and necessary.
46Since there are no overdue payments, no interest is owing.
47The applicant’s appeal is dismissed.
Released: July 16, 2018
___________________________
D. Gregory Flude, Vice-Chair
Footnotes
- Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G
- According the legislation in place in 2015, the applicant had two years from the date of denial to commence arbitration at FSCO. Where the two year limitation period expired pending the report of the mediator, the legislation extended the limitation period for ninety days following release of the mediator’s report. In this case, the report was released on July 4, 2015, more than two years from the date of denial, but, given the ninety day limitation period extension, the applicant had until October 2015 to apply for arbitration at FSCO.
- Manuel v. Registrar, 2012 ONSC 1492
- Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B