B.B. v. Aviva General Insurance Company, 2020 CanLII 12708

B.B. vs. Aviva General Insurance Company, 2020 ONLAT 18-006826/AABS

Citation: B.B. vs. Aviva General Insurance Company, 2020 ONLAT 18-006826/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:

B.B.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Appellant: Daniel Badre, Counsel Shane A. Dabros, Articling Student

For the Respondent: Alex Robineau, Counsel

Heard IN WRITING: May 27, 2019

OVERVIEW

1The applicant, B.B., was injured in an automobile accident on October 19, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva General Insurance Company (“Aviva”), the respondent.

2On July 25, 2018, B.B. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) following a dispute between the parties regarding B.B.’s entitlement to weekly income replacement benefits. The parties were unable to resolve the issues in dispute at the case conference and a written hearing was scheduled in this matter.

ISSUES IN DISPUTE

3Pursuant to the Tribunal’s January 7, 2019 Order, the following issues are to be decided:

(i) Is B.B. entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period of October 26, 2016 to January 7, 2019?

(ii) Is B.B. entitled to interest on any overdue payment of benefits?

(iii) Is B.B. entitled to an award under O. Reg. 664 because Aviva unreasonably withheld or delayed the payment of benefits?

PRELIMINARY ISSUE: B.B.’s claim for IRBs from January 7, 2019 and ongoing

4In his submissions, B.B. states, “although the issue in dispute is for the period up until January 7, 2019, [B.B.] has still not returned to work and is still entitled to an IRB. The amount of IRB owing from January 8, 2019 to the date of the hearing, May 27, 2019, is a total of 19 weeks, in the amount of $7,600.00.”¹

5Aviva made no specific submissions in response to B.B.’s claim for IRBs for the period of January 7, 2019 and ongoing.

6I find that any claim for IRBs beyond January 7, 2019 is not properly before me. The case conference in this matter was held on January 7, 2019. As such, B.B. had sufficient time before the hearing to bring a motion to allow Aviva a full opportunity to respond to his claim for IRBs beyond the time period set out in the Tribunal’s January 7, 2019 Order. It is highly prejudicial to Aviva for B.B. to significantly change his claim for IRBs in his written hearing submissions and, more importantly, it is not the appropriate way of modifying an issue in dispute which, in my opinion, requires an Order from the Tribunal.

7For all of these reasons, I am not prepared to determine B.B.’s entitlement to IRBs beyond January 7, 2019.

RESULT

8I find that B.B. is not entitled to weekly income replacement benefits for the period of October 26, 2016 to January 7, 2019. As a result, B.B. is not entitled to interest or an award and the application is dismissed.

ANALYSIS

Income Replacement Benefits (IRBs)

9In this matter, the parties disagree as to when B.B. submitted a completed disability certificate (OCF-3), which he is required to submit when applying for IRBs.² If an applicant fails to submit a completed OCF-3, he or she is not entitled to weekly IRBs for any period before the completed disability certificate is submitted.³

10Based on all of the evidence before me, I find that B.B. submitted a completed OCF-3 on April 9, 2018. I also find that B.B. failed to prove on a balance of probailities that he is entitled to IRBs for the period of April 9, 2018 to October 18, 2018. As a result, I find that B.B. is also not eligible for IRBs for any period after 104 weeks post-accident.

When did B.B. submit a completed OCF-3?

11B.B.’s position on when he submitted an OCF-3 dated October 31, 2016 is unclear. On one hand, B.B. submits that the OCF-3 was submitted on October 28, 2016.⁴ However, he later submits that the OCF-3 was submitted on November 23, 2016.⁵ Aviva’s position is that the October 31, 2016 OCF-3 was first submitted via email on April 9, 2018. Based on all of the evidence before me, and as explained in further detail below, I agree with Aviva and find that B.B. submitted a completed OCF-3 on April 9, 2018. Therefore, B.B. is not eligible to receive IRBs prior to this date.

12The following facts are undisputed in this matter:

(i) at the time of the accident, the vehicle that B.B. was travelling in was insured by RBC Insurance (“RBC”) and the initial claims adjuster that handled B.B.’s file was Aekta Patel (“Patel”) of RBC;

(ii) on October 28, 2016, B.B.’s counsel’s office faxed B.B.’s completed application for accident benefits (OCF-1) to Patel;

(iii) on November 2, 2016, B.B.’s counsel’s office faxed B.B.’s completed employer’s confirmation form (OCF-2) to Patel;

(iv) B.B.’s file was transferred from RBC to Crawford and Company (“Crawford”), an independent adjusting firm acting on behalf of Aviva, on either November 2 or 3, 2016. Jason Saucier (“Saucier”) of Crawford became the handling adjuster for B.B.’s file;

(v) Saucier wrote two letters to B.B. both dated November 3, 2016 explaining the transfer of B.B.’s file. In his correspondence, Saucier:

(a) acknowledged receipt of the OCF-1;

(b) outlined B.B.’s right to claim IRBs and noted that a completed OCF-3 and OCF-2 were required;

(c) requested that B.B. ensure that all correspondence be sent to his attention and provided his contact information;

(d) confirmed that any correspondence that is not delivered to Saucier’s attention shall not be considered to have been delivered until it is received by Saucier which, although not specifically referred to by Saucier in his correspondence, is in accordance with s. 64(21) of the Schedule; and

(e) included a blank OCF-2 and OCF-3.

13Aviva asserts, and I accept, that a follow-up letter was sent by Saucier to B.B. and his counsel on November 21, 2016 via fax that acknowledged receipt of a completed OCF-2 but that also made clear that a completed OCF-3 was still outstanding. Again, a blank OCF-3 was included in this correspondence.

14B.B. has submitted as evidence an OCF-3 that was completed by Jan Babcock, physiotherapist with Trainyards Family Medical Centre (“Trainyards”), dated October 31, 2016 that was signed by both Babcock and B.B. There is a stamp on the first page of this document at the top marked, “FAXED Nov 23 2016.” The insurance company listed on this OCF-3 was RBC and the name of the insurance company representative was listed as Patel. No cover page to this fax was submitted as evidence by B.B.

15B.B. submits that the stamp on the front page is evidence that the OCF-3 was faxed to Patel on November 23, 2016. To support his position, B.B. submitted an undated letter from Dr. Marjorie Drolet, chiropractor at Trainyards, setting out the clinic’s facsimile practices. Dr. Drolet explained that their fax machine does not provide confirmation pages when a fax is successfully sent and that a page is only printed by the machine when a fax has not been sent successfully. Dr. Drolet further explains, “if there is no print out the fax has successfully been sent and the sender would stamp the pages as FAXED and enter the date within the FAXED stamp.”

16I find that there is no evidence before me that the October 31, 2016 OCF-3 was submitted on October 28, 2016, as first argued by B.B. Additionally, this suggested date of submission pre-dates the date of the OCF-3, a discrepancy which B.B. failed to reconcile in his submissions or evidence. As such, I do not accept that the OCF-3 was submitted on October 28, 2016.

17I also find that B.B. failed to prove on a balance of probabilities that the October 31, 2016 OCF-3 was submitted on November 23, 2016 for the following reasons:

(i) The OCF-3 had no covering fax page and, as a result, fails to comply with s. 64(19) of the Schedule;

(ii) Without a covering page, there is no information what fax number the OCF-3 was allegedly sent to, to whom it was sent, or even who sent it. Further, the lack of a cover page is questionable, as a later fax from Trainyards submitted as evidence by Aviva included a fax cover page by Trainyards indicating the person the fax was being sent to, the sender’s name, the date that it was sent, and the fax number of the recipient;⁶

(iii) Wanda Crosby, law clerk at Badre Law Professional Corporation (“Badre Law”), B.B.’s counsel’s firm, confirmed via email to Saucier on April 6, 2018, that B.B. “provided an OCF-2 and the Application.” There is no mention in this email that the October 31, 2016 OCF-3 was provided;⁷

(iv) Crosby emailed Saucier again on April 9, 2018, indicating that the October 31, 2016 OCF-3 was provided to Saucier on January 23, 2017.⁸ This statement by Crosby further supports my finding that the OCF-3 was not submitted on November 23, 2016 as alleged. I also do not accept B.B.’s submission that Crosby “mistakenly” wrote January 23, 2017 in her email as there is no evidence from Crosby to support this submission; and

(v) I place little weight on Dr. Drolet’s undated letter because it is unclear if she was speaking to the practices currently in place at Trainyards regarding faxes or that were in place when the October 31, 2016 OCF-3 was allegedly faxed. B.B. submits that, “Dr. Drolet’s facsimile practices at Trainyards Medical Centre have not changed,” in reply but there is no evidence before me to support this position.

18As a result of my finding that the OCF-3 was not faxed to Patel on November 23, 2016 as alleged by B.B., I therefore give no weight on B.B.’s numerous submissions that it was Saucier’s responsibility to obtain the fax from Patel – Saucier could not have obtained it from Patel if it was never faxed to her on November 23, 2016.

19Even if I did accept that the fax was sent as alleged by B.B. to Patel on November 23, 2016, which I do not, then I would find in the alternative that B.B. failed to comply with s. 64(21) of the Schedule as the OCF-3 was not sent to Saucier’s attention. Saucier clearly provided his contact information to both B.B. and his counsel on November 3, 2016 and, pursuant to s. 64(21) of the Schedule, the OCF-3 is not delivered until it is received by Saucier.

20I also do not accept B.B.’s argument that because the OCF-3 was signed and dated prior to Saucer’s correspondence advising that he was the new contact person for B.B.’s file that this somehow negates B.B.’s obligation to send the OCF-3 to Saucier. At stated above, even if I accept that the OCF-3 was sent by fax on November 23, 2016 to Patel, the OCF-3 would have been submitted after Saucier’s notice. Therefore, B.B. was required to deliver documents to Saucier at the time the OCF-3 was allegedly sent via fax pursuant to s. 64(21) of the Schedule.

21I also find B.B.’s position that the OCF-3 was faxed to Patel as opposed to Saucier untenable based on other evidence before me. For instance, Saucier received a Treatment Confirmation Form from Trainyards prior to November 23, 2016.⁹ This indicates to me that Trainyards was aware that documents were to be delivered to Saucier as opposed to Patel prior to the OCF-3 allegedly being faxed to Patel on November 23, 2016.

22I also accept that Saucier made a third request for an OCF-3 from B.B. on December 19, 2016 under s. 33(1) of the Schedule. B.B.’s counsel concedes in submissions that it received the October 31, 2016 OCF-3 from Trainyards on January 23, 2017.

23B.B.’s submissions are inconsistent as to what next occurred with the October 31, 2016 OCF-3. On one hand, B.B. submits that once his counsel received the OCF-3 from Trainyards that, “there was no need to follow up with the correspondence sent by Jason Saucier.”¹⁰ In reply, however, B.B. argued that his counsel’s firm, “provided another email dated January 23, 2017 to Mr. Saucier attaching an OCF-3 dated October 31, 2016 that was sent by Trainyards.” Aviva included a copy of a document faxed to B.B.’s counsel dated January 23, 2017 that included the October 31, 2016 OCF-3. I do not agree with B.B., however, that there is any evidence before me that this document was ever sent to Saucier or to anyone else at Aviva or Crawford on January 23, 2017. This finding is supported by the evidence of Saucier’s further April 27, 2017 correspondence to B.B. which noted that B.B. failed to comply with his December 19, 2016 request for information. Therefore, I do not accept that the October 31, 2016 OCF-3 was submitted on January 23, 2017 as also alleged by B.B.

24I find that Aviva received the October 31, 2016 OCF-3 on April 9, 2018 via email from Crosby as this email was addressed to Saucier and he responded to it on April 18, 2018. Therefore, I find that B.B. is not eligible to receive IRBs prior to April 9, 2018 as his application for IRBs was not completed until this date.

Entitlement to IRBs within 104 weeks of the accident (April 9, 2018 to October 18, 2018)

25B.B. is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident.

26The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule and is often referred to as the “substantial inability test.” An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident.

27In his reply submissions, B.B. conceded that the substantial inability test is a requirement for eligibility for IRBs but then argued that a determination as to IRB entitlement was “beyond the scope of the LAT hearing” pursuant to the Tribunal’s January 7, 2019 Order as the only issue in dispute was the period of IRB entitlement.

28I disagree. The issue in dispute in the January 7, 2019 Order was set out as follows:

Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period [of] October 26, 2016 to January 7, 2019 (my emphasis added)?

29It is clear to me from the issue as framed in the Order that entitlement to IRBs is in dispute in this matter. This finding is also supported by submissions made by Aviva regarding B.B.’s IRB entitlement. Therefore, I find that B.B. bears the burden of proving on a balance of probabilities that he is entitled to IRBs in this matter for the period of April 9, 2018 to October 18, 2018.

Essential tasks of B.B.’s pre-accident employment

30I accept that, at the time of the accident, B.B. was employed by the [the Federal Government] as a call centre agent. From the work description form attached to the OCF-2, I find that the essential tasks of B.B.’s pre-accident were as follows:

(i) Prolonged periods of sitting;

(ii) Prolonged visual effort to use a computer and to read internal documents;

(iii) Exposure to computer screen glare;

(iv) Required sustained attention to listen to enquiries and explanations, to identify recovery sources and to negotiate payment arrangements;

(v) Use of a telephone and headset to handle phone calls;

(vi) Use of a keyboard to perform data entry;

(vii) Potential exposure to aggressive behaviour and public criticism due to frequent dealings with taxpayers and their representatives; and

(viii) Exposure to noise due to an open office environment.

Substantial inability to perform the essential tasks of B.B.’s pre-accident employment

31I find that B.B. failed to prove on a balance of probabilities that he was substantially unable to perform the essential tasks of his pre-accident employment because:

(i) B.B. submitted two OCF-3s, one dated October 31, 2016, which was completed by Ms. Babcock, and the other dated April 10, 2018, which was completed by Dr. Drolet. Although both OCF-3s indicate that B.B. was substantially unable to perform the essential tasks of his employment at the time of the accident, I give little weight to both documents as it is well established that an OCF-3 alone is not enough to establish entitlement to IRBs. Additionally, the October 31, 2016 OCF-3 significantly pre-dates the period in dispute and, therefore, is of little assistance in determining B.B.’s entitlement to IRBs. Further, no evidence was provided that demonstrated that Dr. Drolet had any knowledge of the essential tasks of B.B.’s pre-accident employment as she did not indicate B.B.’s job title or employer, and only noted “office work – work with computer” on the April 10, 2018 OCF-3;

(ii) While B.B. submitted a November 21, 2017 report following a MRI of his lumbar spine that showed small disc protrusions at the L4-L5 levels abutting the descending bilateral L5 and the right descending S1 nerve roots, respectively, which noted “possibly causing irritation,” and no spinal canal narrowing, there is nothing in the report that assists in determining how any of these findings impacts B.B.’s ability to carry out the essential tasks of his employment;

(iii) B.B. also submitted a March 15, 2018 Insurer’s Examination (IE) Medical Physician Assessment Report completed by Dr. Joshua Abiscott, physician.¹¹ Although Dr. Abiscott noted that B.B. reported that all of his accident-related symptoms resolved except for low back pain,¹² the only information noted regarding his pre-accident employment was “computer office work for the government.” As such, I find that there is no information in this report that Dr. Abiscott had any detailed information about the essential tasks of B.B.’s pre-accident employment and there is no discussion or analysis as to why B.B.’s reported low back pain would have rendered him substantially unable to perform the essential tasks of his pre-accident employment at the time of Dr. Abiscott’s assessment which also pre-dates the period in dispute; and

(iv) I give very little weight to the July 6, 2018 Medical Note signed by psychologists Natasha Gosselin and Natasha Ballen. Even though the note indicates that B.B.’s psychological symptoms remain in the severe range and continue to have a very severe impact on his occupational functioning, there is no mention of the accident at all in this one-paragraph note. As a result, B.B.’s psychological complaints or impairments that are allegedly impacting his occupational functioning are not attributed to the accident in this note.

Entitlement to IRBs beyond 104 weeks of the accident (October 19, 2018 to January 7, 2019)

32Because I have found that B.B. is not entitled to IRBs within 104 weeks of the accident, B.B. is not eligible for IRBs for any period following 104-weeks post-accident.¹³

33Even if I am incorrect that one’s entitlement to an IRB in the post-104 period is predicated on his or her eligibility for an IRB in the period before, I find that B.B. has failed to prove on a balance of probabilities that he was completely unable to engage in any employment for which he is reasonably suited by education, training or experience¹⁴ for the period of October 19, 2018 to January 7, 2019. I agree with Aviva that there is no evidence before me of B.B.’s level of education, training or past work experience which is required for any analysis to be undertaken for entitlement to IRBs in the post 104-week accident period.

34Based on all of the reasons set out above, B.B. is not entitled to IRBs for the period of October 19, 2018 to January 7, 2019.

Interest

35As I have found that S.B. is not entitled to IRBs, there is no overdue payment of benefits and, therefore, no interest is payable.

Award

36Section 10 of O. Reg. 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

37I find that B.B. is not entitled to an award as there no benefits owing in this matter.

CONCLUSION

38For the reasons outlined above, I find that:

(i) B.B. is not entitled to weekly IRBs for the period of October 26, 2016 to January 7, 2019;

(ii) B.B. is not entitled to interest or an award; and

(iii) This application is dismissed.

Footnotes

1. 1Written Submissions of the Applicant, para. 43.
2. 2Section 32(2) of the Schedule.
3. 3Sections 36(1) and 36(3) of the Schedule.
4. 4Written Submissions of the Applicant, para. 7.
5. 5Written Submissions of the Applicant, para. 9. These dates are also contrary to the information on B.B.’s application which lists the date of submission as February 5, 2016, which is clearly incorrect as this date pre-dates the accident.
6. 6Document Brief of Aviva, tab 26.
7. 7Document Brief of Aviva, tab 24.
8. 8Document Brief of Aviva, tab 25.
9. 9See the correspondence from Saucier to B.B. dated November 23, 2016, Document Brief of Aviva, tab 8.
10. 10Written Submissions of the Applicant, para. 22.
11. 11Written Submissions of the Applicant, tab 12.
12. 12Ibid. at page 3.
13. 13See D.W. v. The Co-operators, 2018 CanLII 8092 (ON LAT) at para. 17.
14. 14Section 6(2)(b) of the Schedule.