M.A. v. Aviva Insurance Company of Canada, 2018 CanLII 140338

Tribunal File Number: 17-002565/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

M.A.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: M.A., Applicant Frank Mercurio, Paralegal

For the Respondent: Petros Yannakis, Counsel Alicia Edwards, Law clerk

Italian translator: M.B.

Heard In-Person on: September 21, 2017

I. OVERVIEW

1The applicant is a 75 year old widow who was injured in an automobile accident on June 10, 2014. She sought and received benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). In July 2015, the respondent paid the applicant a non- earner benefit (“NEB”) for the period from December 10, 2014 up to July 17, 2015. In September 2016, the respondent paid NEBs for the period from April 25 to May 22, 2016 and denied the applicant was entitled to further NEBs based on the opinion of its insurer’s examination assessor. The respondent claims that NEBs were paid for procedural reasons, not because the applicant was entitled to NEBs. The respondent also claims the applicant is subject to the $3,500.00 limit for payments for cost of examinations and medical and rehabilitation benefits (the “$3,500 cap”) for minor injuries and that the Minor Injury Guideline applies to her.

2The applicant disputes the respondent’s denial of NEBs and the classification of her injuries as “minor” and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

II. ISSUES

3The disputed issues in this hearing are:

a) Whether the applicant’s injuries arising out of the motor vehicle accident are predominantly minor injuries to be treated within the Minor Injury Guideline (“MIG”)?

b) Whether the applicant is entitled to receive non-earner benefits in the amount of $185.00 per week for the following periods:

i. from July 18, 2015 to April 24, 2016; and

ii. from May 23, 2016 to date and ongoing?

c) Whether the applicant is entitled to an award for unreasonably withheld or delayed payments under s. 10 of Ontario Regulation 664?

d) Whether the applicant is entitled to interest on any overdue payment of benefits?

III. RESULT

4I find that, because of her pre-accident medical history, the applicant comes within the exception to the MIG and that it does not apply to her.

5I find that the respondent was not entitled to withhold the NEBs payable to the applicant from July 19, 2015 to April 24, 2016. However, the applicant is not entitled to NEBs after May 22, 2016.

6I find that the applicant is not entitled to an award under s.10 of O. Reg. 664.

IV. MINOR INJURY and the MIG

7To prove that she is entitled to the medical benefits and the cost of examinations claimed, the applicant must prove on a balance of probabilities that she did not sustain a predominantly minor injury.¹ A minor injury under s. 3(1) of the Schedule means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. A whiplash associated disorder means an injury that occurs to a person’s neck following a sudden acceleration-deceleration force that does not exhibit objective, demonstrable, definable and clinically relevant neurological signs.

8The applicant submits that she has sustained injuries that take her out of the MIG and that she has pre-existing health issues that exclude her from the MIG. For me to determine that the MIG and the $3,500 cap do not apply, the applicant must prove that any one of the following apply to her:

a) Her impairment is not predominantly a minor injury because she has an injury or injuries that are not mere sequelae of her soft tissue injuries;² or

b) She has a pre-existing condition that prevents her from achieving maximal recovery from the minor injury under the MIG or the cap.³

a). Predominantly a Minor Injury

9The hearing record included the reports of Dr. David Mula, a family physician with a focus on chronic pain and Dr. Rajbir Klair, family physician, who both conducted insurer’s examinations (“IEs”) of the applicant at the respondent’s request; the clinical notes and records of the applicant’s family doctor, Dr. Jeffrey Ashley; a June 16, 2014 disability certificate by Dr. Cameron Edgar, chiropractor (the “first disability certificate”); a February 4, 2015 disability certificate by Dr. Ryan Pagnanelli, chiropractor (the “second disability certificate”); and a June 30, 2015 disability certificate by Dr. Damnish Saini, chiropractor (the “third disability certificate”). These documents show a fairly consistent diagnosis of the applicant’s injuries from the accident as a sprain/strain of the neck, both shoulders, right elbow and lumbar spine. The exception was Dr. Mula, who diagnosed the applicant with an additional injury of a right leg strain.

10I find Dr. Mula’s diagnosis of right leg strain problematic as his assessment took place on April 25, 2016, almost two years after the accident. The applicant told Dr. Mula that she hurt her right leg in the accident. She did not tell this to any of the other health practitioners who saw her before Dr. Mula. I do not know to what extent Dr. Mula relied upon the applicant’s description of her leg injury to conclude she suffered a right leg strain from the accident. Dr. Mula did not have a copy of the applicant’s medical records indicating she had been diagnosed with osteoarthritis of the right knee prior to the accident. Nor did the applicant tell him of the diagnosis. None of the other practitioners diagnosed the applicant with a right leg strain. For these reasons, I am unable to give Dr. Mula’s diagnosis of right leg strain much weight.

11Dr. Ashley wrote a referral letter on February 20, 2015 that indicates one of the applicant’s problems was degenerative disc disease at the 4th and 5th vertebrae in the applicant’s neck with encroachment on her spinal cord. The three disability certificates also state that the applicant has radiculopathy of the c-spine or compression of the spinal cord in the neck. However, I was unable to locate any diagnostic reports to support a diagnosis involving the spinal cord. The only diagnostic report of the applicant’s neck contained in the exhibits filed for the hearing is an x-ray report taken on the day of the accident that determined there was no spinal cord or neurological involvement. Accordingly, I am unable to give any weight to the diagnosis of radiculopathy in the disability certificates and Dr. Ashley’s mention of encroachment of C4-5.

12The applicant has a number of health problems including coronary artery disease and insertion of a stent in April 2015, cataract surgery in July 2015, and a duodenal ulcer in December 2015. She has undergone a deterioration of her interstitial lung disease and is now on oxygen. The applicant has asked that I find that the accident made a material contribution to these health problems, but I am unable to do so. I have not been provided with any evidence that these conditions or the deterioration of the applicant’s health because of these conditions are in any way related to or were affected by the applicant’s accident.

13I find as a matter of fact that the applicant suffered soft tissue injuries in the accident consisting of a sprain/strain of the neck, both shoulders, right elbow and lumbar spine. I find that for these reasons, she suffered predominantly minor injuries in the accident.

b). Pre-existing Medical Condition

14The $3500 cap and the MIG do not apply to the applicant if she comes within the exception for people with pre-existing injuries under s.18 (2) of the Schedule. The applicant submits that she had a number of pre-existing injuries that she believes take her out of the MIG. The applicant comes within the exception if there is compelling evidence provided by a health practitioner that satisfactorily demonstrates that her pre-existing medical condition prevents her from achieving maximal recovery from the minor injury under the MIG or the $3,500.00 cap.

Evidence of the pre-existing medical condition must be in documents that were prepared by a health practitioner before the accident took place.

15The applicant has the following pre-existing medical conditions that were documented in the clinical notes of Dr. Ashley before the accident:

a) interstitial pulmonary disease;

b) high blood pressure;

c) diabetes;

d) thyroid cancer; and

e) dizziness and loss of balance

16The respondent relies on Dr. Klair’s IE report dated December 15, 2014. His opinion was that the applicant’s pre-existing medical conditions may prolong her recovery. However, Dr. Klair concluded that a prolonged recovery is not a reason to exclude the applicant from the MIG. I find Dr. Klair’s conclusion does not make sense. The MIG expects that treatment will take place within a twelve week time frame. If a person’s recovery takes longer than twelve weeks because of a pre- existing medical history, then the person will be unable to reach maximum medical recovery within the MIG. I find that one of the reasons the Legislature created an exclusion from the MIG is to accommodate insured persons whose recovery from their accident injuries is prolonged because of their pre-accident medical conditions.

17Dr. Klair saw the applicant six months after the accident. He found that she still had impaired ranges of motion to her neck, both shoulders and her lumbar spine. However, he also stated that the applicant had reached maximum medical recovery at that time. Maximum medical recovery means that there would be no further improvement expected. Dr. Klair’s opinion that the applicant reached maximum medical recovery seems contrary to his opinion that she may have a prolonged recovery. Dr. Klair did not provide any explanation to reconcile how the applicant’s recovery may be prolonged and how she still had impaired ranges of motion with his opinion that she reached maximum medical recovery. If he thought the applicant would not undergo any improvement in her pain complaints or ranges of motion with further treatment, I would have expected to see such an explanation in his report. As there is no such explanation, I am unable to accept his opinion that the applicant had reached maximum medical recovery.

18The respondent submits that I can make a determination that the applicant is excluded from the MIG only if I have a medical opinion that she will not reach maximum medical recovery because of her pre-accident medical conditions. According to the respondent’s submissions, I am prohibited by the Schedule from considering the applicant’s pre-existing medical problems because neither Dr. Klair nor any other physician provided an opinion on the effect they would have on the applicant’s recovery under the MIG. I disagree with the respondent. I find that Dr. Klair’s opinion that the applicant’s pre-accident medical history may prolong her recovery qualifies together with the opinions expressed by her treating physicians in her clinical notes and records.

19Dr. Klair’s opinion that the applicant’s recovery may be prolonged was based on his understanding that she had pre-existing high blood pressure, high cholesterol and diabetes. The applicant did not disclose her shortness of breath from a lung condition to Dr. Klair. He would have been aware of her lung condition if he had a copy of her pre-accident records, which he did not.

20Although Dr. Klair did not provide an opinion about the effect of the pre-existing lung condition, I find that his opinion that the applicant’s other pre-existing medical conditions may prolong her recovery combined with the medical opinions that diagnose the applicant with pre-existing lung problems contained in Dr. Ashley’s clinical notes and records are compelling evidence as required under the Schedule. A diagnosis of chronic interstitial changes to the lungs was made by a radiologist, who is a health practitioner, based on the applicant’s chest x-rays taken in 2012. A clear deterioration of the applicant’s lung condition and her limited lung capacity was diagnosed by a health practitioner, the applicant’s respirologist, Dr. Varkul, as of early 2015 who determined she could only walk for one minute without oxygen. It is common sense that a person who has shortness of breath upon physical exertion will require a longer time to undergo physiotherapy. I find that the diagnosis of the applicant’s lung condition by her respirologist as interstitial pulmonary edema is an opinion that, together with Dr. Klair’s opinion that the applicant’s other pre-existing medical conditions may prolong her recovery, is compelling evidence from health practitioners.

21I find that the applicant has proven on a balance of probabilities with compelling evidence that her pre-accident medical history prevents her from reaching maximal medical recovery within the MIG. For this reason, I find that she comes within the exception to the MIG and that it does not apply to her.

V. NON-EARNER BENEFIT

22The respondent submits that it paid the applicant NEBs because of procedural requirements and not because she meets the test for NEBs that requires her to have a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The respondent claims that any limitations the applicant experiences in engaging in her activities of daily living are caused by health conditions that have no relation to the accident. The respondent also claims that NEBs from July 18, 2015 to April 24, 2016 are not payable because the applicant failed to submit to an IE.

23When an insured person first applies for an NEB by submitting an application and a disability certificate, the insurer is required to respond in writing within ten business days under s. 36(4) of the Schedule. In the written response, the insurer can either notify the insured person that the insurer will pay the NEB, notify the person that the NEB will not be paid and give reasons why the insurer is not paying the NEB, or request information from the insured person if required. When an insurer notifies the insured person why it is not paying the NEB, it is required to provide a medical reason along with any other reason why it denies the NEBs. The insurer is also required to tell the insured if the insurer requires her to undergo an insurer’s examination⁴ in order to determine if the NEB is payable. If the insurer fails to provide the insured person with the proper notice within ten business days, the insurer is required to pay the NEB until it does provide the proper notice to the insured.⁵

24The applicant claims that she applied for NEBs as required under the Schedule by providing the respondent with an application for accident benefits and the first two OCF-3 disability certificates, but the respondent failed to provide the requisite notice within ten business days. The applicant submits that the respondent is required by s. 36(6) of the Schedule to pay NEBs from July 18, 2015 until proper notice was provided in accordance with s. 36(4) of the Schedule. The applicant submits that proper notice was not received until April 2016 and that the respondent ought to have paid her benefits until that time.

25In July 2015, the respondent paid the applicant NEBs from December 10, 2014 up to July 17, 2015 and advised the applicant she was not entitled to any further NEBs because she failed to undergo IEs that had been requested by the respondent. The respondent paid NEBs to the applicant from April 25, 2016 to May 22, 2016 and denies that the applicant is entitled to NEBs after May 22, 2016.

26Accordingly I must determine the following:

a) Whether the respondent is required to pay NEBs from July 18, 2015 to April 24, 2016 pending the applicant’s attendance at an IE on April 24, 2016; and

b) Whether the applicant continues, since April 24, 2016, to have a complete inability to carry on a normal life as a result of the accident.

a). Payment of NEBs from July 19, 2015 to April 24, 2016

27Under s. 36(4)(b) of the Schedule, if the respondent wanted to have the applicant assessed to determine her initial entitlement to NEBs, the respondent was required to provide the applicant with notice advising her of the requirement for the assessment. The s. 36 provision dealing with an assessment to determine initial entitlement is somewhat different from the provisions in s. 37 of the Schedule, which deal with assessments to determine ongoing entitlement to NEBs in those cases where the insurer has accepted the insured person was initially entitled to NEBs. Sections 36(4)(b) and s.37(1)(b) of the Schedule are similar because they both require the insurer to give the insured person notice of the IE that contains specific information and to schedule the IE for a date and time convenient to the insured person in accordance with s. 44 of the Schedule. Sections 36 and 37 are different because s. 37 allows an insurer to stop payment of NEBs if the insured person fails to attend an IE⁶, whereas there is no similar provision in s. 36 of the Schedule.

28To stop paying benefits, the notice to the insured person must comply with s. 44 of the Schedule. According to the evidence before me, the respondent had scheduled an IE in February 2015 to again assess whether the applicant’s injuries were within the MIG. The dates of the assessment were changed a few times to accommodate the applicant’s schedule as she was not available on the dates provided in the first four notices. The last date the MIG IE was scheduled for was March 26, 2015, on a date that the applicant was already scheduled to see a specialist. The respondent did not reschedule the assessment a fifth time, despite the applicant’s requests made on February 10, March 24, and August 13, 2015.

There was no evidence that the respondent or the IE assessor tried to contact the applicant to determine what dates she was available before any of the notices were sent out to her. I find that the respondent did not comply with s. 44(9)2(i) of the Schedule because the respondent did not make reasonable efforts to schedule the IE for a day or time convenient to the applicant. This means the respondent was not entitled to stop payment of NEBs because the applicant failed to attend at an IE.

29The first and only notice before me from the respondent requiring the applicant to attend an IE for the purposes of determining entitlement to NEBs that complies with s. 44 of the Schedule is dated April 11, 2016. In that notice, the respondent advised that the purpose of the assessment was to determine ongoing entitlement to NEBs. The respondent had provided notice to the applicant after March 17, 2016 and before April 24, 2016 that it was going to reschedule an IE and referred to s. 37(7)(a) and (b) of the Schedule, which deal with a failure to attend IEs scheduled to determine whether an insured person continues to be entitled to a specified benefit. In this case, the specified benefit is the NEB in issue. These two notices and the references to “ongoing entitlement” and s. 37 of the Schedule are evidence that the respondent had accepted that the applicant was, at one point, entitled to NEBs. For this reason, I do not accept the respondent’s submission that it took the position that the applicant was never entitled to NEBs. My finding is further supported by the respondent’s payment in September 2016 to the applicant of NEBs for the period from April 25, 2016 to May 22, 2016. The respondent advised the applicant that the payment of NEBs was made because the applicant complied with attending the IE for NEBs on April 25, 2016.

30There was no evidence that the respondent provided any earlier notice of an IE for the NEBs that complies with the Schedule. Therefore, I find that the respondent was not entitled under s. 37(7) to make a determination that the applicant was no longer entitled to NEBs or to refuse to pay NEBs before the applicant attended at the IE on April 25, 2016.

31If I am incorrect and the respondent never accepted that the applicant was entitled to NEBs at any time and the IE on April 25, 2016 was supposed to be conducted under s. 36(4) (b) of the Schedule and not s. 37, then under s. 36(6) of the Schedule, the respondent was required to pay NEB until a proper notice under s. 36(4) was provided to the applicant. There was no evidence before me that the proper notice to the applicant that complies with s. 36(4) was provided by the respondent before April 25, 2016. For this reason, the respondent was not entitled to withhold NEBs from July 19, 2015 up to April 24, 2016.

32The respondent submits that the applicant was never entitled to NEBs, and that just because it provided defective notices to the applicant, that does not mean that it should have had to pay NEBs to the applicant until proper notice was given to her. The respondent relies on the Court of Appeal decision of Stranges v. Allstate,⁷ which held that a faulty denial notice did not mean the insurer was required to pay the applicant income replacement benefits (“IRBs”) until proper notice was sent. Ms. Stranges relied on a Supreme Court of Canada decision that had determined that a limitation period did not start until a proper denial was made.⁸ The Court of Appeal in Stranges determined that the plaintiff was still required to prove that she was entitled to the continued payment of IRBs because of her continued substantial inability to perform the essential tasks of her employment.

33I find that Stranges is distinguishable for a number of reasons. In that case, Allstate paid Ms. Stranges IRBs until after she underwent the assessments. There was no issue about whether Allstate was entitled to withhold IRBs under s. 64(14) of the Bill 164 Schedule⁹ until Ms. Stranges attended an assessment or whether the IE was properly scheduled. Section 64(14) of the Bill 164 Schedule is similar to s. 37(7)(a) and (b) of the present Schedule. Nor was there an issue in Stranges as to whether Allstate was required to pay IRBs pending its proper response upon receipt of Ms. Stranges’ application for IRBs, unlike this case.

34For these reasons, I find that the respondent was not entitled to withhold the NEBs payable to the applicant from July 19, 2015 to April 24, 2016.

b). Entitlement to Non-Earner Benefits from May 23, 2016

35The test for entitlement to a non-earner benefit is set out in s. 12(1) of the Schedule. The applicant must prove on a balance of probabilities that because of her accident injuries, she suffers from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

36Both parties agree that the general principles from the 2009 Court of Appeal decision of Heath v. Economical Mutual Insurance Company¹⁰ apply for determining whether the applicant is entitled to NEBs. These principles require a comparison of the applicant’s activities and life circumstances before the accident to those post-accident. All of the pre-accident activities in which the applicant ordinarily engaged should be considered. However, greater weight may be assigned to those activities which the applicant identifies as being important to her pre-accident life. The Schedule is clear that the applicant must establish that those changes in her life amount to her being continuously prevented from engaging in substantially all of her pre-accident activities. Although I find that the applicant has impairments that have greatly limited her normal activities since the accident, she has failed to prove that the accident caused those impairments.

37The applicant could not recall that she had been prescribed nitroglycerin and had bouts of dizziness before the accident. She failed to advise a couple of the IE assessors that she had stents inserted into her heart and was diagnosed with emphysema before the accident. However, I do not find that her omissions were deliberate attempts to mislead because she was forthright about how her pre- accident conditions have affected her ability to function.

38I find, based on the applicant’s evidence and her reports to various health practitioners, that prior to the accident she lived in an apartment and was able to do all the cleaning of her apartment. Her housekeeping was important to her. She was able to take the bus to shop for groceries and to see her doctor as he was close by. Her daughter would drive her to see her specialists because they were farther away. The applicant would go to her sister’s house and occasionally friends would come over to her apartment. She visited with her daughter and her sister almost every week. She would go out with her daughter and her granddaughter. She went to a cottage with her sister in the summer. Based on the evidence of the applicant’s daughter, I find that the prior to the accident, the applicant required her daughter’s assistance with keeping track of her medications.

39By December 2015, the applicant had moved out of her apartment and into a basement apartment in her daughter’s house that has easy access to outside. This was a move that was planned before the accident occurred. The applicant advised the respondent’s IE assessors in December 2015, confirmed by the applicant’s daughter who testified at the hearing, that at that time, the applicant was independent in all aspects of her self-care, but required help at times doing up her brassiere. She had returned to the majority of her household tasks, but had difficulty lifting heavy loads of laundry. She was no longer going to restaurants with her sister or for walks. She was not using a walker at that time, but Dr. Klair noted that she lost her balance during the assessment of her tandem gait. There is no medical evidence that the applicant’s balance difficulties are related to her accident injuries.

40Fatima Butt, occupational therapist, conducted an IE of the applicant in her home on December 30, 2015 for the purpose of assessing the applicant’s attendant care needs. She concluded that the applicant demonstrated the functional ability to perform her pre-accident personal care and housekeeping activities, even though the applicant declined to try certain tasks, including meal preparation, dishwashing, bathroom cleaning, floor care, sweeping, mopping, vacuuming, bed making and garbage removal, because of her complaints of pain in her right knee and back. Ms. Butt observed that, although the applicant had reduced ranges of motion in her neck, shoulders, elbows, hips and back, her ranges of motion were within normal limits and she demonstrated the ability to engage in her self-care and housekeeping activities. It is not clear whether an interpreter was present.

41By May 2016, the applicant was on oxygen and had undergone a deterioration in her functional abilities, according to her report to Dr. Mula. She was receiving help with her bathing, dressing and undressing from her daughter. She was able to grocery shop with her daughter, cook sometimes and do the laundry, but had help from her family for the rest of her housekeeping tasks. She told Dr. Mula that she no longer went to church, to restaurants, movies or to the cottage with her sister because of her lung condition and pain in her upper and lower extremities.

42The applicant testified that, because of her lung condition, she started using oxygen about a year after the accident. She started using a walker about one year before the hearing because of her lung condition and osteoarthritis in her right knee. She was told by her respirologist, Dr. Varkul, that her breathing would get worse over time. She is unable to use stairs because of her breathing difficulties and her need for a walker. She is unable to take the bus anymore. As noted earlier, she cannot walk one minute without oxygen because of her lung condition. When she feels well, she will wash dishes, but has to wear her oxygen mask. The applicant testified that without the oxygen tank, she is unable to do anything.

43I find that the applicant’s lung condition and osteoarthritis have limited the applicant’s normal activities of daily living to the extent that they have caused her to have a complete inability to engage in a normal life. However, there was no evidence before me that those conditions have any relationship to the accident, were exacerbated by the accident, or that the accident was a material contribution to those conditions. For these reasons, I find the applicant is not entitled to NEBs after May 22, 2016.

VI. AWARD UNDER ONTARIO REGULATION 664

44I may make an award under s. 10 of O. Reg. 664 if I find that the respondent unreasonably withheld or delayed payments. This requires looking beyond the reasonableness of the insured’s conduct in seeking NEBs, whether I agree with the respondent’s conduct, or even whether I find the respondent’s denial to have been wrong. Rather, it entails assessing whether the respondent exceeded the limits of what is reasonable. Although I determined that the respondent was not entitled to withhold NEBs from the applicant for the period from July 19, 2015 to April 24, 2016, I do not find the respondent acted unreasonably. A finding of entitlement to NEBs should not be combined or equated with the distinct issue of whether the respondent unreasonably withheld or delayed payments to the threshold contemplated in s. 10 of O. Reg. 664 to warrant an award.

45When an insurer initially fails to respond to an application for a specified benefit, the Schedule is silent on whether s. 37 applies once a benefit is paid under s. 36(6) of the Schedule or whether s. 36 still applies. Further, it was not unreasonable for the insurer to rely on the Stranges v. Allstate decision. For these reasons, I do not accept that an award is appropriate under the circumstances.

VII. DETERMINATION and ORDER

46The applicant comes within the exception to the MIG because of her pre-accident medical history and, accordingly, the $3,500.00 cap and the MIG do not apply to her.

47The respondent is required to pay the applicant NEBs in the amount of $185.00 per week from July 19, 2015 to April 24, 2016.

48The applicant is not entitled to NEBs after May 22, 2016.

49The applicant is entitled to interest on the overdue payment of NEBs. If the parties are unable to agree on the quantum of interest by May 16, 2018, they may make submissions to me in writing on the amount by May 23, 2018.

50The applicant is not entitled to an award under s. 10 of O. Reg. 664.

Released: April 23, 2018

Deborah Neilson Adjudicator

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635 (Ont. Div. Ct.)
2. 2Section 18(1) of the Schedule
3. 3Section 18(2) of the Schedule
4. 4s.44 of the Schedule.
5. 5Section 36(6) of the Schedule
6. 6See s. 37(2)(d) and s. 37(7) of the Schedule . A plain reading of these sections requires that an insurer’s notice to attend an IE must be made “in accordance with” the Schedule before the insurer can rely on these sections to stop the payment of an NEB.
7. 7Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457
8. 8Smith v. Co-operators 2002 SCC 30, [2002] 2 S.C.R. 129, S.C.C.
9. 9Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 (the “Bill 164 Schedule”) applied to Ms. Stranges’ claim for benefits.
10. 10Heath v. Economical Mutual Insurance Company, 2009 ONCA 391