A.H. v. Certas Home and Auto Insurance Company, 2019 CanLII 101449

Tribunal File Number: 18-008937/AABS

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

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant: Roshni Sharma

Counsel for the Respondent: Richard J. Campbell

Written Hearing: April 1, 2019

OVERVIEW

1The applicant, A.H., was injured in an accident on July 8, 2014 and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (Schedule).

2A.H. received payment for an income replacement benefit (IRB) from July 15, 2014 to October 5, 2016. The IRB was suspended by Certas on the basis that A.H. did not meet the post-104-week test required by the Schedule. A.H. disagreed with Certas’ decision 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 their dispute and, thus, proceeded to this written hearing.

ISSUES TO BE DECIDED

4The following are the issues to be decided, as per the Case Conference Order dated February 7, 2019:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $185.00 less amounts paid from October 5, 2016 to date and ongoing?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

5I find A.H. is not entitled to a post-104-week IRB or an award.

ANALYSIS

Is A.H. entitled to an income replacement benefit?

6No. I find A.H. is not entitled to an income replacement benefit for the period in dispute, as she has not satisfied her onus to prove, on a balance of probabilities, that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

7Initial entitlement 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. Sections 6, 7 and 51 of the Schedule address entitlement for IRBs for the period 104 weeks post-accident. At the 104-week mark, the test changes: A.H. must suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience as a result of the accident. Several factors inform the analysis, including: suitable employment, training and education, comparable wages, any attempts to return to work, any disabilities preventing a return and whether a return to work is detrimental to recovery.² The onus to prove entitlement rests with A.H.

A.H.’s initial IRB entitlement

8A.H. was paid an IRB from July 15, 2014 to October 5, 2016 on the basis of an OCF-3 listing her injuries as a low leg injury, thorax injury, low back, SI joint and WAD Level II. Her physiotherapist determined that she was substantially unable to perform the essential tasks of her employment and could not return to work on modified duties. In a report dated June 2, 2015 from an Insurer’s Examination (IE) by Dr. Abram, physician and chiropractor, it was determined that A.H. was “not currently employable at either a heavy, medium, light or sedentary strength job” and that her prognosis remained guarded. At the time of the accident, A.H. owned and operated a retail store which sold African clothing, food and household items. Before this, she worked for approximately one month as a poultry sorter at a processing facility. Neither job required significant communication in English or computer skills.

A.H.’s post-104-weeks entitlement

9Certas conducted a round of IE’s in 2016 to assess A.H.’s continuing entitlement. It relied on three IE’s—A.H. was assessed by a neurologist, a physiatrist and a psychiatrist—when it denied A.H.’s post-104-week IRB entitlement. A.H. submits that the assessors were not provided with copies of the Transferable Skills Analysis, did not consider A.H.’s highest level of education, previous employment experience and limited English language skills. A.H. submits that she meets the post-104 test based on Certas’ reports and a note and letter from her family physician. Certas argues that she has not provided evidence to satisfy her burden. I agree with Certas.

The medical evidence

10I prefer the medical evidence of Certas to A.H.’s, as it comprises a significant majority of the evidence and is more recent and therefore more relevant to the legal test A.H. must meet. A.H. relies on Certas’ reports to prove entitlement, which is, in my view, very problematic, considering Certas denied her entitlement to post-104 IRBs based on these reports. As Certas remarked, the remaining medical evidence before the Tribunal “is effectively 3-4 years old and consists of claims forms and comments by treating practitioners in 2014 and 2016, plus a single, 1 paragraph 2019 note.” In searching through the evidence before the Tribunal, there is little to nothing that speaks to A.H.’s recent medical history of impairments and even less that addresses the complete inability test required by the Schedule.

11In her reply to Certas’ submission that she has not provided evidence to meet her burden, A.H. argues that Certas is “confusing sufficient evidence of an impairment with a medical-legal report” and “essentially submitting that a medical-legal report is required for a finding of post-104 IRBs.” I disagree. A medical-legal report is not required, and I find Certas never made this assertion. Rather, I find the crux of Certas’ submissions echo my own concerns: that there was little to no corroborating evidence put forward by A.H. at all, regardless of form. Aside from not submitting a competing medical-legal report, A.H. provided no submissions on any attempts by her to return to work, no breakdown of comparable jobs or wages, no recent evidence of disability and no argument as to why it would be detrimental to her recovery to obtain employment. There are no updated clinical notes or records showing treatment and no corroborating medical files.

12The only recent evidence submitted by A.H. consisted of a note and letter from Dr. Gimbel dated February 8, 2018 and February 20, 2019, respectively. The note spoke to A.H.’s dizziness but made no diagnosis. The letter indicates A.H. was seen for pain concerns in her head, neck, shoulders and back on December 10, 2018 because of an accident, but the letter does not specify which accident.³ The letter states that A.H. has not been able to return to work, but it does not address the complete inability test and does not make a diagnosis. Simply put, there is no recent or continuously relevant evidence before the Tribunal documenting A.H.’s complete inability to engage in any employment for which she is reasonably suited. In turn, I find her submissions also fail to address the relevant test or the factors involved.

The IE reports

13On November 10, 2016, A.H. was assessed by Ms. Smith, a Vocational Evaluation Specialist for Certas. Contrary to A.H.’s claim, the report notes A.H.’s lack of formal education, her lack of English skills and computer skills. It includes a Transferable Skills Analysis and a Comprehensive Skills Profile. It identifies four suitable employment alternatives for A.H.: Retail Sales Supervisor, Salesperson, Cashier and Sales Demonstrator and the compensation ranges for each, which I find are in line with her pre-accident income, based on the 2013 income tax return in evidence.

14A.H. argues that the report does not address the specific requirements of each position and that, in any event, none of the occupations are suitable for her, since all of them require English language skills and standing for long periods of time, which she cannot do because of her ongoing pain. A.H. argues that Certas failed to conduct a functional capacity evaluation or job demands analysis to determine if A.H. has the physical capabilities to complete the jobs suggested. Despite not having this information and in the face of her ongoing pain complaints, all three IE’s determined that she did not meet the post-104 IRB test. While I agree with A.H. that the report is not particularly persuasive, A.H. has offered nothing to rebut it.

15Additionally, A.H. provided no evidence to rebut the opinions of Dr. Mehdiratta (neurologist), Dr. Heitzner (physiatrist) and Dr. Patel (psychiatrist) who all found that A.H. does not have a complete inability to engage in any employment or self-employment for which she is suited on any of a neurological, musculoskeletal or psychological basis. The reports do not identify ongoing physical limitations or psychiatric diagnoses. They all note that A.H. is independent in her self-care, that she has had two children since the accident and, generally, that she does not present as unfit to return to work. On the evidence available, I see no reason to depart from these findings or the determination Certas made in relying on them.

16Accordingly, I find that A.H. has not provided enough evidence to conclude, on a balance of probabilities, that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience as a result of the 2014 accident.

AWARD

17A.H. seeks an award under s. 10 of O. Reg. 664, arguing that Certas unreasonably withheld payment of her post-104-week IRB and “did not conduct a proper investigative process.” Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which A.H. is entitled if the Tribunal finds that Certas has unreasonably withheld or delayed payments because of its conduct.

18On the facts and evidence before me, I find an award is not appropriate. As the post-104-week mark approached, Certas was within its rights under the Schedule to seek IEs to assess A.H.’s continuing entitlement, as the legal test changes at this point. Certas conducted IEs and arrived at the determination that A.H. was not entitled to a post-104 IRB on those opinions. While A.H. disagreed, there was nothing improper about Certas’ handling of the claim and, in my view, nothing amounting to unreasonable conduct or bad faith sufficient to warrant an award.

CONCLUSION

19For these reasons, I find A.H. is not entitled to a post-104-week income replacement benefit or an award. As no benefits are owing, no interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2See, for e.g., Applicant v. Guarantee, 2018 CanLII 112115 (ON LAT).
3. 3A.H. was in a second motor vehicle accident on August 5, 2017, which is characterized in her submissions as minor, a characterization disputed by Certas.