Aviva Insurance Canada v. P.R., 2019 CanLII 130364

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: Jeffrey Shapiro, Vice-Chair

Date: December 5, 2019

File: 17-007666/AABS

Case Name: Aviva Insurance Canada v. P.R.

Written Submissions by:

For the Applicant (Aviva): Monica Pathak, Counsel

For the Respondent (P.R.): Anna Szczurko, Counsel

OVERVIEW

1Aviva seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) September 13, 2018 Order.

2The issues before the Tribunal concerned various claims about P.R.’s entitlement to an income replacement benefit (the “IRB”) under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”) arising out of a motor vehicle accident. As set-forth below, the Tribunal found that during the approximately 14½ months that Aviva paid P.R. the IRB before stopping it, Aviva overpaid and was entitled to a repayment of $7,885.31. The Tribunal also found that P.R. was entitled to have the IRB continued for 7½ months after that period and found the rate to be $326 per week with interest, less certain deductions.

3Aviva seeks to vary the Tribunal’s order to increase the amount of the repayment and to order that P.R. is not entitled to the continuation of IRB, or if P.R. is entitled to the ongoing IRB, that it should be at a lower rate. Alternately, Aviva seeks an order that a new hearing be held limited to those points. Aviva submits the Tribunal made four significant errors of fact and two errors of law. In simpler terms, Aviva disputes the Tribunal’s finding that the IRB should continue as well as the amounts awarded. P.R. submits the decision should be affirmed.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5Aviva’s request for reconsideration is denied as to the ongoing IRB but is granted limited to correcting errors in the calculation of the amount of the repayment and the amount of the weekly IRB rate, as set out below.

6Stated in another manner, the Tribunal made reasonable findings about P.R.’s inability to return to his employment due to injuries sustained as a result of the accident and the income that should have been deducted from the IRB, but the Tribunal made several calculation errors regarding the amounts awarded.

BACKGROUND

7P.R. was injured in a motor vehicle accident on August 31, 2015 and sought accident benefits from Aviva, including the IRB. Aviva initially paid the IRB for about 14½ months until November 15, 2016. Thus, this claim essentially involves two disputes for two different periods – i.e. whether Aviva overpaid the IRB through November 15, 2016, and then, whether Aviva should continue paying the IRB from November 16, 2016 to August 31, 2017 (the two-year mark) and, if so, at what rate.

8As set-forth below, this matter is complicated by the fact that the various accounting reports do not focus on the November 15, 2016 date that Aviva stopped paying the IRB, besides utilizing different assumptions. For example, the key “joint” accounting report is calculated through October 6, 2016, yet Aviva’s repayment letter is calculated to December 7, 2016, and applicants’ reports use other dates. In essence, the parties and their reports are talking “apples versus oranges.”

9In any event, Aviva seeks repayment for the first period (i.e. until November 15, 2016). The parties agree that when Aviva was paying the IRB, P.R. also received (1) a disability benefit (the “Edge benefits”) for the first 5 or 6 weeks of the IRB until October 9, 2015, which Aviva knew about and thus deducted it under the Schedule’s formula from the IRB it paid, and (2) employment income after April 19, 2016, which Aviva did not deduct from its IRB payments to P.R.

10The parties agreed the employment income should be deducted but was not and disagreed about the deductibility of the Edge Benefit and also if a repayment claim was time-barred. The Tribunal found the Edge Benefit should have been deducted.¹

11Regarding the second period (i.e. November 16, 2016 to the two-year mark on August 31, 2017), P.R. argues that Aviva should not have stopped the benefit, and that he is entitled to have it continue, less deductions for income received.

12The matter before the Tribunal began when Aviva filed an application seeking an order of repayment. In response, P.R. claimed the Edge benefits should not have been deducted and thus he was underpaid on his IRB for the first period, and he asserted his claim for the ongoing IRB in the second period. A hearing was held by a combination of written submissions and oral testimony by telephone. The parties submitted a joint accounting report which was used to establish the repayment amount at $7,885.31 (“the joint report”), and each party submitted their own accounting reports.

13Concerning the repayment, the adjudicator found that Aviva did overpay P.R. for the period of September 14, 2015 to December 7, 2016 in the amount of $7,885.31. The Tribunal also made a finding regarding a limitation issue, but as discussed below, that ruling does not affect the result in this matter.

14Concerning P.R.’s entitlement after Aviva stopped the benefit, the adjudicator found that P.R. was entitled to the IRB until August 31, 2017– two-years after the accident – at which point the eligibility required under the Schedule changes. The adjudicator ordered:

[73] ii. “The insurer shall pay P.R. from August 31, 2015 to August 31, 2017 in the sum of $326.00 per week, plus interest in the sum of $82.00 per week (for a total of $408.00 per week), less any income and IRB already paid during the relevant period.”

POSITIONS OF THE PARTIES

15Aviva submits that several factual errors call into question the Tribunal’s conclusion that the applicant is entitled to the IRB until August 31, 2017, and other errors relating to a faulty calculation of the quantum. For instance, Aviva sees no basis for the $326 per week quantum. P.R. submits that Aviva is improperly asking the Tribunal to reweigh the evidence, and that a close look at the alleged errors of law shows there are no errors.

DECISION AND REASONS

16The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. The relevant Rule 18.2 criteria Aviva argues is that “the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.”

17In 16-002782/AABS v Aviva Canada Insurance, 2018 CanLII 39370 (ON LAT) at para. 17, Associate Chair J. Batty explained that Rule 18 affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. Thus, the reconsideration process serves a curative role, including permitting the Tribunal to correct a final decision made in error.

Did the Tribunal err in finding that P.R. suffered a substantial inability to perform the essential tasks of his employment from Aviva’s November 15, 2016 termination until the August 31, 2017 two-year mark?

18Aviva submits that the Tribunal made four identifiable, significant errors of fact which, individually and/or cumulatively, are such that the Tribunal would have reached a different decision had the errors not been made. I disagree. In general, I only find that one of Aviva’s points is an actual error, but nevertheless, in the context of the entire decision it is not “significant” and certainly not result changing. I agree with P.R.’s characterization that Aviva is asking that the Tribunal reweigh the evidence. I will briefly address the points individually and then cumulatively.

19First, Aviva submits that the Tribunal erred by stating that P.R.’s treating family physician Dr. Levine diagnosed P.R. with a minor concussion, when in fact Dr. Levine is not the treating physician but an assessor that conducted an Insurer’s Examination, nor did he diagnosis a “minor concussion.” Aviva appears to be correct on this point. However, P.R.’s treating physiotherapist did make that diagnosis or at least comment. More importantly, such diagnosis does not appear to a significant factor in the Tribunal’s reasoning or decision. The Tribunal’s analysis also does not analyze or rely on the reference to a “minor concussion” – rather the clear focus is on P.R.’s physical injuries and attempts to return to work.

20Under this same heading, Aviva points to surveillance evidence that shows the applicant driving and shopping. Aviva concludes that evidence establishes P.R. is an “able-bodied healthy male”. While the Tribunal does appear to accept that P.R. can drive, the Tribunal was more concerned with his inability to drive for extended periods of time.²

21Aviva’s second, third and fourth points are simply asking the Tribunal to reweigh the evidence. Moreover, I note the Tribunal is not required to refer to each and every piece of evidence in its reasons to arrive at its decision.

22For instance, Aviva’s second argument is that the Tribunal ignored the physiotherapist’s October 2016 clinical notes which note P.R. can return to work, and third, that the Tribunal failed to “objectively and fully address the inconsistencies” in the medical evidence and P.R.’s self-reporting – seemingly accepting P.R.’s statements “carte-blanche.” Yet, the Tribunal focused on P.R.’s attempts to return to work, and the difficulties he encountered.

23Fourth, Aviva argues that the Tribunal erred in accepting Dr. Khumbare’s medical-legal physiatry report related to his March 6, 2017 assessment, as Dr. Khumbare “diagnosed P.R. with chronic pain and psychological distress as a result of the accident” when “he is not qualified to make a psychological diagnosis or comment on same.” I do not accept that “psychological distress” is the same as a “psychological diagnosis”. Further, Dr. Khumbare’s comment was in the context of his capacity as a physician that specializes in chronic pain. In any event, the Tribunal did not base its decision on psychological “distress” or even psychological impairments. Similarly, while Aviva points to P.R.’s activities, such as his return to his position as a truck driver on April 19, 2016, as I have noted above, regarding all these alleged errors, the thrust of the Tribunal’s decision is on P.R.’s attempts to return to work. Certainly, the Tribunal understood P.R. could do some of his activities as a truck driver in isolation; the Tribunal found he could not do them ongoing.

24In summary, while the first point is an error, with all these arguments, Aviva’s real point is to ask that I reweigh the evidence. I decline to do so. I note that the Tribunal clearly appeared to be alive to the issues, noting, for instance, the “medical evidence is not entirely inconsistent in this case.” The Tribunal’s focus was on the work P.R. attempted to do and the Tribunal seemed most concerned with P.R.’s numerous attempts to return to work and that while P.R. could do employment activities in isolation, he could not do his preemployment position. During his numerous attempts at employment, he did perform lighter work but had setbacks with heaver work. There is no question that P.R. has not returned to employment as a truck driver. The decision’s overall focus is as P.R. submits: “The self-evident focus of the Vice-Chair’s analysis of the medical documentation was the Insured’s pain symptoms, chronic pain diagnosis, and functional limitations…” (Response to Request for Reconsideration, para 10.)

Did the Tribunal err in the amounts it awarded for IRB?

25Aviva submits that even if the Tribunal was correct to order that the IRB should be paid on an ongoing basis, the Tribunal erred in several of the amounts awarded for the IRB – both for the repayment and the ongoing amount. I agree with several of Aviva’s points on this issue, and find an additional one, as addressed below.

a. Did the Tribunal err in the amount of the ongoing IRB payment?

26Aviva argues that the Tribunal erred in setting the ongoing quantum of IRB at $326.00 per week, plus past due interest of $82.00 per week, for a total of $408.00 per week.³ Aviva submits it is unclear where the $326.00 figure came from.

27I agree that the $326.00 quantum is incorrect. It appears the $326.00 figure came from Schedule 1 of an April 6, 2018 accounting report authored by Ian Wollach Report (RSM Canada Consulting LP) and submitted by P.R., but that amount is not a weekly rate. Rather, it is Mr. Wollach’s calculation of the total amount he found is due to P.R. – $326.00 – as of August 27, 2017, plus $82 dollars in interest to the date of the report. The report arrives at that number by considering an IRB payable at $400 weekly for 104 weeks after the accident, adjusted for employment income, and then from that number, subtracting the amount he was paid, producing $326 owed. In other words, it found P.R. should have been paid $25,114 for two years, but was only paid $24,788, leaving P.R. entitled to $326 outstanding.

28Thus, there are two errors with the $326.00 figure. First, it does not purport to be a weekly rate. Second, it was arrived at by not deducting the Edge benefits, despite that the joint report did and which the Tribunal concluded should be deducted.⁴ Thus, the $326.00 figure has no relevance to the correct calculation of IRB.

b. What should be the ongoing IRB payment during the 2nd period – i.e. from November 16, 2016 to the August 31, 2017 104-week mark?

29Because all the reports agree that P.R.’s base weekly rate is $400 per week, I find that P.R. is entitled to an IRB at the rate of $400 per week from November 16, 2016 to August 31, 2017, less adjustments for income earned during that period, plus interest. The following assists in calculating that figure.

30While the Tribunal disagreed with the RSM Report’s assumption about the Edge benefits relating to the early period, RSM’s April 6, 2018 report in fact makes those calculations of income earned deductions on a near weekly basis in its Schedule 2. For example, starting with the first relevant period of the pay (RSM lists a period from November 14, 2016 to November 20, 2016), that week shows post-accident income reduced the weekly benefit to zero. The next period of November 21, 2016 to December 4, 2016, shows there was no income to set-off, thus $800 was payable.

31For illustration purposes only, I note my reading of Schedule 2, therefore, shows that from November 14, 2016 to August 31, 2017, $5,389.98 is the total IRB owing for that period, plus interest. However, I intentionally do not express my award as a total figure because interest is due for each amount. Thus, I leave the calculations and the interest calculation to the parties.

c. Should the amount of IRB repayment be increased?

32Aviva submits that based on the Tribunal’s finding of a $326 per week IRB amount, the amount of the repayment should have been higher. Aviva reaches that conclusion by noting that the joint report calculated the $7,885.81 overpayment figure assuming P.R.’s weekly IRB amount is $400. Thus, if the base weekly rate should really have been $326 per week as found by the Tribunal, less post-accident income, and not $400 per week, then the repayment calculations are understated by about $74 per week ($400 less $326), and so the $7,885.81 figure needs to be recalculated to a higher amount.

33I disagree with this argument as $400 is the correct weekly rate accepted by the parties throughout, and both the Joint Report and RSM. As noted above, the $326 figure is not a weekly rate, and it was an error for the Tribunal to have relied on it.

d. Should the amount of IRB repayment be decreased?

34Having reviewed the calculations, I also find that the repayment figure of $7,885.31 is incorrect and should be decreased, based on a different calculation error that neither party caught.

35In theory, Aviva’s basic formula was correct: During the ‘period in question,’ P.R. was paid $24,788.39 in IRBs, but should have only been paid $16,903.08 for that same period, leaving an overpayment owing to Aviva of $7,885.31. The $16,903.08 figure was based on the Joint Report. The Tribunal found the Joint Report’s assumption that the Edge benefits were deductible to be correct.

36In practice, however, that formula was applied incorrectly, in that the figures are not based on the same ‘period in question.’ The Joint Report calculates what P.R. “should have been paid” to October 6, 2016, but Aviva uses a “was paid” figure to November 15, 2016, thus P.R. was never credited the amount that “should have been paid” from October 6, 2016 to November 15, 2016.⁵ I calculate that amount of income during that period between October 6, 2016 and November 15, 2016 as $692,⁶ such that the overpayment was only $7,193.31, and not $7,885.31.⁷

Did the Tribunal err in the application of the limitation period?

37Section 52 of Schedule limits an insurer’s entitlement to repayment to one year from the date of its notice, unless certain circumstances exist. In this case, Aviva argues that the Order provides conflicting statements at paragraphs 25, 47 and 73 about how that one-year period should be applied against the $7,885.31 (now $7,193.31) overpayment calculation.

38I dismiss Aviva’s argument for two reasons. First, while the Decision can be read as containing conflicting statements, the intention is clear that the Decision finds the one-year period extends only to November 1, 2015 – one year from Aviva’s letter notifying of the overpayment – and Aviva cannot secure overpayments prior to that period.

39Second, the Tribunal’s finding is, in any event, moot. Given that Aviva had already deducted the Edge benefits – and the Tribunal found that Aviva did so properly – no overpayment emanates from the time limited period. The overpayment is as result of P.R.’s post-accident employment that began in May 31, 2016.⁸ Thus, the limitation period has no effect on the calculations in this case.

CONCLUSION

40The Tribunal’s finding that P.R. suffered a substantial inability to preform his pre-accident employment until August 31, 2017 and that he is entitled to an IRB for that period remains undisturbed.

41Regarding the amount of the IRB, the correct weekly rate is $400 per week, less deductions for the Edge Benefits and P.R.’s post-accident income.

1. For the period from the accident until November 15, 2016, Aviva has overpaid the IRB and is entitled to repayment of $7,193.31, plus interest, rather than $7,885.31 as previously found by the Tribunal.

2. For period after November 15, 2016 to August 31, 2017, post-accident income shall be deducted per the formula in the Schedule, from the $400 weekly IRB, plus interest, as further described above.⁹

Footnotes

1. 1As explained below, because the Edge benefits were deducted at the time, the Tribunal’s finding regarding the limitation period appears to be a non-issue in this reconsideration.
2. 2See for example para. 65 of the Tribunal’s Order.
3. 3See Decision at paragraphs 68 and 73.ii.
4. 4Mr. Wollach’s April 6, 2018 report in a footnote to Schedule 1 (appearing on page 3) notes that the Joint Report which deducts the Edge payments, finds that the “should have been paid” number to be $16,093.06 – not the $2,5114 figure he used. Mr. Wollach’s earlier March 15, 2018 Report, at page 2, numbered paragraph 6 notes the same point.
5. 5See Exhibit 25 – Aviva’s Explanation of Benefits dated November 1, 2016 seeking an overpayment.
6. 6I calculate the $692 figure from Schedule 2 of the April 6, 2018 RSM Report. For the period beginning October 8, 2016 to November 13, 2016, RSM calculates that after post-accident employment, 3 payments of $116 and 2 payments of $172. I also note that, fortunately for ease of calculations, P.R. was not entitled to any IRB payment for periods including October 6 and November 15.
7. 7The calculation is ($24,788.39 paid) less ($16,903.08 and $692 should have been paid) leaves an overpayment of $7,193.31.
8. 8See page 6, at para. 32, of the Joint Account Report (aka. MDD/Expert Report of Katrian Zalenko, dated October 26, 2016).
9. 9While I leave that calculation to the parties, for illustration purposes only, I calculate that amount as $5,389.98, before interest.