17-002232 v Northbridge Insurance Company, 2018 CanLII 81884

Date: 2018-05-28

Tribunal File Number: 17-002232/AABS

Case Name: 17-002232 v Northbridge 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

Applicant

and

Northbridge Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Respondent: Amanda Lennox, Counsel

For the Applicant: R. N., Self-represented assisted by R. R.

Interpreter: Reginald Coilparmpil (Tamil)

Heard: By a combination of written submissions due December 18, 2017, and in-person hearing on January 16, 2018.

OVERVIEW

1On April 3, 2014, [the applicant]¹ was injured in an accident while driving a tractor-trailer on a US highway. [The applicant] was initially trapped in the vehicle, and airlifted to a local hospital. Photographs show extensive damage to the truck yet [the applicant] escaped with relatively minor injuries. Hospital notes record “no definitive trauma injuries have been identified,” although he did complain of left knee pain and some chest wall tenderness which was reproducible by palpation.² The hospital determined he had a bruise to his heart and had concern of a heart blockage, and so he underwent cardiac surgery with a stent being placed. Two and a half days after the accident, [the applicant] was discharged, but with a bill from the hospital of $117,346.13 in US Dollars (USD), equivalent to $168,297.05 Canadian Dollars (CAD).³

2He applied for insurance benefits from Northbridge under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”), including payment of the hospital bill. Northbridge paid various expenses and then made a $45,121.27 (CAD) payment to the hospital, which exhausted the remaining funds under the medical rehabilitation portion of the policy.

3Before me is [the applicant]’s Appeal to this Tribunal for an order requiring Northbridge to pay (1) the remaining $123,175.00 CAD hospital bill balance, (2) $1,690 for chiropractic services, and (3) an Income Replacement Benefit (“IRB”), all plus interest. Northbridge seeks its costs for [the applicant]’s failure to attend the first case conference.

4The matter was heard by a combination of the parties’ written submissions followed by [the applicant]’s testimony before me. Surveillance videos were shown during testimony.⁴

5After reviewing the evidence, I find [the applicant] is not entitled to the remaining hospital bill, chiropractic services or to payment of an IRB. Northbridge is not entitled to its costs.

ISSUES

6The parties agreed at the hearing that the issues to be decided are:

1. Is the applicant entitled to receive a medical benefit of $123,175.00 (CAD) for hospital expenses incurred while in the [United States]?

2. Is the applicant entitled to receive a medical benefit of $1,690 for chiropractic services recommended by Dr. H. Grigoropoulos in a plan submitted on June 10, 2015, and denied on August 10, 2015?

3. Is the applicant entitled to payment of an income replacement benefit in the amount of $400.00 per week from April 10, 2014 to date and ongoing?

4. Is the Applicant entitled to interest for the overdue payment of benefits?

5. Is the respondent entitled to costs under Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure as a result of the applicant’s failure to attend the first case conferences?

RESULT

7[The applicant] has not proven his entitlement to the medical expenses (Issues 1 & 2) or the IRB (Issue 3), and thus no interest is due (Issue 4). Northbridge is not entitled to the costs related to [the applicant].’s non-appearances at the case conferences (Issue 5).

LAW AND ANALYSIS

Is [the applicant] entitled to payment for the remaining hospital bill or $1,690 for chiropractic services?

8I will address [the applicant]’s entitlement to payment for the $123,175.00 (CAD) balance of the hospital bill and the $1,690 for chiropractic services together, as they are governed by the same provisions of the Schedule.

The positions of the parties

9[The applicant]’s submits that both the chiropractic services and hospital bill are reasonable and necessary expenses directly related to the accident, and thus should be paid.

10Northbridge does not dispute that the treatment is reasonable and necessary, although at times, it inferred otherwise. Northbridge’s real argument is that while the treatment is reasonable and necessary, Northbridge isn’t required to pay for it, because Northbridge has paid all amounts available under the policy for medical benefits. In other words, the maximum amount available for medical treatment is up to $50,000, and that Northbridge has paid the full $50,000, so there is nothing left to pay – [the applicant] reached the medical and rehabilitation limits.⁵

The Law

11According to section 14 and 15 of the Schedule, an insurer is liable for medical benefits that are “reasonable and necessary” as a result of the accident. Section 18 provides that the benefits, however, are not unlimited. Section 18 provides three levels of payment limits depending on the type of impairment – (1) up to $3,500 for injuries defined by the Schedule as “minor”, (2) up to $50,000 for injuries that are not defined as either “minor” or “catastrophic”, and (3) up to $1,000,000 for injuries defined by the Schedule as “catastrophic”.

12[The applicant]’s injuries are more than “minor” injuries, but not catastrophic. Thus, I find that the limit of medical benefit payment that applies to [the applicant] is the middle category, which is up to $50,000. I must now determine if the expenses are reasonable and necessary, and if so, if there are any unused funds under the policy.

Analysis

13I find that both medical expenses are “reasonable and necessary” as Northbridge admits it. Additionally, cardiologist Dr. Robert Myer prepared a report at the request of Northbridge and concluded that the cardiac procedure was accident related. As for the chiropractic treatment, Northbridge’s initial response was not to approve the treatment request on the grounds that the payment limits had been reached.

14Thus, I must determine if they are payable in light of the $50,000 limit.

15Northbridge submits it has paid the full $50,000 available for medical benefits, and I agree. Mr. N did not dispute Northbridge’s accounting regarding funds paid on the policy or regarding hospital bill. Northbridge submits it paid $4,878.73 in medical benefits,⁶ and then the remainder - $45,121.27 (CAD) - to the hospital.

16The hospital bill was $117,346.13 in US Dollars (USD), which was equivalent to $168,297.05 Canadian Dollars (CAD). OHIP paid $800.00.⁷ After Northbridge’s $45,121.27 (CAD) payment, a balance of $123,175.00 CAD remains.

17While I do find that the balance of the hospital bill and chiropractic treatment are “reasonable and necessary,” I find that the medical benefit available under this policy have been fully paid. Accordingly, [the applicant] is not entitled to further payment from Northbridge for the hospital bill and chiropractic treatment (Issues 1 & 2).

Is [the applicant] entitled to payment of an IRB in the $400.00 per month?

The positions of the parties

18Mr. N submitted that as a result of the accident, he was unable to work for 1.5 years and was without income. After that, once in a while, he works a part-time assignment, but recently he has had dizziness, and has not been working. He noted that this was a severe accident, he had cardiac surgery, and ongoing pain.

19Northbridge disputed the IRB on several grounds, arguing (1) [the applicant] was able to work, (2) surveillance shows that [the applicant] was actually working, (3) even if he could not work, he has not provided sufficient documentation to calculate an IRB, and (4) his post-accident income should be deducted from any IRB that might be payable – but again insufficient documentation has been provided.

The Law

20Section 5 and 6 of the Schedule provides that after the first week of the disability, an IRB of up to $400 per week is payable for the first 104 weeks after the accident related disability if the insured person suffers “a substantial inability to perform the essential tasks” of the person’s employment at the time of the accident. After 104 weeks, an IRB is payable if the insured person can meet a stricter test of “a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

21Section 11 provides that a person receiving an IRB may return to work at any time during the first 104 weeks without affecting his entitlement to resume receiving the IRB as a result of the accident, if he is unable to continue the employment.

22As I find, for the reasons below, that [the applicant] does not meet that “pre-104” test, I do not address the stricter test for benefits after 104 weeks of disability.

Facts

23At the time of the accident, [the applicant] was 55 years old, employed as a long-haul truck driver, only occasionally being required to unload his truck.

24He spent two and a half days in the hospital. [The applicant] testified that he was told upon his discharge not to do any work for two weeks or until the pain goes down and no driving until cleared by his family doctor. He also testified that his family doctor advised an X-ray confirmed that his pinky finger had been broken, and he states it is not straight, but better. He also had pain in both legs, although the parties disputed if the hospital records only record right leg pain. The discharge documents – what appear to be standardized forms – show he could return to work in 24 hours; he does not recall being told that. Those same forms advises no strenuous activity for two weeks.

25Neither party produced the family doctor records. [The applicant] admitted that Northbridge requested them several times. [The applicant] also testified that his does not have any reports that show he has ongoing impairments, and answered he wasn’t asked for any and does not have any, commenting ‘only if asked can I give them.’

26[The applicant] sought an IRB. Northbridge believed more information was needed to calculate the IRB, and hired Williams & Partners, Forensic Accountants, to assist. Ms. Taylor’s affidavit shows Williams wrote to [the applicant] nine letters between June and December of 2014 requesting income documents. At the time, [the applicant] was represented by counsel. During cross-examination, [the applicant] acknowledged that he received these letters.

27On February 17, 2015 – approximately a year after the accident - the applicant’s then-counsel wrote to Northbridge advising that the IRB claim “is not being advanced on behalf of Mr. [N]” and “Mr. [N] is not claiming Income Replacement [sic] benefit.”

28Based on multiple IE assessment reports dated April 7, 2015, Northbridge refused to pay the IRB. I note the following:

1. The chiropractic IE assessor had validity concerns, while noting limited ROM in the left shoulder and hips, bilaterally, and cervical and lumber spine.

2. The psychological IE assessor, Dr. Alcock, found that [the applicant] suffers from symptoms of mild depression and anxiety related in part about his financial problems (i.e. the hospital bill) and self-reported in-ability to work. His prognosis is good, and the symptoms don’t interfere with his ability to work. Diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Mild.” Dr. Alcock noted that he attended physical therapy four times a week, now down to two times a week.

3. The orthopaedic IE assessor noted [the applicant] reported neck, low back and right knee pain, but he could not find an orthopaedic impairment, injury or disability on examination. He also noted some discrepancies and multiple pain behaviors. [The applicant] advised he tried to return to work for 1 day.

29On March 3, 2017, Northbridge sent a letter to [the applicant]’s counsel stating it was closing its file as the medical limit has been exhausted and [the applicant] was not pursuing an IRB.

30On November 10, 2017, [the applicant] emailed this Tribunal a Notice of Assessment of 2013, a Tax Return Summary for 2014, and a Tax Assessment for 2015.⁸ Northbridge contends that it still cannot calculate an IRB with the limited information.

Surveillance Evidence

31Several times during the hearing, [the applicant] stated with slight variations that he did not work for a year and half following the accident, and only had occasional part-time jobs since that time. He claimed he can only sit for 4 hours, but then needs to rest. He made such statements during the opening statements, again during his testimony under oath, and then during cross-examination. [The applicant] made similar statements to the IE assessors about very limited post-accident employment activity.

32During his cross-examination, Northbridge played surveillance videos which showed otherwise. The videos showed [the applicant] driving tractor-trailers on several long-haul trips from Toronto to the US, while working for several different companies. Regarding the February 21, 2015 video, [the applicant] initially contended that he wasn’t a driver but just sat in the truck with a friend. He later claimed he didn’t say he didn’t drive, but that he just was a co-driver due to his limitations, with his friend in the back. Yet, in all the videos, it was clear that no other person was with him in the truck.

33To his credit, [the applicant] ultimately acknowledged “the video is true.” He confirmed – contrary to his prior testimony – that in 2015 he started his own transportation business which is incorporated, with one client. He typically works 3 of 4 weeks a month, regularly driving from Canada to various locations in the US including Texas and California. While he may drive for 4 or 5 hours at a time, after a break, he continues on. He maintained, however, that he is entitled to an IRB and he’s in debt for more than $120,000.

Analysis

34The evidence leaves little doubt that as of February 2015 – less than a year after the accident – [the applicant] was working near full-time as a tracker-trailer driver. Clearly, the surveillance evidence and [the applicant]’s own testimony force that conclusion, which is further supported by the insurer’s IEs.

35For the period from the accident until February 2015, while the evidence is not as clear, I also find, based on a balance of probabilities, that [the applicant] has not established his entitlement to an IRB, for several reasons that follow.

36I find that [the applicant] could not – or should not – work in the days following the accident. The discharge instructions⁹ advise no work for several days, but the Schedule provides a one-week waiting period after the accident during which an IRB is not payable. I also accept his testimony that he was instructed at the hospital not to perform strenuous activity for two to perhaps three weeks after the accident, given his testimony is supported by the obvious invasive nature of the surgery. Likewise, even if driving is not technically strenuous activity, I would accept that a reasonable person would not drive, alone, for extended trips, besides being in the US were he does not have OHIP coverage.

37However, from that initial period forward, given a lack of supporting medical evidence, and my reluctance to rely on [the applicant]’s testimony given the gap between [the applicant]’s initial testimony and the surveillance video, I do not put a lot of weight into [the applicant]’s testimony about his inability to work following the accident.

38Thus, after the one week waiting period, I would conclude [the applicant] is entitled to an IRB of two weeks (April 10 to April 24), except that he has not established quantum for that period, or beyond.

Is Northbridge entitled to costs in the amount of $200 for failure to attend the case conference or in this matter in general?

39Costs are governed by Rule 19 of the LAT Rules of Practice and Procedure, Version 1 (April 1, 2016) which only allow costs upon a showing of “unreasonably, frivolously, vexatiously, or in bad faith” actions in this proceeding. Northbridge contends that [the applicant] failed to attend the first two case conferences. [The applicant] submits that he was working in the US during the June 29, 2017 conference, and his admissions during testimony lead the same conclusion for the prior conference. Given the totality of the circumstances, including that [the applicant] participated in this proceeding through the use of an interpreter, I find that while [the applicant] should have sought an adjournment, and even acted negligently, yet I do not find that the high standard of Rule 19 has been established.

40Likewise, while Northbridge’s submissions briefly mentions in its conclusion that it is entitled to its costs of the entire action, it made no further submission on that point, and it’s not listed as an issue in Adjudicator Marzinotto’s October 27, 2017 Order, I decline to issue costs on that point. Additionally, while [the applicant] clearly overstated his case for an IRB, he ultimately acknowledged the reality of the evidence before him. I do find his initial positions troubling, but he appeared to be overwhelmed by the $123,175 unpaid balance of the hospital bill, and confused by the provisions of the Schedule – I do not find he acted vexatiously or in bad faith.

ORDER

41Pursuant to the authority vested in this Tribunal under the provisions of the Insurance Act, I order that [the applicant] is not entitled to payment for the $123,175.00 (CAD) balance of the hospital bill, the $1,690.00 for chiropractic services, or an Income Replacement Benefit. Neither party is entitled to costs. The application is dismissed.

Footnotes

1. 1The Tribunal anonymizes AABS decisions to protect the privacy of injured persons. To assist that process, I have abbreviated names in the decision. At times, I will refer to both Mr. N and Northbridge as “the parties.”
2. 2See “General History and Physical Examination – Cardiology” report by William B. Haynos, MD, dated April 3, 2014, attached to Exhibit 3, submitted by Mr. N.
3. 3The records include charges for the ambulance – apparently the airlift – of $19,959.00 and $12,313.00.
4. 4Mr. N was assisted by his daughter at the hearing. At earlier stages of this process he was represented, including by a law firm and most recently, from August 8, 2017 until January 11, 2018, a paralegal.
5. 5See Written Submission of Northbridge, at page 3. The submission also states “benefits for amounts over the non-catastrophic impairment limits are not reasonable and necessary“. Given the IE assessor concluded that cardiac procedure was temporally related and counsel’s statements at the hearing, I conclude that Northbridge is really claiming it’s not payable due to that fact that that that portion of the policy is exhausted.
6. 6Exhibit 6, Tab 3(E), Northbridge June 11, 2015 letter. Neither party pointed to me an accounting of on what those funds were expended. Northbridge also paid $650.09 to Mr. N for replacement clothing, but it appears that amount was not be counted against the $50,000 limit for medical benefits.
7. 7Per Exhibit 3, Letter of the applicant’s daughter
8. 8These documents and correspondence are hearing Exhibit 1, and also Tab I to the Affidavit of Penelope Taylor.
9. 9Exhibit 6, Document Brief of the respondent, Tab 6(A) – Discharge Instructions, state “You may return to work in 24 hours” (page 2), but state “Activity: no strenuous activity for 2 weeks.”