J.T vs. The Personal, 2019 ONLAT 18-001853/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:
JT
Applicant
and
The Personal
Respondent
DECISION
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Joanna Wojcik, Counsel
HEARD:
In Writing on: November 19, 2018
OVERVIEW
1The applicant, JT, was involved in a motor vehicle accident on June 19, 2016. As a result, she sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, The Personal, denied her claim.
ISSUES
2The issues in dispute are:
Is JT entitled to an income replacement benefit (IRB) of $400.00 per week from July 19, 2016 to date and ongoing?
Is The Personal liable to pay an award under Regulation 664, Automobile Insurance2 (“Regulation 664”) because it unreasonably withheld or delayed payments to JT?
Is JT entitled to interest on any overdue payment of benefits?
RESULT
3JT is not entitled to IRBs. Her appeal is denied; accordingly no interest is owing to her and there is no basis for an award.
REASONS
Issue 1: IRB
4The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.
5JT described her injuries and submitted medical evidence with respect to her eligibility for IRBs. JT’s evidence is:
i. A Disability Certificate (“OCF-3”) completed by Dr. Wlodek Witt on July 19, 2016 indicated that she is substantially unable to perform the essential tasks of her employment as a result of the accident and is unable to return to work on modified hours and duties.
ii. A Disability Certificate completed on October 5, 2016 by Dr. Warsame, which JT says indicated that JT was substantially unable to perform the essential tasks of her employment as a result or the accident and is unable to return to work on modified hours and duties.
iii. Psychological Assessment by Dr. John Lee, psychologist, completed on April 11, 2017 reporting that JT has difficulties with prolonged sitting.
iv. A clinical note from Dr. Warsame dated September 19, 2018 reports that she is recommended to stay off work due to ongoing knee and back injury pain.
6JT’s submissions and evidence provide me with no information about her pre-accident employment, the nature of her employment (type of work) or any analysis of how or why she is impaired from performing it.
7JT made no submissions as to her pre-accident income.
8JT did not reply to The Personal’s assertions with respect to her ability to work or her income.
9I find that JT has not met the onus on her to prove that she is entitled to IRBs. My reasons are:
i. JT’s submissions fall well short of the argument and analysis I would expect in support of a claim for ongoing IRBs. Neither her submissions nor the medical reports appended to them provided any description of her work-related duties. Without this, I cannot assess the value of medical evidence provided by her or the likely impact of her injuries on her ability to work.
ii. The OCF-3 from Dr. Warsame indicates, contrary to JT’s submissions, that she could [emphasis mine] return to work with modified duties as of the date of the form. The recommendation by Dr. Warsame for JT to stay off of work was made in September 2018 – more than 2 years post-accident. JT has not provided any evidence or explanation for this discrepancy. The unexplained discrepancy between these pieces of evidence leads me to query whether the latter recommendation arose from medical issues unrelated to injuries sustained in the accident.
iii. JT fails to provide any information about her pre-accident employment income. She also fails to address the impact of paid maternity leaves3 noted in both parties’ evidence on the quantum of IRBs. She fails to note that she did return to work for periods of time following the accident, as indicated in employment records furnished by The Personal. She does not contest any of The Personal’s assertions with respect to these factors. As a result, I am unable to determine that she is entitled to any amount of IRBs: JT simply has not proven her case.
10JT did not prove that she meets the criteria for IRBs. Even if she had done so, she failed to provide any information with which I could determine the amount of IRB entitlement. Accordingly, I deny her appeal for IRBs
Award
11JT did not include an award in her list of disputed issues in her submission. The issue is effectively withdrawn.
CONCLUSION
12JT’s appeal is denied.
Released: April 23, 2019
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
- Taken and paid during the time JT claims entitlement to IRBs. The Personal argues that these are deductible.