J.R. v. Primmum Insurance Company, 2018 CanLII 140991

DECISION AND ORDER

Tribunal File Number: 17-001937/AABS

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:

J.R.

Applicant

and

Primmum Insurance Company

Respondent

PANEL: D. Gregory Flude, Adjudicator

APPEARANCES: For the Applicant: J. R. Applicant Darren Kirupa, Counsel

For the Respondent: Jason Anand, Counsel

HEARD: in Toronto: In Writing on: October 12, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in an automobile accident on June 21, 2014. He has had an ongoing dispute with the respondent over his entitlement to an income replacement benefit. The applicant applied to this Tribunal to determine his entitlement to benefits and the amount of benefit to which he is entitled under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The parties attended a case conference on May 31, 2017. The adjudicator ordered the applicant to disclose a number of documents. The respondent states that it decided to pay the applicant an income replacement benefit from September 17, 2014 to date and ongoing after reviewing the documents disclosed by the applicant.¹ Having made payment in full of all arrears, the respondent takes the position that there is no longer a dispute between the parties over the applicant’s entitlement to an income replacement benefit. It argues that, in the absence of a dispute between the parties, the Tribunal has no further jurisdiction to determine the issues. It asserts a right to send the applicant for periodic medical examinations to determine his continued entitlement and has scheduled examinations for October, 2017.

3The applicant takes the position that the hearing should proceed on the question of the applicant’s entitlement to an income replacement benefit. He points to the wording of the Insurance Act² (the “Act”) stating that the Tribunal is to resolve disputes over a person’s entitlement to benefits or the quantum of those benefits. The effect of an order finding the applicant is entitled to an income replacement benefit is that the respondent cannot unilaterally terminate payment based on new medical evidence. The applicant must consent to any change in the benefit or the respondent must apply to this Tribunal to have the benefit changed. The applicant seeks the reassurance that an order would bring.³

4With respect to the respondent’s right to conduct further medical examinations, the applicant points to the case conference order issued following the May case conference. The order required the respondent to deliver any documents it intended to rely on at the hearing by August 31, 2017. The applicant takes the position that, by asking him to attend further medical examinations after that disclosure date, the respondent is trying to circumvent the terms of the case conference order.

5I find that the issue of entitlement to an income replacement benefit has been conceded by the respondent to the date of the hearing rendering a hearing on that issue unnecessary. I do not accept that the respondent’s unilateral action of approving the benefit removes my jurisdiction in this particular case. The Tribunal’s jurisdiction to adjudicate the matter arose when the applicant filed the application. At that time there was a dispute in respect of the IRB benefit as well as interest. The parties did not make specific submissions on the question of interest so I will give them the opportunity to do so.

6In arriving at my decision, I have not accepted the applicant’s submission that s. 280 of the Act gives me the ability to make a declaration that the applicant is entitled to benefits in the absence of a dispute about entitlement to the benefits. The respondent has conceded that the applicant is entitled to an income replacement benefit to the date of the hearing and ongoing. Such entitlement is the maximum relief that I could grant following a hearing. The respondent has a continuing right to examine the applicant from time to time to determine if he has recovered sufficiently to no longer qualify for a benefit. I cannot order otherwise.

ANALYSIS

Jurisdiction

7Relying on s. 280 of the Insurance Act,⁴ the respondent takes the position that its action of paying the applicant an income replacement benefit from September 2014 to present and ongoing robs me of jurisdiction to adjudicate the issue of the applicant’s entitlement to an income replacement benefit. It relies on D.B. and Cumis General Insurance (“D.B.”), a decision of this Tribunal for this proposition.⁵ I disagree. D. B. is distinguishable.

8Section 280 provides that either the applicant or respondent may apply to the Tribunal to resolve a dispute over the applicant’s entitlement to a statutory accident benefit or the amount of the benefit. In my view, there must be a dispute at the time of application. The Tribunal’s jurisdiction over a matter is determined as of the date upon which the Notice of Application for Dispute Resolution is first filed with the Tribunal. If, at that date, there is a dispute over entitlement to or the quantum of a benefit, then the Tribunal has jurisdiction. If there is not, then the application has no validity and must be dismissed because of a lack of jurisdiction. In this case, at the time the application was filed the issue of entitlement to an income replacement benefit was still in dispute. It was not until after the case conference when the respondent paid the applicant more than 3 years of income replacement benefit.

9The current application differs fundamentally from D.B. because in D.B. the applicant had failed to provide the core documents necessary for Cumis to review his entitlement and make a decision. He had denied Cumis the right to make a decision on entitlement. In the absence of a decision, there could be no dispute between the parties and, thus, the Tribunal had no jurisdiction. In the current case there was a dispute. The applicant had been without payment of benefits for three years. He had been promised payment of benefits up to the period ending 104 weeks from the accident but no money had been received.⁶ He was seeking payments past 104 weeks that were not forthcoming. There was clearly a dispute. The Tribunal had jurisdiction to entertain his application.

10The respondent’s submits that there had been no denial of the payment of benefits after the passage of 104 weeks because it had not conducted independent medical examinations and thus had not denied the post 104 week benefit.⁷ I find this argument ill-founded. It presupposes that there are two applications for an income replacement benefit: one prior to 104 weeks and one subsequent to 104 weeks. There are not; there is only one application. It was always open to the respondent to ask the applicant to attend an independent medical examination to determine entitlement to the benefit after 104 weeks. Unlike the D.B. case, there is no inaction on the part of the applicant that impaired the respondent’s ability to adjust the claim. It had refused to pay the benefit after August 2015.⁸ That fact constitutes a denial. It took no further steps to adjust the claim until after the application to the Tribunal.

11I find that the Tribunal has jurisdiction over the application.

Effect of the Respondent’s Unilateral Decision to Pay the Benefit.

12By deciding to pay the applicant an income replacement benefit in the amount of $400/week, the respondent has conceded both the applicant’s entitlement to the benefit and the quantum of the benefit. The dispute between the parties with respect to that issue is now at an end. To proceed to a hearing on that issue would be a misapplication of the Tribunal’s resources.

13The applicant submits that the respondent has not conceded entitlement.⁹ He submitted in oral submissions that had the respondent conceded entitlement then he would not be pressing the matter forward. The respondent points to its letter to the applicant of September 5, 2017 in which it states: “You will receive a cheque in the amount of $800.00 on a bi-weekly basis going forward and your ongoing entitlement is currently being assessed by Section 44 Post 104 assessments.”¹⁰ The parties interpret this sentence differently.

14I accept the respondent’s interpretation of this letter. The applicant’s interpretation, that the letter is not a concession of entitlement, ignores the respondent’s right to periodically assess the applicant to determine if he continues to meet the criteria for entitlement to an income replacement benefit. The disputed sentence is nothing more than a statement of the respondent’s rights in that regard. It concedes the applicant’s current entitlement subject to the respondent’s right to assess that entitlement on an ongoing basis.

15I stated above that there is only one application for an income replacement benefit, not a pre-104 week application and a post-104 week application. While that is the case, the test for entitlement becomes more stringent after 104 weeks. Prior to 104 weeks the applicant must show a substantial inability to carry out the essential functions of his own employment: after 104 weeks the test becomes a complete inability to carry out the functions of any employment for which he may be reasonably suited as a result of his education, training or experience. The respondent is entitled to examine the applicant in light of the more stringent test to determine his ongoing entitlement. The applicant’s interpretation is an attempt to stifle that right.

Section 280 Entitlement and Quantum

16Having found that the respondent has conceded ongoing entitlement to an income replacement benefit, I will address the applicant’s argument that the wording of s. 280 of the Insurance Act permits me to make a finding of entitlement in the absence of a denial of the benefit. Section 280 states that the Tribunal has jurisdiction to determine disputes between insurance companies and insured persons over entitlement to or the quantum of benefits. The applicant argues that the hearing should proceed on the question of entitlement alone. The respondent characterizes this submission as a request for declaratory relief and I agree.

17Section 280 of the Insurance Act must be read in conjunction with s. 281 to understand the applicant’s submission. Section 281 of the Act gives substance to this Tribunal’s orders. It prohibits insurance companies from reducing benefits ordered by this Tribunal on the basis of alleged changes in circumstances, alleged new evidence or alleged error without either the consent of the insured, a successful appeal of the Tribunal order, or an order from this Tribunal. The applicant submits that, if I make a finding that he is entitled to an income replacement benefit then he will have some measure of income security and the respondent would be unable to unilaterally terminate his benefit on the basis of a future medical examination.

18I find that, in substance, what the applicant is asking me to do is to give a ruling based on a hypothetical. He assumes that all medical assessments carried out on behalf of the respondent will determine that he is not entitled to an income replacement benefit and the respondent will stop the benefit at that time. Clearly such an outcome is a possibility, but it is one of two possible outcomes. It is equally likely that the assessments will determine continued entitlement. Until that determination is made, the facts have not crystalized and the applicant’s position remains speculative. I am not prepared to issue an order on such hypothetical grounds.

ORDER

19Having considered the submissions of the parties and the evidence filed, I order that:

(i) The applicant’s claim for an income replacement benefit is dismissed since it has been conceded by the respondent.

(ii) This order is without prejudice to the applicant’s right to bring any future denial of an income replacement benefit to the Tribunal.

(iii) According to s. 51 of the Schedule, interest is payable on overdue amounts. If the parties cannot agree the amount of interest owing, the parties may make written submissions to me regarding the interest payable according to the following schedule:

(a) The applicant’s submissions to be made within 30 days of the release of this order:

(b) The respondent’s submissions to be made within 21 days after the applicant’s submissions are due;

(c) Applicant’s reply submissions to be made within 15 days after the respondent’s submissions are due.

(d) Submissions should be no more than 10 pages, 12 point type, double spaced. Reply submissions should be not more than 5 pages, 12 point type, double spaced.

(e) Evidence is to accompany the submissions and is not included in the page limits.

Released: February 6, 2018

Gregory Flude Adjudicator

Footnotes

1. 1In the ordinary course, payment of income replacement benefits would commence one week after the accident. In this case, the applicant was entitled to short and long term disability benefits through his work. Accordingly, he is only seeking benefits from September 17, 2014 when his workplace benefits ran out.
2. 2Section 280 of the Insurance Act R.S.O. 1990 c I.8
3. 3Section 281 of the Act
4. 4Section 280 of Insurance Act, R.S.O. 1990 c. I 8. On the date of the accident, the applicable section was s. 279 and it refers to the right to seek mediation. Effective April 1, 2016 the right to mediation followed by an application for arbitration or the commencement of a law suit was repealed and replaced by an appeal to this Tribunal. There is no substantial difference in the subject matter of what can be appealed and I have applied the new procedural regime that was in effect at the time the application was commenced.
5. 5DB and Cumis General Insurance, 16-002730/AABS
6. 6Primmum Letter to applicant dated April 8, 2016
7. 7There are two tests for an income replacement benefit. For the first 104 weeks, an applicant is entitled to receive the benefit if he or she is unable to perform the essential tasks of his or her own employment. After 104 weeks, the test becomes more stringent: can the applicant perform the essential tasks of any employment for which he or she may be suited taking into account the applicant’s education, training or experience.
8. 8Primmum Letter to applicant July 21, 2015.
9. 9The opening paragraph of the applicant’s reply submissions states: “Although payment of IRBs has now been conceded, Primmum has not yet conceded entitlement to IRBs.”
10. 10Tab E to the Affidavit of Carmel Prince sworn October 6, 2017