17-003732 v. Royal and Sun Alliance, 2018 CanLII 39449

Date: 2018-03-16 Tribunal File Number: 17-003732/AABS Case Name: 17-003732 v Royal and Sun Alliance

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

Royal and Sun Alliance

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES

For the Applicant: Zoulifia Khassanova, Paralegal For the Respondent: Jonathan Tatner, Counsel

Written Hearing Held: December 19, 2017

OVERVIEW

1The applicant was injured in a motor vehicle accident on March 3, 2014. She applied for accident benefits to Royal and Sun Alliance (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied her claim and she applied for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefit Services.

ISSUES IN DISPUTE

2I have been asked to decide the following issues:

(i) Is the applicant precluded from proceeding with her claim for a non-earner benefit for non-compliance with the limitation period pursuant to s.56 of the Schedule?

(ii) If the answer is no, is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week, from December 19, 2014 to date and ongoing?

(iii) Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

(iv) If the answer is no, is the applicant entitled to payment for medical benefits for the following treatment plans recommended by Airport Rehab Centre:

(a) $1,998.00 for chiropractic treatment denied by the respondent on June 16, 2015; and

(b) $3,054.80 for chiropractic treatment denied by the respondent on December 19, 2014.

(v) Is the applicant entitled to payment for a medical benefit and examination expense for the following treatment plans recommended by General Med M Inc.:

(a) $3,042.24 for psychological treatment denied by the respondent on January 4, 2017; and

(b) $1,995.91 for a psychological assessment denied by the respondent on June 15, 2015.

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

(vii) Is the applicant entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice (“LAT’s Rules”)?

(viii) Is the respondent entitled to costs pursuant to LAT Rule 19?

RESULT

3For the reasons that follow, I order the following:

(i) The applicant is not precluded from proceeding with her claim for a non-earner benefit;

(ii) The applicant is not entitled to a non-earner benefit;

(iii) The applicant’s injuries are within the MIG;

(iv) Since the treatment plans exceed the MIG limit, I do not find that they are reasonable or necessary; and

(v) Neither party is entitled to costs.

PROCEDURAL ISSUE

4The respondent requested that Tab 11 of the applicant’s document brief, a document titled “Client’s Response to two Insurer Examinations (“IEs”) by Dr. Murray” be omitted from the record. The respondent argued that this document was not disclosed in compliance with the Tribunal’s Order dated September 11, 2017, as the deadline for submissions was October 13, 2017, and it was not submitted until October 16, 2017. In addition, the document is an unsigned memo and the respondent did not have the ability to cross-examine the applicant on its contents and is therefore prejudiced. Further, the applicant had the opportunity to file an affidavit to support her claim and be cross-examined at an in-person hearing and chose not to.¹

5The applicant argued that she has the right to comment on the IE reports of Dr. Murray as the reports provided incorrect information.

6I agree with the respondent that there are some fairness concerns with this document. First, the document is unsigned which poses some questions with respect to its reliability. Second, I agree with the respondent that the applicant had the opportunity to file an affidavit and be cross-examined at an in-person hearing and chose not to do so. However, since administrative tribunals are subject to less stringent rules pertaining to evidence I accept the submission of the applicant’s memo. However, I have accorded it little weight and it did not have an impact on my findings.

REASONS

(I) Is the applicant precluded from proceeding with her claim for a non-earner benefit for non-compliance with the limitation period pursuant to s.56 of the Schedule?

FACTS

7On March 3, 2014, the applicant was involved in a motor vehicle accident. She was 14 years old at the time of the accident. The applicant turned 18 on October 22, 2017.

8On October 6, 2014, the applicant submitted a disability certificate (“OCF-3”) which supported entitlement to a non-earner benefit. The OCF-3 listed the following accident-related impairments: injury of muscle and tendon of abdomen, lower back and pelvis; subluxation complex (vertebral) lumbar region.

9On December 19, 2014, the respondent sent an Explanation of Benefits (“OCF-9”) denying her claim for a non-earner benefit.

10On June 14, 2017, the applicant filed an application with the Licence Appeal Tribunal disputing her entitlement to a non-earner benefit, which was approximately six months past the deadline for disputing the benefit.

ANALYSIS

(II) Is the applicant exempt from the two year limitation period for disputing her entitlement to the non-earner benefit?

11The applicant is exempt from the two year limitation period and is not precluded from proceeding with her claim for a non-earner benefit.

12Section 56 of the Schedule requires that a mediation proceeding, evaluation, court proceeding or arbitration shall be commenced within two years after the insurer’s refusal to pay a benefit or amount claimed.²

13The respondent argues that more than two years has passed since the denial of the benefit, as the limitation period was triggered by the OCF-9 dated December 19, 2014, and the applicant did not file an application to dispute the benefit until June 14, 2017. The respondent contends that the OCF-9 was a clear denial of the applicant’s entitlement to the non-earner benefit, and it satisfied the requirement of outlining the steps for the applicant to dispute the denial and the time limits for doing so.

14The applicant maintains that she is protected by s. 6 of the Limitations Act³ which suspends a limitation period when a claim involves a minor. She argues that the limitation period does not start to run until the she reaches the age of majority. The applicant relies on the decision of the Financial Services Commission of Ontario (“FSCO”) in Moran v. Economical⁴ as authority.

15The respondent contends that the applicant is not protected by s.6 of the Limitations Act as it provides that if a minor is represented by a litigation guardian, the suspension of the limitation period does not apply. In the present case, the respondent claims the applicant was represented by a litigation guardian as the Application for Accident Benefits (“OCF-1”) was signed by both the applicant and her mother. In addition, an Authorization signed by the applicant’s mother provided authority to counsel Sergio Grillone to represent the applicant. The respondent maintains that the applicant was represented by two litigation guardians. Therefore, the limitation period applies. The respondent relied on the FSCO decision in Roman Birka and TD⁵ as authority.

16The applicant is not precluded from proceeding with her claim for a non-earner benefit for the following reasons:

17While I am not bound by FSCO decisions, I found the Moran case submitted by the applicant more compelling. In Moran, the insurer took a similar position that since the applicant was represented by a litigation guardian (“her mother”), the limitation period applied. Similar to this case, the insured’s mother submitted the application for benefits and signed a Form P and the insurer argued that these steps were comparable with that of a substitute decision maker—thus making the applicant’s mother her litigation guardian.

18The arbitrator disagreed that the mother met the definition of a litigation guardian for simply carrying out these steps. The arbitrator found that should a settlement be reached, then court approval of the settlement would be required. Unless the minor is represented by a Children’s Lawyer or someone from the Office of the Public Guardian and Trustee, the person wanting to act as a litigation guardian would be required to file an affidavit with the courts supporting that they would make decisions in the minor’s best interest.

19I do not agree that the applicant had a litigation guardian in this case at the relevant time in question.

20Black’s Law Dictionary defines a litigation guardian as “a guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.”[1]

21However, given that this is an administrative and not a civil proceeding the rules vary depending on the Tribunal. At the Licence Appeal Tribunal (“LAT”), the only step required for files dealing with minors is for a form titled “Representing Minors and Mentally Incapable Persons” to be filled out and signed by a parent, legal guardian or legal representative. This form does not outline any special oath or obligation nor does it confirm that the person signing the form is a litigation guardian. Further, there is nothing in the LAT Rules of Practice and Procedure which says that a minor must be represented by a “litigation guardian.”

22While her mother was a “legal guardian” and co-signed the OCF-1 and Authorization for legal representation, in my view, filling out an OCF-1 and applying for benefits is merely a parent taking the required steps to obtain benefits for the child. Further, filing an application disputing accident benefits is not the same as issuing a statement of claim. For example, there are many sections in the Schedule that provide greater time periods for minors to apply for certain benefits. Therefore, why should minors not be accorded with the same flexibility when it comes to disputing entitlement to those benefits.

23The purpose of the Limitations Act is to protect minors who are not capable of making decisions and appreciating the consequences of their decisions. An adult has the capacity to hire counsel and can do research on who they hire in order to ensure they have adequate representation. An adult can also give counsel instructions and grasp legal advice. A minor does not have such capacity.

24In my view, minors are especially vulnerable in cases involving accident benefits and could be taken advantage of. The purpose of the Limitations Act and the necessity for court approval of any settlements involving minors is for their protection. A lawyer gives advice. Therefore, I agree that a lawyer hired to represent someone in an accident benefits claim does not make them a litigation guardian

25I found the Birka case submitted by the respondent distinguishable as the insured applied for mediation more than two years after she attained the age of majority. She argued she had two years from attaining the age of majority to apply for any benefit and any application for benefits she made before attaining the age of majority was suspended or nullified. The arbitrator found that the applicant made this argument without authority. Further, the arbitrator stated that time periods are there for a reason, as are limitation periods for disputing benefits and commented on the clause of the Schedule where an applicant has to be 16 years old before becoming eligible for a non-earner benefit. I do not agree with the arbitrator on this issue and do not find the scenario in Birka relevant to the present case.

26For the above-noted reasons, the applicant is not precluded from proceeding with her claim for a non-earner benefit.

(III) Is the applicant entitled to a non-earner benefit?

27The applicant has not met her onus in proving, on a balance of probabilities, that she is entitled to a non-earner benefit.

28In order to qualify for a non-earner benefit, section 12 of the Schedule provides that the insured must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and not qualify for an income replacement benefit.

29The leading case with respect to proving entitlement to a non-earner benefit establishes that a claimant must be able to prove that he or she has been continuously prevented from engaging in “substantially all” activities in which they engaged in before the accident.⁶ In order to assess this, one must look at the applicant’s pre and post-accident activities over a reasonable period of time before the accident. The onus is on the applicant to establish that she meets the test for entitlement to the non-earner benefit.

30The applicant is not entitled to payment of a non-earner benefit for the following reasons.

31First, I found the evidence submitted by the applicant with respect to her pre and post-accident activities insufficient and inconsistent. For example, in the applicant’s written submissions, her representative highlights that prior to the accident, the applicant enjoyed gym class and played and coached soccer three times per week for three hours a day. According to the applicant’s representative, this activity was most important to her. Post-accident, the representative asserts the applicant can no longer play sports. The respondent argues that the representative’s submissions are not evidence. I agree. While there are references to the applicant’s inability to play sports post-accident in a few of the medical reports and records, I found credibility issues with respect to the applicant’s self-reporting of her limitations to the doctors which I will address later.

32What I found lacking was direct and corroborating evidence from the applicant that she in fact played and coached soccer three times a week for three hours a day and the duration in which she enjoyed these activities pre-accident. I cannot accept the representative’s submissions as evidence. As established in Heath, a comparison of the applicant’s pre and post-accident activities over a reasonable period of time is an essential step to proving entitlement to the benefit. Direct evidence from the applicant is instrumental in order to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident.

33In a written hearing for a non-earner benefit, this evidence could have come in the form of an affidavit sworn by the applicant, or a letter from her gym teacher at school attesting that prior to the accident the applicant frequently played and coached soccer, however, has not played post-accident. The applicant had the opportunity to file an affidavit and chose not to. I agree with the respondent that submissions are not evidence.

34The applicant submitted records in her document brief but did not explain how they are relevant to her claim. For example, she submitted her school records but did not explain what they prove. This is a critical element in a written hearing as the decision maker is left guessing with respect to the relevance of records. From reviewing the school records, it was not obvious to me what the relevance of the school records were. Therefore, I have given them little weight.

35Secondly, other than the disability certificate (“OCF-3”) dated October 3, 2014, no other medical records supported entitlement to the benefit. The only report submitted by the applicant was Dr. Ana Bodnar’s pre-screening psychological report dated November 5, 2015 and psychological assessment dated October 30, 2016. These assessments were conducted by Sarah Saeed, psychotherapist, under the supervision of Dr. Bodnar.

36In Dr. Bodnar’s assessment dated October 30, 2016, the applicant reported that prior to the accident she would wash dishes, do laundry and vacuum the house once per week. She was social with friends, played soccer and basketball and enjoyed going to the gym. Further, she had no problems with sleep, was energetic and had no cognitive issues. She reported that post-accident she could no longer do any of these activities, her sleep is poor, she has low energy and her cognitive functioning has been affected. In addition, she avoids being in a car due to passenger anxiety and she cannot sit, stand or walk for longer than an hour. Dr. Bodnar diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood which is directly as a result of the accident.

37I have given Dr. Bodnar’s psychological assessment dated October 30, 2016 less weight for the following reasons:

(i) Dr. Bodnar and Sarah Saeed did not review any records in the completion of their reports;

(ii) In the pre-screening report, Dr. Bodnar seemed more like an advocate than a neutral assessor. For example, she used language such as “this is compelling evidence that the applicant should be removed from the MIG”; Further, the pre-screening report seemed to diagnose the applicant and recommend treatment prior to the completion of the assessment, which is the purpose of the assessment;

(iii) The applicant and her mother reported to insurer examiner (“IE”) Dr. James Murray, psychologist, on March 10, 2016 and April 20, 2017 that they did not recall meeting Dr. Bodnar or her associate at any point and were not aware of the treatment plans for the psychological assessment or psychological treatment. The applicant did not dispute this fact in her initial or reply submissions and evidence;

(iv) The purpose of Dr. Bodnar’s report was to address the applicability of the MIG. The report did not mention the non-earner benefit or the test for qualifying.

38I also found the applicant’s reporting to Dr. Bodnar inconsistent. For example, in Dr. Bodnar’s pre-screening report of November 2015, the applicant reports no issues with cognitive functioning and states that her leisure, social and sports activities have been reduced because of pain. In Dr. Bodnar’s report of October 30, 2016, she reports problems with cognitive functioning and says she cannot do any of the aforementioned activities. In addition, the applicant reports that she cannot sit, walk or stand for longer than an hour. However, later in the report she acknowledges that she got a part-time job at Tim Hortons in August 2016 as a cashier and works two 4 hour shifts every weekend. In my view, working as a cashier at Tim Hortons would require standing for longer than an hour and entail a degree of physical activity. Inconsistencies in the applicant’s reporting are further reflected in the respondent’s IE reports.

39Nonetheless, the IE reports of Dr. David Mula, GP and chronic pain specialist, dated December 10, 2014, and Dr. Murray, psychologist, dated April 1, 2016, address whether the applicant is entitled to a non-earner benefit. The opinions of these physicians found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. In my view, their conclusions remain unchallenged by the medical evidence submitted by the applicant.

40In contrast to what the applicant reported to Dr. Bodnar, she informed Dr. Mula that she could cook, do light cleaning, walk and take public transit. However, she did report that she could no longer play sports, her social activities were reduced and she no longer camps or goes to temple. However, there were inconsistencies with these statements. The applicant reported to Dr. Mula that her family went to temple twice per week. On the other hand, she advised Dr. Murray that her family was not religious and would only go to temple on special occasions.

41Dr. Mula’s physical examination of the applicant revealed mildly restricted range of motion in which there was no medically supported physical restrictions. Dr. Mula diagnosed the applicant with myofascial strain of the bilateral trapezius and rhomboids and myofascial strain of the mid-back and lumbosacral area. Dr. Mula determined that the applicant did not suffer a complete inability to carry on a normal life as a result of injuries sustained in the accident. I have not been given any other evidence of a physical impairment to doubt Dr. Mula’s opinion.

42There were also contradictions in what was reported to Dr. Murray. Dr. Bodnar’s report indicates that the applicant has passenger anxiety and avoids being in a car, whereas to Dr. Murray she reported that she does not avoid being a passenger in a car and obtained her G1 driver’s licence in January 2016. In addition, she reported to Dr. Murray that she socializes with friends and family, goes shopping, going to movies and reported no issues with respect to her mood or emotional issues. The psychological tests administered by Dr. Murray found no psychological impairment. Dr. Murray opined that the applicant did not suffer a complete inability to carry on a normal life from a psychological perspective and found no impairment. I found Dr. Murray’s opinion more compelling as he is a registered psychologist, met with the applicant personally and reviewed documents in preparation of his report.

43For the above-noted reasons, the applicant is not entitled to a non-earner benefit.

(IV) Do the applicant’s injuries fall within the MIG?

44I find the applicant’s injuries fall within the MIG.

45Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

46Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit.

47The onus is on the applicant to prove that her injuries are not minor.

48The respondent has approved medical treatment up to the MIG limit of $3,500.00.

49The applicant’s injuries fall within the MIG for the following reasons:

50First, every physical diagnosis made by the doctors who treated or assessed the applicant list minor injuries. For example, all three OCF-3s submitted by Airport Rehab Centre on behalf of the applicant list soft tissue injuries. The applicant submitted the clinical notes and records (CNRs) of Dr. Ahluwalia, her family doctor. In her submissions, she refers to five entries: March 10, 2014; April 16, 2014, December 2, 2016 and October 6, 2017, where she complains of back pain and strain as a result of the accident. While these entries refer to back pain, in my view this is not compelling medical evidence that her injuries are more than soft tissue and that she should be removed from the MIG. Further, there is no reference to emotional, cognitive or psychological symptoms in Dr. Ahluwalia’s CNRs.

51Further, no x-rays or other medical evidence was submitted to support a physical impairment that would remove the applicant from the MIG. Evidence of soft tissue injuries are also confirmed in the IE report of Dr. Mula dated December 10, 2014, which has not been refuted by any of the medical evidence.

52Second, there was no evidence that the applicant had of any pre-existing injuries that would prevent her from achieving maximum medical recovery within the MIG.

53The applicant argued that she should be removed from the MIG because she suffers from chronic pain and sustained a psychological impairment as a result of the accident. However, there was no evidence submitted to support a chronic pain diagnosis and, for the reasons already mentioned, I found credibility issues with respect to Dr. Bodnar’s reports.

54The applicant submitted various case law, however, did not explain the relevance of the cases to her claim. For example, she submitted Abyan v. Sovereign General Insurance Company, FSCO A16-003657 in which the arbitrator found that s.18(2) of the Schedule with respect to the MIG is unconstitutional. The applicant did not make any argument with respect to the application of the MIG being unconstitutional pertaining to the facts involving her dispute. Therefore, I have given this decision little consideration.

55For the above-noted reasons, I find that the applicant sustained a minor injury.

56Since I have determined that the applicant’s injuries are minor, I need not determine whether the treatment plans are reasonable or necessary, as the applicant has incurred $3,429.80 of the MIG limit. The treatment plans in dispute are above the $70.20 left within the policy limit. Therefore, I do not find that they are reasonable and necessary.

57The applicant is not entitled to interest.

COSTS

58Both parties requested costs in their submissions in accordance with LAT Rule 19.1, which provides that a party may request the Tribunal to order costs where a party believes that the other party has acted unreasonably, frivolously or vexatiously, or in bad faith.

(I) The applicant’s request for Costs:

59The applicant requested costs on the basis that the respondent’s submissions were in non-compliance with Adjudicator Norris’ Order dated September 11, 2017. The respondent’s submissions did not comply with the 15 page limit as they were not double spaced on the first and last page and the font was not 12 point. While I encourage compliance with the Tribunal’s orders, I do not find this small formatting infraction to be of such significance to meet the strict test of unreasonable, frivolous or vexatious conduct. Therefore, the applicant’s request for costs is dismissed.

60The applicant also argued that she is entitled to costs as the respondent unreasonably withheld benefits. In my view, the applicant confused costs with a request for an award under Ontario Regulation 664, R.R.O. 1990 (“O.Reg.664”). O. Reg. 664 provides that if the Tribunal finds that the respondent unreasonably withheld or delayed payment of benefits, it may grant an award of up to 50% of the amount of the benefits claimed. The applicant did not address why the respondent unreasonably withheld payment of benefits in her submissions. In light of my decision on the issues in dispute, I do not find an award is warranted.

(II) The respondent’s request for Costs:

61The respondent also requested costs, on the basis that the applicant’s submissions did not comply with the 15 page limit outlined in Adjudicator Norris’ order. A review of the applicant’s submissions show that she was half a page over the size limit. I do not feel the respondent demonstrated how they were prejudiced by this or how the applicant’s conduct meets the definition of frivolous, vexatious or unreasonable.

62The respondent also argued that it should be granted costs as the applicant’s submissions on the constitutional matter are frivolous and she initiated the LAT dispute without any reasonable basis for meeting the requisite eligibility tests. Costs at the LAT are not meant to be punitive and punish the unsuccessful party in a dispute. I do not feel that the respondent established how the applicant’s conduct meets the threshold for costs. Therefore, the respondent’s request for costs is dismissed.

CONCLUSION

(i) The applicant is not precluded from proceeding with her claim for a non-earner benefit.

(ii) The applicant is not entitled to a non-earner benefit.

(iii) The applicant’s injuries are within the MIG.

(iv) Since I have determined that the applicant sustained a minor injury, I need not determine whether the treatment plans are reasonable and necessary.

(v) Neither party is entitled to costs.

Footnotes

1. 1An in-person hearing was initially scheduled for the purpose of cross-examining the applicant on her affidavit. An affidavit was not filed by the applicant. The parties agreed at the case conference that if the applicant did not file an affidavit then the entire hearing would be dealt with in writing.
2. 2O.Reg. 34/10, s.56.
3. 3Limitations Act, 2002. S.O. 2002 c.24 Sch. B, s.6
4. 4Moran v. Economical Mutual Insurance Company, FSCO A13-011759
5. 5Roman Birka and TD Home and Auto Insurance, FSCO A11-003595
6. 6Heath v. Economical, 2009 ONCA 391, para 32.