17-003553 v Certas Direct Insurance Company, 2018 CanLII 76695

Licence Appeal Tribunal

Date: 2018-05-28 Tribunal File Number: 17-003553/AABS Case Name: 17-003553 v Certas Direct Insurance Company

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:

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Khizer Anwar

APPEARANCES:

For the Applicant: Lisa Bishop, counsel for the Applicant For the Respondent: Brett Kodak, counsel for the Respondent

Heard in Writing: November 6, 2017

OVERVIEW

1[The applicant] was injured in an automobile accident on June 27, 2015 ("the accident"), and sought benefits from her auto insurer ("the respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 ("Schedule").¹

2The applicant requested payment of income replacement benefits (IRBs) and funding for numerous medical and rehabilitation benefits, via treatment and assessment plans ("OCF-18"). The respondent denied funding for all the requests, as it held that the applicant was not entitled to the IRBs and her other requests for funding were not reasonable and necessary.

3The applicant disagreed with the respondent's denials and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

4The parties participated in a case conference but were unable to resolve the issues in dispute. However, after filing the hearing materials, the applicant's representative advised the Tribunal via written correspondence that a resolution on all medical and rehabilitation benefits had been reached by the parties. Hence, it is only the unresolved issues listed below that I will be deliberating in this hearing.

ISSUES IN DISPUTE

5The issues in dispute identified by the parties via correspondence after filing the hearing materials and to be decided are:

1. Is the applicant entitled to receive an income replacement benefit in the amount of $174.64 per week for the period of November 12, 2015 to March 17, 2017?
2. Is the applicant liable to repay the respondent $474.02 for an overpayment to the income replacement benefits paid during the period July 4, 2015 to September 18, 2015?
3. Is the respondent liable to pay an award under Ontario Regulation 664 of the Insurance Act because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

6For reasons to follow, I find that:

1. The applicant is not entitled to the income replacement benefits;
2. The applicant is not liable to repay the respondent;
3. The respondent is not liable to pay an award under O. Reg 664/10; and
4. The applicant is not entitled to interest.

EVIDENCE & ANALYSIS

ISSUE # 1:

Is the applicant entitled to payment of income replacement benefits in the amount of $174.64 per week from November 12, 2015 to March 17, 2017?

THE LAW

7Pursuant to section 5 of the Schedule, in order to prove entitlement to an income replacement benefit, the insured person must satisfy that due to an impairment sustained as a result of an accident, the insured person suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.²

A. THE APPLICANT'S POSITION

8The applicant submits that she is entitled to payment of income replacement benefits in the amount of $174.64 per week, for the time period of November 12, 2015 to March 17, 2017.

9According to the applicant, the respondent made payments for income replacement benefits after the accident in the amount of $174.64 until she returned to her pre-accident employment as a personal support worker on August 31, 2015. The respondent stopped paying IRBs from that date onwards.

10The applicant submits that she again stopped engaging in her employment as of November 12, 2015, as she was substantially unable to complete the essential tasks of her employment. The applicant states that the respondent has failed to provide a written denial upon which it can rely and in the absence of same, the respondent is obligated to make payments for IRBs to her.

11The applicant contends that in the alternative, should I find there to be overpayment of the benefits, the amount for it should simply be subtracted from the award of IRBs, which amounts to $11,700.88 in total.

Evidence

12The applicant relies on the clinical notes and records (CNRs) and expert reports of the following medical practitioners to support her claim for entitlement to IRBs:

1. Dr. Lyons, family physician
2. Dr. Mills, Psychologist
3. Dr. Efala, orthopaedic surgeon

Dr. Lyons

13With respect to Dr. Lyons, the applicant refers to a specific entry in his CNRs, dated November 12, 2015, as evidence of:

a) her inability to work due to low back pain that is aggravated by the work she does; and; b) the day she stopped working again.

Dr. Mills

14Dr. Mills, a psychologist, assessed the applicant on April 19, 2016 and May 13, 2016. Based on the results and findings of the psychological tests and clinical interview administered by him, Dr. Mills diagnosed the applicant with major depressive disorder, with anxious distress and specific phobia, situational type (motor vehicle).

15He opined that the applicant suffers from psychological impairment as a direct result of the accident, and her physical pain impedes her daily activities and her ability to work. Dr. Mills recommended vocational assessment in order to assist the applicant in re-entering the workforce, as she expressed a desire to resume gainful employment.

Dr. Efala

16Dr. Efala, an orthopaedic surgeon, assessed the applicant on September 27, 2016. At the time of assessment, the applicant presented with complaints of back pain, neck pain, right knee pain and difficulty sleeping. Dr. Efala also noted arthritis of joints as one of the applicant's pre-existing medical conditions amongst others.

17Based on his examination, Dr. Efala diagnosed the applicant with:

a) post-traumatic cervical and lumbar spine dysfunction with musculo-ligamentous injury; b) bilateral hand numbness, not yet diagnosed, and; c) new onset right knee pain.

18With respect to the applicant's capacity and ability to engage in her employment, Dr. Efala noted that at the time of the assessment, the applicant was engaged in the same job as she was prior to the accident, that is, working as a personal support worker (PSW) at [ ] for 20 hours per week and at [ ] for three 12 hour night shifts with limitations in heavy carrying, heavy lifting, and prolonged driving.

19Dr. Efala concluded that due to the functional abilities and physical demands of the applicant's work as a PSW, she suffers from substantial inability to perform the essential tasks of her employment.

B. THE RESPONDENT'S POSITION

20The respondent's argument with respect to payment of IRBs to the applicant is three fold:

a. there is an overpayment of the benefit to the applicant, which must be repaid by the applicant needs to repay to the respondent (separate issue in dispute to be determined separately); b. the applicant is not entitled to IRBs, and it is not possible to quantify the amount of IRBs the applicant would be entitled to; and c. the accident occurred in the course of the applicant's employment, as the applicant's family physician completed a WSIB functional abilities form, dated July 23, 2015.

21I will solely be considering the respondent's position regarding the applicant's entitlement to the benefits in this section of my analysis.

22The respondent argues that the applicant has not provided documentation and/or reports that would show that she meets the substantial inability test post August 31, 2015. In the alternative, the respondent states that even if the applicant is entitled to IRBs, the applicant has not introduced any evidence and/or provided documentation detailing her post-accident income, such as T4s and income tax records, as requested by the respondent in its case conference summary. As a result, it is not possible to quantify her income replacement benefit.

FINDING

23For reasons to follow, on a balance of probabilities, I find that the applicant has failed to convince me that as a result of the accident, she suffers from substantial inability to perform the essential tasks of her employment. Therefore, I find that the applicant is not entitled to income replacement benefits in the amount of $174.64 per week from November 12, 2015 to March 17, 2017.

24In my opinion, the applicant's claim for IRBs fails because the evidence:

a) suggests that she was engaged in the majority of her re-employment activities during the time period she is claiming IRBs for, and; b) does not clarify the applicant's essential tasks of employment and whether she is in fact unable to substantially engage in them, despite continuing to work in a modified capacity.

25Firstly, multiple entries in Dr. Lyons' CNRs during the time period of entitlement refer to and/or recommend modified work duties for the applicant. For example, during the applicant's visit on November 12, 2015, Dr. Lyons recommended that the applicant seek modified work duties. Thereafter, the applicant returned to Dr. Lyons on November 26, 2015 with pain complaints and was advised to continue with modified work duties and physiotherapy. The entry of January 7, 2016 notes reduced range of motion and myofascial low back pain, and recommends that the applicant continue with physiotherapy and increase the workload in modified form.

26These entries don't speak to whether the applicant was completely off work or substantially unable to perform the essential tasks of her employment, as submitted by the applicant. They only highlight the fact that the applicant had pain complaints, was recommended to engage in modified work duties and was possibly doing so, as evident from the entries recommending that she "continues" with modified work.

27Secondly, the evidence suggests that the applicant was engaging in her pre-accident employment in some modified capacity during the time period she is claiming IRBs for. For example, Dr. Efala's orthopaedic assessment report commissioned by the applicant, dated September 27, 2016, mentions that at the time of the assessment, the applicant was engaged in her pre-accident employment in some capacity.

28However, in her submissions, the applicant fails to note the extent and nature of the modified work duties she engaged in and provides no evidence relating to modified duties. This lack of evidence prevents me from determining whether the applicant suffers from substantial inability to engage in the essential tasks of her pre-accident employment, despite continuing to work.

29The evidence further does not delineate the essential tasks of the applicant's employment – for example, are they standing, walking, carrying, lifting and driving, or are they heavy lifting, heavy carrying and prolonged driving. In addition, I'm unable to determine the extent and nature of her modified duties and how they align with the essential tasks of her employment.

30I find that there are too many gaps in the information due to which I'm unable to determine for certain that notwithstanding her modified duties, the applicant suffers from substantial inability to engage in the essential tasks of her pre-accident employment.

31Based on the evidence before me then, I find that, on a balance of probabilities, the applicant has failed to meet her onus. As a result, I find that the applicant is not entitled to payment of income replacement benefits.

ISSUE # 2:

Is the applicant liable to repay the respondent $474.02 plus interest from September 24, 2015 to date, for an overpayment to the income replacement benefits paid during the period July 4, 2015 to September 8, 2015?

THE LAW

32Pursuant to s. 52(1), a person is liable to repay to the insurer, any benefit described in this Regulation that is paid to the person as a result of:

a) an error on the part of the insurer, the insured person or any other person, or; b) as a result of wilful misrepresentation or fraud.

33Section 51(2) deals with the insurer's responsibility to provide notice to the person its seeking repayment from and specifies that the notice from the insurer shall include the amount that is required to be repaid.

34Section 51(3) stipulates that the insurer must give the notice under subsection (2) within 12 months after the payment of the amount that is to be repaid; otherwise the person responsible for repayment ceases to be liable unless the initial payment was obtained as a result of wilful misrepresentation or fraud.³

A. POSITION OF THE PARTIES

35The applicant argues that the respondent did not make payments for IRBs beyond August 11, 2015. According to the applicant, she advised the respondent about these missing payments in the same letter the respondent was advised about the applicant's return to work, dated September 2, 2015.

36The applicant does not provide any evidence of alleged non-payments by the respondent and unequivocally denies overpayment of the benefits, as argued by the respondent.

37The respondent contends that IRBs were paid to the applicant until September 18, 2015, and not until August 11, 2015, as argued by the applicant. Since the stoppage date of the payment of the benefit was determined to be August 31, 2015, and is not in dispute, the respondent concludes there is an overpayment in the amount of $474.02 to the applicant.

38The respondent refers to two notices through which it notified the applicant of the overpayment: a) n explanation of benefits (OCF-9), dated September 24, 2015; and b) a follow up letter, dated December 31, 2015.

FINDING

39In order to be successful, the respondent, on a balance of probabilities, must satisfy me, that:

a) the benefit was overpaid to the applicant in error on part of the insurer; and b) the respondent provided the applicant with a notice within the 12 months after the payment of the amount that is to be repaid and that the notice contained the amount that is required to be repaid.

40However, the case at hand is distinguishable, as the facts remain in dispute; that is, whether the applicant did in fact receive any payments between August 31, 2015 and September 18, 2015. As a result, I must first determine whether:

a) the payments were indeed advanced to the applicant; and b) that the applicant was in fact enriched by these payments, that is, she in fact received the payments.

41Neither party has provided evidence to support their respective positions in relation to the last payment advanced or received. While the two notices provided by the respondent were complete as per s. 51 of the Schedule, I am still left with deliberating a question of facts on insufficient evidence. Thus, in order to make any determination on the facts, I am left having to speculate.

42Since the respondent bears the onus to prove on a balance of probabilities that there has been an overpayment, I find that the respondent has failed to convince me that payments were advanced until September 18, 2015, and reached the applicant successfully.

43As a result, I find that the applicant is not liable to repay the respondent $474.02 for an overpayment on the income replacement benefits.

ISSUE # 3:

Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

44Since I find that the applicant is not entitled to income replacement benefits, the respondent is not liable to pay an award under Regulation 664.

ISSUE # 4:

Is the applicant entitled to Interest on overdue payments?

45Since I find that the IRBs are not payable, the applicant is not entitled to any interest.

CONCLUSION

46In light of foregoing, I find that:

1. The applicant is not entitled to income replacement benefits in the amount of $174.64 per week.
2. The applicant is not liable to repay the respondent $474.02 for an overpayment to the income replacement benefits.
3. The respondent is not liable to pay an award under the Ontario Regulation 664 of the Insurance Act.
4. The applicant is not entitled to interest.

ORDER

47Both the applicant's appeal and the respondent's claim for repayment are dismissed

Released: May 29, 2018

____________________

Khizer Anwar, Adjudicator

Footnotes

1. 1O.Reg 34/10
2. 2Ibid
3. 3Ibid.