Tribunal File Number: 17-006504/AABS
Case Name: 17-006504 v Certas Home and Auto Insurance Company
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:
S.H.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: Laurence M. Levine
Counsel for the Respondent: Shelby Chung
Written Hearing on: May 28, 2018
OVERVIEW
1The applicant, S.H., was injured in an automobile accident on January 10, 2015 and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2S.H. received various medical benefits from Certas as well as an income replacement benefit (IRB) in the amount of $400 per week for a period of 44 weeks. The income replacement benefit was suspended by Certas on January 26, 2016 on the basis of s. 44 Insurer’s Examinations (IE) that determined S.H. no longer met the criteria for an IRB. S.H. disagreed with Certas’ decision to suspend her IRB and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for reinstatement of the IRB.
3The parties participated in a case conference but were unable to resolve the issue in dispute, and proceeded to this hearing.
ISSUES TO BE DECIDED
4The following are the issues to be decided, as per the Case Conference Order of Adjudicator Sharma, dated March 16, 2018:
i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400 from January 27, 2016 onwards?
ii. Is the applicant entitled to interest on the overdue payment of benefits?
5In submissions for this hearing, Certas raised a third issue that was not contained in the Case Conference Order but directly pertains to it: Did the applicant fail to comply with the production Orders of Adjudicator Sharma issued January 18, 2018 and March 16, 2018?
RESULT
6I find that S.H. is not entitled to receive a weekly income replacement benefit in the amount of $400 for the period in dispute. As no IRB is payable, S.H. is not entitled to interest.
ANALYSIS
Is S.H. entitled to reinstatement of her income replacement benefit?
7No. I find that S.H. is not entitled to reinstatement of income replacement benefits for the period in dispute, as she has not provided compelling evidence that she cannot perform the essential tasks of her employment and she has not complied with multiple orders from the Tribunal to produce relevant documentation.
8Entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(2)(b) states that an IRB is not payable after 104 weeks unless the insured suffers a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. This inquiry is divided into two steps: (1) what are the essential tasks of employment? and, (2) is the insured substantially unable to perform the essential tasks? The onus to prove entitlement rests with the insured.
S.H.’s non-compliance with Tribunal Orders
9S.H. has the onus to prove her case. Despite several orders from the Tribunal directing S.H. to produce certain documentation relevant to the issues in dispute, S.H. failed to do so. Certas submits that I draw an adverse inference as a result.
10At the time of this hearing, S.H. has failed to provide several key documents: a complete employment file from J.C. Convenience, her family store where she claims to work as a Manager; a Declaration of Post-Accident Income (OCF-13); her Income Tax Returns and Notices of Assessment for 2016 and a statutory declaration addressing employment and income-related information, as ordered by the Tribunal. I consider this documentation necessary to determine both entitlement to and quantum of an IRB. I find this non-compliance severely undermines S.H.’s case and is prejudicial to Certas, in both its continuing evaluation of the file and in this proceeding.
11At all times during the life of this file, S.H. has been represented by the same counsel. In written submissions, S.H. offered no explanation as to why she did not comply with the production orders from the Tribunal of January 18, 2018 and March 16, 2018 for financial and employment documentation, why she did not honour her own undertaking to comply with said Orders and why she ignored the good-faith requests from Certas in various correspondence. I am cognizant of the fact that some of this documentation—especially as it relates to her self-employment at J.C. Convenience—may not exist, but S.H. offers no explanation of the sort.
12Instead, S.H.’s argument for entitlement is predicated on the fact that since S.H. continues to receive treatment for her accident-related injuries, she is automatically entitled to continue receiving an IRB. In submissions, S.H. ignores the issue of her non-compliance. In my view, this strategy is fatal to her claim.
The evidence for continuing entitlement and reinstatement
13I must make a determination on the issues in dispute based on the evidence put before me. On the evidence, I find the medical evidence provided falls well short of S.H.’s burden to prove continuing entitlement to an IRB.
14S.H. directs me to various reports and treatment plans—many from over three years ago—as well as her treatment records to date as evidence of automatic entitlement to IRB. In doing so, S.H. seems to argue that approval to seek treatment for injuries sustained in an accident is prima facie evidence of entitlement to an IRB. I disagree, as this is not the test S.H. must meet. The test for IRB under the Schedule requires S.H. to prove that she suffers a substantial or complete inability to perform the essential tasks of her employment. She has done neither.
15First, with regards to her alleged employment as a Manager at J.C. Convenience, S.H. did not offer an analysis on her inability to conduct her pre and post-accident employment activities and why she should still be entitled to an IRB under the Schedule. On the evidence available, there is no indication of what her current or previous tasks entail and why she is unable to perform them. S.H. does not indicate how much she is working, what her role is or what the essential tasks of her employment are. On this evidence, S.H. does not meet her case.
16Second, with regards to her employment as a bookkeeper at R.M., the Job Demand Analysis and other s.44 IE’s2 indicate that S.H.’s job is sedentary, akin to most clerical office jobs. S.H.’s duties include typing, filing and general computer work and she has access to numerous assistive devices to ease her workload. S.H. also reported that on the rare occasions where she is required to lift objects in excess of 10 lbs., that her co-workers happily assist her. The Ergonomic Assessment—conducted to ensure proper support for S.H.’s alleged neck pain—revealed no issues, as her job only requires occasional walking, frequent sitting and rarely standing. The Functional Abilities Evaluation revealed active and full range of motion in the cervical spine, lumbar spine, shoulders, elbows and wrists and no reported pain in S.H.’s hips, knees and ankles. From a functional perspective, I follow the opinions of various assessors and find there is no indication in the medical evidence that S.H. is incapable of returning to work as a bookkeeper.
17Further, based on the Psychiatry Assessment Report of Dr. Kolawole, which I prefer, S.H. does not suffer from an anxiety disorder or post-traumatic stress disorder that would render her unable to complete the tasks of her employment, whether as a bookkeeper or as a store manager.
18Finally, the anticipated duration of S.H.’s disability and entitlement to an IRB was nine to 12 weeks.3 Certas paid the IRB in good faith for a period of 44 weeks, for a total amount of $20,917.71. As an insurer is statutorily-entitled to do, Certas scheduled a series of IE’s to determine S.H.’s continuing entitlement. These IE’s revealed that S.H. no longer met the test for an IRB and it was on this basis that Certas stopped the IRB.
19In submissions and through her non-compliance, S.H. failed to meet her onus to refute Certas’ determination on IRB entitlement and, as a result, I find that she is not entitled to a reinstatement of her IRB in the amount of $400.
Interest
20Having determined that S.H. is not entitled to a reinstatement of an IRB, no interest is payable.
CONCLUSION
21For the reasons outlined above, I find that:
i. S.H. is not entitled to an income replacement benefit for the period in dispute. Accordingly, no interest is payable.
ii. The application is dismissed.
Released: June 28, 2018
Jesse A. Boyce, Adjudicator
Footnotes
- O. Reg. 34/10.
- In total, Certas conducted the following s. 44 IE’s: a Functional Abilities Evaluation, a Job Demand Analysis, a Physiatry Assessment and a Psychiatry Assessment.
- OCF-3 Disability Certificate of Dr. J. Nelson, dated January 26, 2015.