P.B. v. Aviva General Insurance, 2019 CanLII 122735

Licence Appeal Tribunal

Citation: P.B. vs. Aviva General Insurance, 2019 ONLAT 18-009287/AABS

Tribunal File Number: 18-009287/AABS

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:

P.B. Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Julia Vilorio Peguero, Counsel

For the Respondent: J.C. Rioux, Counsel

HEARD: In Person on July 16-17, 2019

OVERVIEW

1The applicant was involved in an automobile accident on April 9, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). After the applicant was denied non-earner benefits by the respondent, the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve that dispute.

2The applicant brought a motion asking the Tribunal to determine at the hearing “whether the OCF-10 election is valid and final, when only one benefit was indicated in the application and the Applicant is in fact only entitled to one benefit?”

3At the commencement of the in-person hearing, I reserved on this motion as three days had been set aside for an in-person hearing. Deciding on the motion at the hearing would have resulted in the hearing’s adjournment to a further hearing, six months to a year later. This adjournment would have prejudiced the applicant on a hearing on the merits of the issues before the Tribunal.

4The respondent raised the issue before the Tribunal of whether, because of the limitation period, the applicant could proceed with his claim for a non-earner benefit. I reserved on this issue again to allow a hearing on the merits of the applicant’s claims.

ISSUES IN DISPUTE

5The issues in dispute were identified and agreed to as follows:

Preliminary issues

1. Is the OCF-10 election valid and final when only one benefit was indicated in the application and the applicant is in fact only entitled to one benefit?

2. Is the applicant prevented from proceeding with his claim for a non-earner benefit because of a limitation period?

Substantive Issues

1. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week, for the period October 9, 2016 to date and ongoing?

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

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

RESULT

6The OCF-election by the applicant on June 28, 2016 was valid and final.

7The applicant is also prevented from proceeding with his claim for a non-earner benefit, given the two year limitation period to appeal any denial of benefit.

8Independent of the election and limitation period issues, I find that the applicant is not entitled to a non-earner benefit in the amount of $185.00 per week, for the period from October 9, 2016, to date and ongoing.

9As no benefits were owing, the applicant is not entitled to any interest or an award.

BACKGROUND

10The applicant was in a motor vehicle accident on April 9, 2016. He was T-boned and did not lose consciousness.¹ He was able to get out of the car without any assistance.²

11The applicant’s Disability Certificate (OCF-3) dated April 27, 2016 suggested in the facts section of the form that the applicant could elect for either an income replacement benefit (IRB) or a non-earner benefit (NEB).³ It indicated that the applicant hadn’t worked for the last 6-7 months and was unable to perform the essential tasks of his employment. It was not clear as to whether the applicant at this stage qualified under the Schedule for an IRB or an NEB. The applicant’s OCF-2 (Employers’ Confirmation) dated June 14, 2016 indicated that the applicant last worked on May 30, 2015, just under a year prior to the accident.⁴

12The respondent, on May 18, 2016, sent a letter to the applicant, indicating that the applicant would have to elect between an IRB and NEB.⁵ A further letter was sent on June 27, 2016 asking the applicant to make an election.⁶

13Utilizing an OCF-10 form, the applicant elected an IRB on June 28, 2016. The OCF-10 form made it clear that, once the applicant elected between the IRB, NEB or Caregiver benefits, the applicant cannot change the election unless the injury is designated as “catastrophic” as defined by the Schedule.⁷

14By letter dated July 11, 2016, the respondent indicated that the applicant was not entitled to an IRB as the applicant did not meet the criteria under section 5(1) of the Schedule as he was unemployed.

15Thus, on July 12, 2016, the applicant re-elected to receive an NEB.⁸ The respondent denied the benefit by letter dated July 26, 2016.⁹

16In his September 26, 2018 application to the Tribunal, the applicant listed the NEB as an issue in dispute.¹⁰ The application also noted that the dispute did not involve whether the applicant had sustained a catastrophic impairment as defined in the Schedule.

17The applicant had been working as a machine operator from September 9, 2014 until May 30, 2015, when he was apparently laid off. He then worked at his family’s business as a helper from February to April 2016, during which time he was paid cash.¹¹

18To better understand how the respondent processed the claim, on June 26, 2019, the applicant moved the Tribunal to order the respondent to produce the accident benefits file and adjuster’s log notes. Adjudicator Ian Maedel, on the consent of the parties, ordered the respondent to produce the accident benefit file, which contained the adjuster’s log notes.

Applicant’s Position

19The applicant’s position is that there was no need for any election between a NEB and IRB as he was not working at the time of his application and argues that he was not entitled to an IRB. The applicant claims that the respondent had all necessary information about the applicant’s work history and, therefore, the letters requiring an election were not required. The letters requiring an election were also confusing when the applicant had no options to elect. It was the responsibility of the respondent to assist the applicant with filing the right form.

20The applicant also maintains that the hearing was not a fair because:

i. The adjuster log notes which were produced included notes related to other family members, making them confusing particularly as to what was redacted and who the redactions related to.

ii. The applicant had to make a motion for the complete accident benefit file on June 26, 2019, which, as mentioned above, was granted on consent. However, the materials were only delivered shortly before trial.

iii. The applicant had written to the respondent on July 12, 2016, asking for the Insurer’s Examination Report by Dr Syed for the assessment which took place on July 12, 2016, which the applicant eventually received before the trial.

iv. All of the materials delivered were not delivered in accordance with the Tribunal’s Rules and timeframes.

21Additionally, the applicant’s position is that, once he provided a Disability Certificate to the respondent, the respondent was obligated to pay the benefit sought if it failed to provide a medical reason for refusing the benefit. The applicant takes the position that no medical reason was given to the applicant for refusing the NEB and, therefore, he was and is entitled to the NEB.

Respondent’s Position

22The respondent’s position is that the applicant‘s work history wasn’t clear, as he had also worked for his family business and was paid cash. His work history had to be confirmed. The respondent called the applicant’s employer to confirm the dates that he had worked last but received no response other than the initial confirmation through the OCF-3 dated June 14, 2016. The applicant’s Disability Certificate added confusion to his work history by indicating that the applicant was “substantially unable to perform the essential tasks of his employment as of the date of the accident.”

23The respondent maintains that the letters it sent the applicant concerning his election were clear as to his required elections. The respondent also agreed to give to the applicant clearer log adjuster notes, with proper redactions relating to the applicant, after the hearing.

24The respondent acknowledged that the adjuster log notes were confusing but maintains that they only related to the issue of the award and were not relevant to any other issues.

25The respondent also takes the position that a disability certificate doesn’t automatically require an insurer to pay the benefit, if the insurer believes that the insured is not entitled to said benefit.

ANALYSIS

Preliminary Issues

Election

26Section 35(3) of the Schedule makes it clear that, once an election has been made, the election is final, unless there is a determination that the applicant has sustained a catastrophic impairment.

27The applicant has not elected to have the issue of catastrophic impairment determined in his application, and has put forth no evidence, medical or otherwise, to show that he suffers from a catastrophic impairment.

28I find that the application indicates that the applicant may qualify for an IRB and NEB, and that election materials submitted by the respondent to the applicant were clear and concise as to what the applicant had to do.

29The Disability Certificate dated May 10, 2015 sent by the applicant to the respondent indicated that the applicant was “unable to perform the essential tasks of his employment as a result of the accident”. The certificate also indicated that the “applicant suffered a complete inability to carry on a normal life.”¹² The employer’s Confirmation Form dated June 14, 2016 indicated that the applicant had finished his employment as a machine operator on May 30, 2015. The applicant‘s oral evidence was that he worked at a family business as a helper from February to April 2016, where he was paid cash.¹³

30Given these facts, I find that the applicant’s working history was not clear, and that the respondent had the right to request an election. Section 35 of the Schedule is clear that, if an application indicates that the applicant may qualify for both an IRB and a NEB, the insurer can require the insured to elect.

31The insurer is required under section 36 of the Schedule to give reasons for refusing a benefit under that section, after receiving a completed Disability Certificate. The reasons can be medical and other reasons. The insurer made it clear why the applicant was not entitled to receive either an IRB or a NEB because of the elections required and section 35(3) under the Schedule, making elections final. I do not accept the applicant’s interpretation of this section that the reason must be medical and that if no medical reason is given, that the benefit must be paid.

32The applicant’s referral to section 37of the Schedule does not apply, since no benefit was ever paid under Section 36 of the Schedule to the applicant.to the applicant.

33Based on the above analysis, I therefore find that the applicant’s election for an IRB is final, and that the claim for a non-earner benefit in invalid.

Fairness of Hearing

34I found that the adjuster’s log notes were confusing and therefore I ordered the respondent to produce, on consent of the parties, clearer log notes, with proper redactions, within 30 days of the July 16 and 17 hearing dates. I also ordered that if the applicant wanted to cross-examine the adjuster on the new log notes and let the Tribunal know within 20 days after receiving the log notes, an additional hearing date would be set for cross-examinations before the issue of the award was dealt with. The applicant made no such request.

35The applicant also raised a related production issue claiming the applicant had received Dr. Syed’s report just before the hearing and was therefore prejudiced. Dr. Syed’s report had to do with the determination as to whether the applicant’s injury was a minor injury and whether the proposed treatment plan dated May 2, 2016, for medical/rehabilitation benefits were reasonable and necessary. Those issues were not before the Tribunal, so the report has limited relevance to the issues before the Tribunal.

36It is up to the parties to bring any motions for productions within a reasonable time before any hearing. No party can wait until the last moment to request productions and then complain about the Tribunal’s Rules and timeframes not being followed.

37I find that there was no prejudice to the applicant on the productions. The main complaint of the applicant relating to productions were the log notes and their lack of clarity. To address that concern, I gave the applicant an opportunity to cross-examine the adjuster on the re-submitted log notes after the hearing, but the applicant chose not to. The log notes only related to the issue of the award claimed, which award has been denied.

38I find that the hearing was fair.

Limitation Issue

39Although the applicant’s election prevents him from succeeding on this claim, I will briefly address the respondent’s claim that the limitation period also produces the same result. I agree with the respondent. Section 56 of the Schedule requires all applications to be commenced within two years after the insurer’s refusal to pay the amount claimed. The applicant’s claim to the insurer for a NEB was submitted on July 12, 2016 and denied on July 26, 2016. The applicant submitted an application to the Tribunal on September 26, 2018 for a NEB. This was two months past the limitation period.

40Section 7 of LAT Act gives the Tribunal discretion to extend the limitation period if there are reasonable grounds provided. The applicant did not testify, so no reasonable grounds were provided to the Tribunal for extending the limitation period.

41I therefore find that the applicant is prohibited from bringing an application for an NEB as the time limitation for bringing the application had passed.

SUBSTANTIVE ISSUES

42As per the above analysis, the applicant is not entitled to a NEB. In addition to the above analysis, even though the applicant’s counsel directed me to the various medical reports to show the medical problems that the applicant had, this evidence was not enough to justify an NEB. Schedule 12 requires that the applicant to suffer a complete inability to carry on a normal life as a result of the accident.

43This requires the applicant to provide a detailed analysis of his pre-accident life, compared to his post-accident life.¹⁴ The only evidence given in the various medical reports was that the applicant recorded music and had a girlfriend before the accident. Nothing changed after the accident. Since the applicant did not testify, the Tribunal is unable to compare the applicant’s pre-accident life with his post-accident life to determine whether he suffered a complete inability to carry on a normal life as a result of the accident.

Interest/Award

44I find that as no benefits are owing, no interest is owing or an award.

CONCLUSION

45For the reasons above, I find that:

i. The OCF-election by the applicant on June 28, 2016 was valid and final, thereby preventing the applicant from receiving a non-earner benefit

ii. Because of the limitation period of two years to appeal any denial of benefit, the applicant is also prevented from proceeding with his claim for a non-earner benefit.

iii. Independent of the above two findings, on the merits of the claim, the applicant is not entitled to a non-earner benefit in the amount of $185.00 per week, for the period from October 9, 2016, to date and ongoing.

iv. As no benefits were owing, the applicant is not entitled to any interest or to a special award.

Footnotes

1. 1Tab 12
2. 2Tab 15 Respondent’s Brief of Documents
3. 3Applicant’s Brief of Documents Tab 5
4. 4Applicant’s brief of documents Tab 4
5. 5Applicant’s Brief of Documents tab 16
6. 6Exhibit 7
7. 7Tab 8 Respondent’s Brief of Documents
8. 8Ibid
9. 9Tab 18 Respondent’s Brief of Documents
10. 10Tab 2 Respondent’s Brief of Documents
11. 11Report of Dr. Syed dated November 24, 2016 Tab 14 of Respondent’s Brief of Documents
12. 12Tab 5 Respondent’s Brief of Documents
13. 13Report of Dr. Syed dated November 24, 2016 Tab 14 of Respondent’s Brief of Documents
14. 14Heath v. Economical Mutual Insurance Company 2009 ONCA 391, 95 O.R. (3d) 785