Tribunal File Number: 17-000513/AABS
Case Name: 17-000513 v Wawanesa Mutual 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:
R. S.
Applicant
And
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Blaine Baker
APPEARANCES:
For the Applicant: Allan Blott, counsel
For the Respondent: David Scott, counsel
HEARD: Written Hearing: May 17, 2017
Introduction
1This is an application by R. S. (the “applicant”) to the Licence Appeal Tribunal (the “Tribunal”) after the respondent stopped his income replace benefits arising out of a motor vehicle accident on October 29, 2011. The respondent contends that it has several reasons for the stoppage, including the fact that the applicant did not provide information requested by it, as required by statute. While I agree that the applicant was non-compliant for a period of time and that benefits were correctly stopped, the applicant did ultimately comply, and thus benefits should be reinstated from the date of compliance, as set out below.
Facts
2The applicant was a passenger injured in a “semi-truck-rig” roll-over on a black-iced bridge on October 29, 2011 and sought and received benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). In this appeal, the applicant seeks reinstatement of income replacement benefits of $400.00 per week that were paid to him by the respondent from October 7, 2012 to October 9, 2016.
3The respondent stopped or suspended the income replacement benefits on October 9, 2016 because the applicant failed to provide an updated disability certificate, an updated catastrophic injury assessment, a list of his then-current health-care providers, and descriptions of the medical treatment he was receiving. He had been asked by the respondent to provide these documents in letters dated July 12, 2016, August 9, 2016, and September 12, 2016. When he failed to provide them, the respondent suspended the benefits by way of an explanation of benefits letter dated October 9, 2016. That suspension was based on the applicant’s non-compliance with the respondent’s requests, and not explicitly on a lack of entitlement to benefits.
4The applicant eventually provided Dr. Brian Schroeder’s updated disability certificate to the respondent on March 24, 2017, together with evidence of his regular medical examinations and treatment by Drs. Pattison, Baird, and Hartford during the autumn of 2016 and winter of 2017. The applicant provided an updated catastrophic injury examination done by Dr. George Vincent on June 12, 2017. The issue of whether the applicant’s injuries are catastrophic is currently before Ontario’s Financial Services Commission.
5Despite providing the information requested, the respondent did not reinstate the applicant’s income replacement benefits on the grounds that they had been permanently discontinued due to the applicant’s failure to provide required information to the respondent. The respondent did not provide evidence of how or when, after having received the updates described in the last paragraph, it communicated this position to the applicant.
Issues in Dispute:
6The case conference order sets out one issue in dispute:
(i) Is the Applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period October 9, 2016 to date and ongoing, a benefit that was discontinued because of a lack of documentation. The parties did not ask me to determine eligibility for income replacement benefits from an impairment perspective.
7To decide that issue, I must consider:
(a) Has the applicant answered requests from the respondent for further information appropriately and in a timely manner?
(b) Do sub-sections 33(1), 57(2), and 57(4) of the Schedule justify the respondent’s permanent termination of the applicant’s income replacement benefits on October 9, 2016?
Analysis
8Because this was a written hearing, the only evidence before me is in the form of documentary material. I have considered all of the documents that were submitted by the parties.
Did the applicant answer requests from the respondent for further information appropriately and in a timely manner?
9The applicant does not dispute that he did not send the documents requested by the respondent prior to the suspension of his income replacement benefits on October 9, 2016. In fact, his counsel at the time wrote to the respondent and specifically advised it that the applicant would not provide the requested documents. The applicant also does not submit that the respondent’s request for documents, including an updated disability certificate, was unreasonable. Moreover, neither party made submissions about a reasonable explanation for the applicant’s refusal to provide medical documentation. Accordingly, I find that the applicant did not provide the requested information in a timely manner.
10Section 33(6) of the Schedule sets out the consequences for failing to provide documents within a reasonable time. It relieves the respondent of the obligation to pay benefits during any period of non-compliance with a request for further information. Applying that section to the current facts, I find that the respondent was entitled to suspend the income replacement benefit on October 9, 2016. The respondent was entitled to suspend payment until the applicant complied with its request for documents.
Do sub-sections 33(1), 57(2), and 57(4) of the Schedule justify the respondent’s permanent discontinuation of the applicant’s income replacement benefits as of October 9, 2016?
11Had the respondent relied only on the provisions of section 33(1), the impact of section 33(6) would have been that the respondent would have had an obligation to recommence payment of the benefit once the applicant complied with its request. The applicant complied by March 24, 2017 with respect to the disability certificate and with respect to the treatment he was receiving at the time, and by June, 2017 with respect to information regarding his catastrophic impairment designation. However, the respondent also relies, and has done so since its October 9, 2016 explanation of benefits letter, on the provisions of subsections 57 (2), (4), and (7). Subsection 57(2) specifies that a person who is entitled to an income replacement benefit “shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary [to return to work]”, while subsections 57(4) and (7) empower the insurer to stop payment of benefits if the insured person fails to obtain treatment. Because the respondent’s requests for updated medical documentation and submissions to ongoing treatment were reasonable, the March 24, 2017 date of the applicant’s delayed compliance with those requests is the date that benefits should have been reinstated. However, the respondent also takes the position that the applicant is not currently undergoing treatment and that this disentitles him to the income replacement benefit he seeks. I disagree with that submission, on the basis that the applicant has had medical care in recent months and that the respondent has known about that care since late-March of 2017. The respondent has not proved its position with respect to the applicant’s failure to obtain treatment.
12The applicant provided evidence to the respondent of his treatment by Drs. Pattison, Baird, and Hartford during the fall of 2016 and the winter of 2017, together with an updated disability certificate on March 24, 2017. That material demonstrates continuing medical attention.
13Not explicitly stated but implied in the respondent’s submissions is the contention that the applicant must have suffered a catastrophic impairment to qualify for continuation or extension of his income replacement benefits. I find that a designation of catastrophic impairment is not a pre-requisite to entitlement to income replacement benefits, post-104 weeks of an accident or otherwise.
14The tests for income replacement benefits are set out in section 5 of the Schedule. There is a test for entitlement to benefits for the first 104 weeks following an accident, and a more stringent test for entitlement to benefits after the expiry of 104 weeks post-accident. Since more than 104 weeks have passed since the accident, the applicant would be entitled to income replacement benefits if he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. There is no reference in this wording to a finding of catastrophic impairment. Thus, the applicant is entitled to income replacement benefits as long as he meets this test.
15The applicant had provided the relevant medical information to the respondent by March 24, 2017. I find that the date for the reinstatement of benefits is March 24, 2017, not June 12, 2017 when he was retested for catastrophic impairment.
ORDER
16Pursuant to the authority vested in me under the provisions of the Schedule, I direct Wawanesa Mutual Insurance to recommence payment to the applicant of income replacement benefits on March 24, 2017 at the rate of $400.00 per week. Interest is also owed under the Schedule.
Released: February 12, 2018
__________________
Blaine Baker, Adjudicator