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:
A.H.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION [AND ORDER]
PANEL: Lori Marzinotto, Vice-Chair
APPEARANCES:
For the Applicant: Neritan Ciraku, Counsel Marin James Nati, Counsel
For the Respondent: Patrick Baker, Counsel
Court Reporter: Ian Clough (October 30-31, 2017) Paul Kaczur (November 9, 2017)
Heard in-person: October 30-31, November 9, 2017
BACKGROUND
1A.H. (the “applicant”) was injured in an automobile accident on December 4, 2014, (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant applied for certain benefits which the respondent denied. The applicant disagreed with the denials and submitted an application to the Licence Appeal Tribunal – Accident Benefits Service (the “Tribunal”).
3The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute and a hearing was required.
ISSUES IN DISPUTE
4The following are the issues to be decided as stated in the Tribunal’s Order of August 3, 2017:
(a) Is the applicant barred by s. 55(2) of the Schedule from commencing a proceeding to dispute a denial of income replacement benefits (“IRBs”) as the applicant is non- compliant with a s. 44 insurer examination (“IE”) request for ophthalmology assessment scheduled on April 11, 2016?
(b) Are the applicant’s injuries arising out of the motor vehicle accident predominantly minor injuries to be treated within the Minor Injury Guideline (“MIG”)?
(c) Is the applicant entitled to receive a weekly IRB in the amount of $400.00 from December 11, 2014 onwards?
(d) Is the applicant entitled to receive a medical benefit in the amount of $71.46 for prescription medicine that was denied on February 9, 2016?
(e) Is the applicant entitled to receive interest on the overdue payment of benefits in the amount of $29,271.46 @ 1% compounded monthly?
RESULT
5I find that the applicant is statute-barred from applying to the Tribunal pursuant to s.55 (2) for failing to attend a properly scheduled s. 44 IE and, therefore, the application is dismissed.
6Given that I have found that the applicant is prevented from applying to the Tribunal until such time as he attends the s.44 IE, I do not need to provide an analysis of the substantive issues in dispute. However, I have chosen to give brief reasons on the substantive issues given I heard three days of evidence with additional written submissions.
7Even if I had found that the applicant was not statute-barred from applying to the Tribunal, I would have dismissed the application for the following reasons:
a) The applicant’s injuries arising out of the accident are predominantly minor injuries to be treated within the MIG.
b) b) Given the applicant’s injuries are to be treated within the MIG and the applicant exhausted the MIG limits, he is not entitled to the medical benefit in the amount of $71.46 for prescription medicine. This claim was not pursued at the hearing with any vigor.
c) c) I find that the applicant has failed to establish entitlement to IRBs for the following reasons:
i. As a result of and within 104 weeks of the accident, the applicant has not suffered a substantial inability to perform the essential tasks of his employment;
ii. Causation is a significant factor in this matter as a result of the applicant being involved in a second accident on September 25, 2015. The applicant has failed to establish that his complaints are as a result of the December 4, 2014 accident;
iii. There is conflicting evidence as to whether the applicant is employed or self-employed. Under the Schedule, IRBs are calculated differently if employed or self-employed. The applicant has failed to quantify the amount the IRBs regardless of his employment status; and,
iv. Given I have found there are no overdue payments owed to the applicant, no interest is owed.
ANALYSIS – APPLICANT IS STATUTE-BARRED
8The applicant submitted an OCF-1 Application for Accident Benefits on December 18, 2014.1
9The OCF-1 indicates the applicant is self-employed and that an Employer’s Confirmation Form, OCF-2, would follow. There was no income information provided on the OCF-1. It indicated that the applicant’s injuries prevented him from working as of December 4, 2014.
10The respondent repeatedly requested a completed OCF-2 and a Disability Certificate, OCF-3, from the applicant on December 22, 2014,2 February 26, 2015,3 March 19, 2015,4 and June 5, 2015.5
11The applicant did not provide the completed OCF-3 dated July 10, 2015 until July 23, 2015, when it was submitted by fax, over seven months after the accident. Thus, even if the applicant was able to prove entitlement to IRBs, as per s. 36(3) of the Schedule, he would not be entitled to any IRBs prior to July 23, 2015, the date the OCF-3 was submitted.
12The OCF-3, which was completed by Triangle Physiotherapy & Rehabilitation Inc. (physiotherapist), indicated the applicant was not substantially unable to perform the essential tasks of his employment and that he could return to work on modified hours and/or duties.6The OCF-3 also indicated that the applicant was working 2-4 hours per day and, at times, did not work at all.
13The OCF-3 indicated the duration of the applicant’s disability as 9-12 weeks. As mentioned above, the respondent received the OCF-3 approximately 34 weeks post- accident. It then required assessments in order to determine the applicant’s entitlement to IRBs.7
14Accordingly, it requested that the applicant attend IEs for the purpose of evaluating his entitlement to IRBs. Three were rescheduled at the applicant’s request.8
IE - Functional Abilities Evaluation
15The first IE was conducted by Kinesiologist Mr. Hartog on September 23, 2015 (report dated October 1, 2015). The applicant stated that he was having vision issues and had seen his optometrist on multiple occasions. The applicant indicated that his optometrist referred him to an ophthalmologist, who did not provide any follow-up appointment or further recommendation other than refer the applicant to a psychiatrist and limit his screen time.
16Mr. Hartog’s report goes on to state that the applicant was seen by a psychiatrist at St. Michael’s Hospital. However, the applicant admitted at the hearing that he had never been to such an appointment.
IE - Otolaryngology Evaluation
17The second IE was conducted by Dr. Castillo on January 4, 2016 (report dated January 7, 2016). The applicant’s main complaints were headaches and vision problems. The applicant reported that he saw his doctor after the accident, who told him his vision problems could have been caused by the accident. He also advised that he had an upcoming appointment with an Ophthalmologist in February.
IE – Neurology Evaluation
18The third IE was conducted by Dr. Mehdiratta on January 14, 2016 (report dated January 28, 2016 and Addendum dated February 26, 2016). The applicant complained of headaches in the eyes, forehead, and posterior aspect of his head. The applicant reported that he experiences blurred and flashing vision with headaches, and further reported that his main limitation to returning to full-time employment was due to headaches and blurry vision. Dr. Mehdiratta recommended an Ophthalmology assessment in order to rule out ocular causes of the applicant’s self-reported symptoms of headaches.
19There was no objective evidence of myelopathy, radiculopathy, or neuropathy. From a neurological perspective the applicant did not have a substantial inability to perform the essential tasks of employment.
IE – Physiatry Evaluation
20The fourth IE was conducted by Dr. Boulias on January 26, 2016 (report dated February 8, 2016).
21The applicant advised Dr. Boulias that he has difficulty seeing, which prevents him from doing his work. He also mentioned that he has headaches most of the time, pain in the frontal area on top of his eyes, and poor vision.
22All of the IE assessors found that the applicant was substantially able to perform the essential tasks of his employment.
23On March 9, 2016, the respondent advised the applicant that his entitlement to IRBs would be made upon receipt of an Ophthalmology report.9
24The applicant failed to attend the Ophthalmology IE and, on April 20, 2016, was advised that he could not commence a proceeding under s. 280 of the Insurance Act until he was in compliance. He was further advised that if he would like the IE rescheduled to contact the respondent and provide a reasonable explanation as to why he could not attend.
25On April 27, 2016 the applicant advised the respondent that he would not attend the s. 44 IE because he had already attended one.10
26At the hearing, the applicant stated that he did not go to the Ophthalmology IE because he thought it was “pointless.” He had already been seeing an eye doctor in Hamilton and saw no point in going to another.
27That is to say, although he had seen his own eye doctor and the neurologist Dr. Mehdiratta recommended that he see an Ophthalmologist, he refused to attend the s.44 Ophthalmology IE.
28I find that, given the applicant’s reported complaints and the IE assessors’ conclusions, the respondent has proven that its request for a s.44 Ophthalmology IE was reasonable and necessary in order to determine the applicant’s entitlement to IRBs. The applicant refused to attend the IE and did not indicate that the respondent’s notice or reasons provided for the IE were not in compliance with the Schedule. The respondent provided notice that the applicant was in non-compliance for his non-attendance and that no benefit would be paid during the non-compliance.
29At this point, the respondent had an OCF-3 indicating the applicant was substantially able to perform the essential tasks of his employment, could work on modified duties, and was working.
30I find that, even if the applicant was not statute-barred, he would not be entitled to IRBs. On a balance of probabilities, the evidence before me makes clear that he has not suffered a substantial inability to complete the essential tasks of his employment.
IRB – Quantum
31Nor has the applicant established quantum. The applicant failed to provide sufficient income documentation to allow the respondent to quantify the IRB.
32Indeed, at the hearing, the applicant refused to provide sufficient information concerning his income. He was specifically questioned as to how the respondent could calculate the amount of IRBs on the information received. In addition, I indicated that, given that one of the issues in dispute is quantum, I would require evidence of his income in order to assess the amount claimed. The applicant refused to provide me with sufficient evidence.
33The applicant also failed to provide an OCF-2 with his claim. The applicant provided tax returns from 2014 to 2016; however, these are insufficient to calculate a weekly IRB when it is unclear if the applicant is employed or self-employed. The applicant did not provide the required information under s. 4(2)1 of the Schedule if he was employed, nor did he provide the required information under s. 4(2)3 of the Schedule if his view was that he was self-employed. The respondent would also be entitled to a credit for any employment income the applicant had earned which, as of the date of the hearing, was not quantified.
34Whether the applicant is employed or self-employed was contested and, ultimately, unclear. While the applicant stated that he was an employee of the Albanian Canadian Association, the evidence indicates otherwise. A Corporation Profile Report dated April 6, 2000 of Albanian Canadian Association, lists the applicant as a Director.11 A search conducted by the respondent, last updated April 26, 2016, lists the applicant as the Executive Director.12
35However, during the Functional Abilities Evaluation,13 the applicant stated that he was self-employed. The Application for Accident Benefits14 also indicates he is self- employed. Despite these suggestions, the applicant indicated on cross-examination that he was employed, not self-employed. Adding yet further confusion, the applicant indicated on re-examination, that he pays his taxes himself and considers himself “self-contracted”, despite his repeated suggestion during the hearing that he was “employed”. This raises another level of concern regarding the quantum of IRB.
36The letter of employment dated February 15, 201715 submitted by the applicant from an individual listed as the President of the Board of Directors, indicates that the applicant works modified hours. After the applicant’s accident, he “was unable to return to work for a while. Once returned, he has been unable to work on full time basis. Now he works three to five hours per day”. The letter further indicates that they do not keep employment files. The applicant stated that prior to the accident he worked 8-10 hours per day.
37More troublesome was the applicant’s evidence regarding his remuneration. The applicant testified that he worked for a non-profit organization, yet this non-profit organization pays his expenses such as car insurance, cell phone and rent, which he does not include in his tax returns. Given the omission of income from his tax returns, even if the applicant provided income tax returns for the time period required under the Schedule, they are not reliable and do not demonstrate a clear picture of his income.
38After a break, I was provided with a handwritten calculation of IRB from the applicant. This was a rough calculation based on a 2014 income tax return. Given the discrepancies in the applicant’s evidence of his employment status and reported income, the calculation, which was not entered as an exhibit, is unreliable and I therefore do not given it any weight.
Second Accident – September 25, 2015
39Complicating matters further, the applicant was in a subsequent accident on September 25, 2015. The applicant indicated that the second accident aggravated his symptoms and that he did not see a difference between the first and second accident; to him they were the same. He stated that the second accident aggravated his headaches, depression and post-traumatic stress. He indicated that he was attending physiotherapy but stopped going when the respondent stopped paying him. He indicated that he did not think he recovered from the first accident when he was in the second accident.
40The respondent’s adjuster indicated that she did not receive medical records from the applicant prior to the applicant engaging in the dispute resolution process, at which point she was no longer handling the file. The applicant produced a letter dated November 9, 2016 indicating that the applicant’s 2014 tax return and St. Joseph’s Hospital Emergency Department notes were attached. There was a dispute as to whether the respondent received the letter and the attachments. In any event, even if received, the letter is dated almost two years after the accident and an intervening accident had occurred in September 2015.
41The applicant’s evidence is inconsistent. Despite the fact that all of the IE assessors noted the applicant complained of vision issues as the main reason for not being able to return to work, the applicant confirmed at the hearing that his eye complaints are not related to the accident.
Minor Injury Guideline
42I will quickly address the issue of the MIG.
43Section 3(1) of the Schedule defines a “minor injury” as “one or more of a strain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.
44The onus is on the applicant to show that his injuries fall outside of the MIG. The applicant did not argue he had pre-existing conditions that could affect his response to treatment.
45At the hearing, the applicant repeatedly indicated that the respondent denied numerous treatment requests; however, there was no evidence that the applicant sought treatment outside of the MIG. The only OCF-18 being claimed was in the amount of $71.46 for prescription medicine which was denied on the basis that the applicant had exhausted the MIG limit.
46The applicant indicated that he had been going to physiotherapy but stopped going when the respondent stopped paying. I was not provided with evidence of denials for physiotherapy.
47While the applicant did mention low back, shoulder and neck pain to some of the IE assessors, he reported no neck, shoulder, back or chest pain to Dr. Boulias, who conducted a physiatry evaluation on the applicant.
48It was unclear on what basis the applicant was claiming that his injuries were outside of the MIG (e.g., whether they were physical, psychological or both). I asked the applicant to clarify and he indicated that his injuries are outside of the MIG as a result of his psychological injuries.
49The applicant provided oral evidence that his main concern was his psychological condition as a result of the first accident, yet he confirmed that he has not sought any psychological assessments or treatment from the respondent.
50This is also inconsistent with his complaints reported to the IE assessors.
51The applicant stated that he has sleep difficulties that were not present prior to the accident. The applicant did undergo a sleep study in September 2015, which indicated that the applicant did have sleep apnea; however, the report does not mention the accident. When questioned on this point, the applicant indicated that he does not tell his doctors about the accident because he goes to the doctors to heal. This is not accurate given that many of the medical records specifically mention the accident.
52The applicant was referred to the neurology clinic at St. Joseph’s Health Centre for an assessment of his headaches and diplopia on April 16, 2015, and was seen by Dr. Dimitrakoudis. The applicant reported that he has had headaches since the accident and it is noted that the applicant has had diplopia for many years.16
53Dr. Dimitrakoudis noted that the accident sounded relatively minor and that he assumed the headaches were related to the accident but “that could potentially be an incidental issue”.
54On May 10, 2016, approximately seventeen months after the accident, the applicant was referred to a Psychiatry Clinic and was seen by Dr. Vasdev.17 Dr. Vasdev references the applicant’s two accidents. He indicates that the applicant describes himself as having mood swings, gets upset easily, has difficulty falling and maintaining sleep, has little pleasure in his day, has low energy and low appetite and difficulty concentrating. Dr. Vasdev notes the applicant has been married twice, has two children and is now separated and not in a romantic relationship.
55Dr. Vasdev diagnosed the applicant with major depressive disorder and would support him seeing a psychologist for 8-10 sessions.
56Dr. Vasdev indicates that he had been seen by a neurologist and his optometrist and no cause had been found for the applicant’s symptoms.
57The applicant was seen by Dr. Vasdev only after the second accident, on May 10, 2016, June 2, 2016 and June 23, 2016. On June 28, 2016, the applicant was discharged from his care.
58The applicant has not established, on the balance of probabilities that his injuries fall outside of the MIG. He provided inconsistent evidence with respect to his injuries. The applicant did not argue whether his injuries were caused as a result of the first accident or the second accident but only that the second accident made his injuries from the first accident worse.
59I did not find the applicant’s evidence reliable. He was combative during the hearing and his evidence was inconsistent. Even when I indicated that his answers or refusals to provide certain information was problematic he did not provide relevant information on the issues before me.
ORDER
60For the reasons outlined above, I find the following:
i) Pursuant to s. 55(2) of the Schedule, the applicant is statute barred from applying to the Tribunal for failing to attend a properly scheduled s.44 IE and on that basis, the application is dismissed;
ii) The applicant has not proven entitlement to IRBs;
iii) The applicant has not proven that his injuries fall outside of the MIG;
iv) The applicant is not entitled to a medical benefit in the amount of $71.46 for prescription medicine; and
v) The application is dismissed. In light of the dismissal, no interest is owing.
Released: October 10, 2018
Lori Marzinotto Vice Chair
Footnotes
- Exhibit 20 Joint Document Brief (“JDB”) Tab D-1
- JDB Exhibit #19 Tab B-18
- JDB Exhibit #19 Tab B-14
- JDB Exhibit #19 Tab B-15
- JDB Exhibit #19 Tab B-13
- JDB Exhibit #22 Tab D-2
- JDB Exhibit #19 Tab B-12
- JDB Exhibit #19 Tab B-17
- JDB Exhibit #19 Tab B-6
- JDB Exhibit #19 Tab B-2
- JDB Exhibit #7
- JDB Exhibit #8
- JDB Exhibit #12
- JDB Exhibit #20
- JDB Exhibit #10
- JDB Exhibit #2
- JDB Exhibit #5