M.R. v. Allstate Insurance Company, 2019 CanLII 110112

Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Craig Mazerolle, Adjudicator

Date: November 1, 2019

File: 17-008969/AABS

Case Name: M.R. v. Allstate Insurance Company

Written Submissions by:

For the Applicant: Tina Radimisis, counsel

For the Respondent: Derek Yap, counsel

OVERVIEW

1The applicant was injured in a motor vehicle accident on March 18, 2015. She sought benefits pursuant to the Statutory Accident Benefits Schedule¹ (the ''Schedule''). When some of these benefits were denied by the respondent, she applied to the Tribunal.

2In a decision dated June 21, 2019, I found she was entitled to an income replacement benefit (limited to January 5, 2016 to June 3, 2017). I then denied her entitlement to an attendant care benefit, and I ordered that the applicant was unable to proceed with her application for three disputed treatment plans, on account of her non-attendance at two insurer’s examinations.

3The applicant takes issue with this decision, and so she has filed a Request for Reconsideration. Specifically, the applicant is seeking an order granting her entitlement to the denied benefits, as well as an order to allow her to proceed with her application for the disputed treatment plans. In response, the respondent is asking me to uphold my original decision.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009², I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

5For the reasons that follow, the applicant’s Request for Reconsideration is dismissed. However, upon further review, I also find that my decision to grant an income replacement benefit from March 16, 2017 to June 3, 2017 was unreasonable.

ANALYSIS

6The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (the “LAT Rules”). A request for reconsideration will not be granted unless one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

7The applicant argued that Rule 18(b) applies to this case, i.e., the Tribunal has made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

8More specifically, the applicant submitted that the Tribunal:

a. failed to allow the inclusion of her catastrophic impairment determination assessment report (the “CAT Report”);

b. incorrectly concluded that she was not entitled to retroactive attendant care benefits (on account of s. 42[5] of the Schedule);

c. incorrectly concluded that further insurer’s examinations were reasonably necessary in the face of the existing medical evidence; and,

d. failed to correctly apply relevant case law in denying her request for income replacement benefits past June 3, 2017.

9In its responding materials, the respondent contended that the Tribunal decision is “well reasoned, reasonable, and well within the range of acceptable outcomes.” Further, there is no indication that any error of fact or law was made that would have changed the ultimate outcome of the decision.

10I will address each of the applicant’s submissions in turn.

Inclusion of the CAT Report

11In the original decision, I found that the CAT Report would not be allowed into evidence for the following reasons: “I found that the late submissions of these detailed documents was highly prejudicial to the respondent, and this prejudice outweighed their probative value in this case.”³

12The applicant took issue with this determination by citing decisions where adjudicators have allowed for the late submission of evidence. Additionally, the applicant argued that the respondent would not suffer any prejudice by the inclusion of the CAT Report, as it has “presented various reports to assert their denial of the Applicant’s benefits, and the evidence substantiating those right is no way prejudicial to the Respondent.”

13Beyond reiterating the comments above from the original decision, I would add that there was an inherent unfairness to the possibility that the applicant would be able to rely on comprehensive reports addressing her medical condition, while the respondent would have no reports responding to these claims.

14I would also note that, even if I were to allow the CAT Report into evidence, there is no prospect that this additional medical evidence would have changed the result of the hearing. That is, the findings regarding the income replacement benefit after the 104-week mark were mainly based on the applicant’s return to work in June 2017. Additionally, the denials of the attendant care benefit and the treatment plans were based on statutory bars to these benefits, as opposed to evidence about the applicant’s medical condition or level of functionality.

Attendant Care Benefit

15I denied the applicant an attendant care benefit, due to s. 42(5) of the Schedule. This section states that an insurer “may” pay for attendant care services incurred before a Form 1 is filed. This voluntary language implies that there is no obligation on an insurer to pay for these services if a Form 1 has not been submitted in advance of the services being incurred.

16The applicant argued that this interpretation is incorrect, as “[t]here is no legislative or judicial authority which states that the Applicant is not entitled to retroactive Attendant Care Benefits”. Further, the applicant submitted that the evidence is clear that she meets the standard for entitlement to this benefit.

17I am bound by the language of the Schedule, and I have not been provided with a convincing account of why my interpretation is a significant error of law. This finding shall stand.

18Section 44(1) of the Schedule states that an insured person is required to attend an insurer’s examinations, but no more than is “reasonably necessary” to adjust the claim. If an insured person chooses not to attend an examination, they will not be allowed to proceed with an application for the benefits under examination: see s. 55(1) of the Schedule. An insured person can challenge the need to attend an insurer’s examination in a number of ways, including challenging whether the proposed assessment is reasonably necessary.

19In the present matter, I found that the applicant’s failure to attend two insurer’s examinations disentitled her from pursuing a claim for the three disputed treatment plans (at least, until she attended these assessments). Specifically, while the applicant argued that the proposed examinations were redundant, I still found that the length of time since the accident made them reasonable (as the respondent wanted updated medical information).

20The applicant now argues that my finding was unreasonable, as the requested assessments were unnecessary duplications of examinations that the respondent had already conducted. The applicant also submitted that she has provided the respondent with “ample medical evidence”, so any further examinations would be “redundant”.

21I do not accept this submission, as it appears to be an attempt to relitigate the arguments she made during the original hearing. Though the applicant has every right to disagree with my finding, I see no reason why it meets any of the standards laid out in Rule 18 of the LAT Rules.

Income Replacement Benefit

22As noted at paragraphs 16 and 17 in my original decision, the standard for entitlement to an income replacement benefit is as follows:

Section 5(1) of the Schedule states that an insured person is entitled to an income replacement benefit if she or he is employed at the time of the accident and sustains an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. Then, at the 104 week mark after the accident, s. 6(2)(b) states that an insured person will be entitled to continuing payments if the accident-related impairments cause “a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

The 104 week mark after the applicant’s accident is March 15, 2017.

23After summarizing the standard, I then concluded that the applicant was entitled to an income replacement benefit from January 5, 2016 to June 3, 2017, less any amounts earned during this period. Briefly, I reached this conclusion by finding that—on account of her accident-related, psychological impairment—the applicant was substantially unable to perform the essential, managerial tasks she did before the accident. However, while I found that she met the “substantial inability” standard, I did not conclude that she met the test for “complete inability”. I reached this conclusion, because she returned to work at a similar position to her pre-accident employment on June 3, 2017. I made this finding even though the applicant then left this new position five months later.

24The applicant challenged my order by arguing that her ability to work after the 104-week mark should not disentitle her to an ongoing income replacement benefit. Specifically, the applicant cited 16-002000 v. Jevco Insurance⁴ and 16-000082 v. Echelon General Insurance Company⁵ for the proposition that it is not enough for an insured person to be able to work after the 104-week mark, but they must be able to work in a predictable and reliable fashion. The applicant also noted that the five-month position she held following the 104-week mark was significantly different from her pre-accident employment.

25I do not accept this submission. Beyond my observation that the applicant is again relitigating issues that were decided during the hearing, I conclude that Jevco and Echelon can be distinguished from the matter at hand.

26First, in reaching her conclusion that the applicant suffered from a “complete inability” in Jevco, Adjudicator Truong made the following finding about the applicant’s employability:

I find the applicant does not have work capacity. It is highly unlikely that an employer would hire and retain such an unpredictable and unreliable worker. The applicant would not be able to fulfil the basic expectations of an employer such as punctuality, regular attendance and the ability to consistently complete his job duties in a timely manner due to his accident-related impairments. In other words, the applicant is unable to meet reasonable standards of productivity in a competitive marketplace.⁶

27This finding is at odds with the present case, as the applicant was able to find and then maintain comparable employment following the 104-week mark. As such, I cannot say that the applicant “does not have work capacity”, because she appears to be capable of meeting “reasonable standards of productivity in a competitive marketplace.”

28Then, in regard to her argument that I erred in law by finding any employment after the 104-week mark disentitles an applicant to an income replacement benefit (as the successful applicants in Jevco and Echelon both worked after the 104-week mark), I find that the applicant has misinterpreted my finding. That is, I did not conclude that the applicant was disentitled to the benefit simply due to the fact that she worked after the 104-week mark, but rather her position was “a similar role to her pre-accident employment”.⁷

29Finally, though the applicant may disagree with my finding that her employment after the 104-week mark was significantly different than her pre-accident employment, this submission is an attempt to dispute a finding of fact that I was able to reasonably reach on the evidence before me. As such, this argument does not meet the grounds under Rule 18.

30Though I do not conclude that I made a reversible error concerning the benefit after June 3, 2017, I do find that I erred in awarding an income replacement benefit from March 16, 2017 to June 3, 2017.

31In my original decision, I concluded that the applicant did not have a “complete inability” to pursue any reasonable form of employment or self-employment due to her ability to return to work with a high-end fashion store on June 4, 2017. As noted above, I stand by this reasoning.

32However, upon further review of my original decision, I noted that I did not make a specific finding made about the brief period from the 104-week mark to June 4, 2017. This failure to make a finding (and to instead award the benefit) amounted to a reversal of the applicant’s onus. That is, the applicant has an onus of demonstrating her entitlement to an income replacement benefit. By failing to make a finding, I effectively found that the respondent had failed to prove she should not be entitled to the benefit. This reversal is a significant error of law that must be addressed.

33Therefore, by upholding my earlier finding that the applicant’s ability to return to comparable, pre-accident work demonstrated that she did not suffer from a “complete inability” from June 4, 2017 onwards, I then find that the brief gap in time between the 104-week mark and this return to work is strong evidence that she never met the “complete inability” standard. As such, I find that the applicant did not demonstrate her entitlement to any income replacement benefit following the 104-week mark.

CONCLUSION

34The applicant’s Request for Reconsideration is dismissed. The applicant is no longer owed an income replacement benefit from March 16, 2017 to June 3, 2017, nor is she owed any interest from this period.

Craig Mazerolle Adjudicator Licence Appeal Tribunal

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2S.O. 2009, c. 33, Sched. 5.
3. 3M.R. v. Allstate Insurance Company, released June 21, 2019, at para. 12.
4. 42017 CanLII 63617 (ON LAT) (“Jevco”).
5. 52016 CanLII 82874 (ON LAT) (“Echelon”).
6. 6Jevco, at para. 31
7. 7M.R. v. Allstate Insurance Company, released June 21, 2019, at para. 44.