J.R. v. Certas Home and Auto Insurance Company, 2020 CanLII 30367

Citation: J.R. vs. Certas Home and Auto Insurance Company, 2020 ONLAT 18-007677/AABS

Date: March 25, 2020

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:

[J.R.]

Appellant(s)

and

Certas Home and Auto Insurance Company

Respondent

DECISION AND ORDER

PANEL:

Karina Kowal, Adjudicator

APPEARANCES:

For the Applicant:

Nader Fathi, Paralegal

For the Respondent:

Kevin Motley, Counsel

HEARD:

In Writing on: May 2, 2019

OVERVIEW

1JR (“the applicant) was injured in an automobile accident on August 24, 2016 (“the accident”) and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the “Schedule”). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) after the respondent denied his claims for benefits.

2The respondent denied the applicant’s claims because it determined that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline (“the MIG”). The applicant’s position is the opposite.

ISSUES IN DISPUTE

3The following issues in dispute were ordered to be determined at this written hearing:

1. Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and, therefore, subject to the Minor Injury Guideline?

2. Is the applicant entitled to a medical and rehabilitation benefit for medical and rehabilitation treatment in the amount of $116.40 ($$2,665.75 less $2,549.35 approved) as set out in a treatment and assessment plan (OCF-18) dated June 7, 2018 recommended by Promed Rehabilitation Clinic and denied by the respondent on July 20, 2018¹?

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

RESULT AND ORDER

4I find that:

1. The applicant’s injuries are considered predominantly minor injuries as defined by the Schedule and, therefore, are subject to the Minor Injury Guideline.

2. Without submissions or evidence from either party regarding the denied items of the treatment plan in dispute in the amount of $116.40 ($2,665.75 less $2,549.35 approved, dated June 7, 2018 from Promed Rehabilitation Clinic and denied by the respondent on July 20, 2018), I have determined that the balance of the treatment plan is payable, with the caveat that the applicant still has available funds within the Minor Injury Guideline in the same amount.

3. I have determined that the balance of the treatment plan is payable within the monetary confines of the Minor Injury Guideline. If the balance in dispute ($116.40) has been incurred, then interest is payable.

4. I have granted the respondent’s request to add the issue of costs. Further to this, the applicant shall pay the respondent the total amount of $500.00.

DISCUSSION

A: DATE OF LOSS

Applicant:

5In the opening paragraph of the applicant’s written submissions, he identifies the date of loss as August 9, 2019, a date after the parties filed their submissions. In the second paragraph, the applicant submits that the date of loss is August 9, 2017.

Respondent:

6The respondent confirms that the date of loss was August 24, 2016, which is the matter under this application. It also submits that a second accident occurred on August 9, 2017, however the parties settled the claims arising from the 2017 accident on a full and final basis.² The respondent also submits that continuous references to the 2017 date of loss persist throughout the applicant’s submissions, and this cannot be blamed on a mere typographical error.

Reasons:

7Even if the applicant had made multiple typographical errors in reporting the date of loss in his submissions, I find as follows:

1. The August 24, 2016 date of loss is the one at issue in this application, confirmed by the Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act, filed by the Applicant with the Tribunal on August 17, 2018, and the applicant’s report of the accident to the insurer on September 6, 2016³ confirming this date of loss.

2. The August 9, 2017 date of loss has been settled on a full and final basis and the Tribunal does not have jurisdiction over this accident.

B: ISSUES IN DISPUTE

Applicant:

8The applicant lists the following issues in dispute in his submissions:

1. Are the applicant’s injuries outside of the Minor Injury Guideline?

2. Is the applicant entitled to the cost of equipment and massage services in the amount of $690.00 pursuant to a treatment and assessment plan (OCF-18) dated September 28, 2017 completed by MacKenzie Medical Rehabilitation?

3. Is the applicant entitled to the cost of chiropractic and massage services in the amount of $1,977.05 pursuant to a treatment and assessment plan (OCF-18) dated November 28, 2017 completed by MacKenzie Medical Rehabilitation?

4. Is the applicant entitled to the cost of chiropractic and documentation services in the amount of $1,765.20 pursuant to a treatment and assessment plan (OCF-18) dated November 21, 2017 completed by Promed Rehabilitation Clinic?

5. Is the applicant entitled to the cost of a psychological assessment in the amount of $2,200.00 pursuant to a treatment and assessment plan (OCF-18) dated December 5, 2017 completed by Promed Rehabilitation Clinic?

6. Is the applicant entitled to the cost of psychological treatment in the amount of $1,995.33 pursuant to a treatment and assessment plan (OCF-18) dated December 13, 2017 completed by Promed Rehabilitation Clinic?

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

Respondent:

9The respondent submits that the applicant has made several fundamental factual and procedural errors in his written submissions. It submits that the issues in dispute that the applicant presents are related to the August 9, 2017 accident, which have been settled on a full and final basis and, secondly, that those issues were not part of the case conference report and order leading to this hearing.

Reasons:

10With respect to the issues in dispute, I agree with the respondent in that the Tribunal must have jurisdiction to decide the issues in dispute. The issues in dispute must be related to the accident in dispute, which is August 24, 2016, confirmed by the date on the “Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act” filed for by the applicant initiating this process. The issues in dispute are those listed, agreed to and ordered in the Tribunal’s case conference order from February 7, 2019.

11Setting aside the fact that the applicant discusses the 2017 accident throughout his submissions, and may have filed incorrect documents, he did have the right of reply and opportunity to correct this error, which he did not do. From the perspective of procedural fairness, the only issues that the applicant identifies that mirror those of the case conference report and order are as follows:

1. Are the applicant’s injuries outside of the Minor Injury Guideline?

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

12However, as the parties agreed to the issues in dispute as outlined in the case conference report and order by Adjudicator Boyce from February 7, 2019, I will also address the treatment plan in dispute based on any evidence and submissions provided by the parties.

C: TIMELINESS OF SUBMISSION OF THE TREATMENT PLAN

Applicant:

13The applicant does not address the treatment plan in dispute, its submission or provide any evidence its this regard.

Respondent:

14The treatment plan in dispute for the August 24, 2016 accident was submitted on June 7, 2018, after the August 9, 2017 accident. The respondent submits that any treatment plans submitted after the second date of loss (August 9, 2017) are attributable to the 2017 claim, and as all claims arising from the 2017 date of loss had been settled on a full and final basis, the applicant should have used the settlement monies to fund any required treatment.

15Nonetheless, the respondent states that the treatment plan in dispute dated June 7, 2018 in the amount of $2,665.75 was partially approved on July 20, 2018 in the amount of $2,549.35 on a good faith basis, leaving a shortfall of $116.40.

Reasons:

16The respondent does not comment or provide evidence as to which items of the treatment plan were not approved and for what reason. I also do not have any submissions from either party on whether there is monetary availability under the Minor Injury Guideline.

17Without this evidence, I am making the default assumption that the applicant is being maintained within the Minor Injury Guideline. I am relying on the following section of the Schedule:

Duration of medical, rehabilitation and attendant care benefits

20. (1) Subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,

(a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident;

18The applicant has a five-year window from the date of loss to incur medical rehabilitation expenses (to August 24, 2021), unless he settles the claim. The respondent received and approved the majority of the treatment plan in dispute after the settlement of the August 9, 2017 accident. Without submissions or evidence from the respondent regarding the denied items of the treatment plan, I am finding the balance of the treatment plan payable, with the caveat that the applicant still has available funds within the Minor Injury Guideline in the same amount.

D: MINOR INJURY GUIDELINE

19Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.” The Schedule also defines what these terms mean.

20Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

21Section 18(2) indicates that the Minor Injury Guideline does not apply if the insured’s health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident which will prevent him from achieving maximal recovery by being limited to the goods and services authorized under the Minor Injury Guideline.

22The onus is on the applicant to show that his/her injuries fall outside of the MIG.

Applicant:

23In the applicant’s submissions, he outlines that he suffers from various pre-existing injuries, such as a slip and fall in 2014 that caused a twisted right ankle and multiple abrasions on his right elbow and left knee.⁴ The applicant’s family doctor also noted a diagnosis of dyslipidemia and advised the applicant to lose weight.⁵

Respondent:

24The respondent contends that “the applicant did not suffer any injuries as a result of the 2016 accident and he failed to adduce any evidence or make any arguments to the contrary. He also failed to prove any causal connection between the 2016 accident and any ongoing physical or psychological complaints”.

25The respondent submits that the applicant’s examinations under s. 25 (examination for the insured person) and s. 44 (insurer examinations), along with his Examination Under Oath confirm this position as follows:

1. The applicant did not report the 2016 accident to his family doctor. In his s. 25 assessments with Dr. Romeo Vitelli,⁶ he reported that he had no significant medical history before the 2017 accident and was independent in completing chores.

2. In a s. 44 Occupational Therapy report,⁷ the author noted that the applicant “reported having a minor ‘small’ accident in 2016…he did not require any treatment…he denied having any medical conditions.”

3. In his s. 44 Physiatry⁸ and Psychology Assessments,⁹ the applicant confirmed he was involved in a 2016 accident “but did not suffer any injuries.”

4. In his Examination Under Oath,¹⁰ the applicant confirmed that he did not require treatment as a result of the 2016 accident. The applicant was also unable to explain why he only applied for benefits for the August 2016 accident until May 2018.

Reasons:

26The applicant appears to rely on s.18(2) of the Schedule, in providing evidence of a pre-existing medical condition that was documented by a health practitioner before the accident which will prevent him from achieving maximal recovery by being limited to the goods and services authorized under the Minor Injury Guideline ($3,500.00).

27The applicant did not show how the twisted right ankle from 2014 or diagnosis of obesity has prevented him from achieving maximal recovery by being limited to the goods and services authorized under the Minor Injury Guideline.

28The applicant submitted evidence regarding his work function, at home function, and psychological function (same reports by Dr. Vitelli and Dr. Kirsh) prepared for the purpose of the August 9, 2017 accident. Other documents included were from Dr. Wellington Wong’s clinical notes and records, treatment plans from MacKenzie Medical Rehabilitation and Promed Rehabilitation Clinic, which are not in dispute under this application. I have reviewed these documents with respect to references to impairments for the period prior to August 9, 2017.

29More interestingly, in the applicant’s own submissions, and by the applicant’s own admission in the Examination Under Oath, in 2016 he was involved in a minor motor vehicle accident and that he did not require treatment as a result of the 2016 accident.

30The applicant relied on Dr. Wellington Wong’s clinical notes and records as evidence referencing a pre-existing history of a slip and fall in 2014 and a diagnosis of obesity and dyslipidemia. The applicant did not visit his family doctor after the August 24, 2016 accident until December 18, 2016 but did not report this accident or any accident-related impairments. In the applicant’s submissions, there is no evidence supporting the requirement of rehabilitative treatment, let alone the requirement for treatment outside the Minor Injury Guideline with respect to the 2016 motor vehicle accident. The applicant has not shown how the twisted right ankle from 2014 or diagnosis of obesity which will prevent him from achieving maximal recovery by being limited to the goods and services authorized under the Minor Injury Guideline.

31The applicant has failed to show any compelling evidence that there was a pre-existing medical condition that was documented by a health practitioner before the accident, that will prevent maximal medical recovery within the $3,500.00 minor injury limit with respect to the 2016 accident. In this regard, pursuant to s.18(2), I reject removing the applicant from the Minor Injury Guideline on a pre-existing condition.

E: INTEREST

Applicant

32The applicant has requested that interest be payable. He did not provide any reasons behind his request.

Respondent:

33The respondent submits that the applicant is not entitled to interest as all benefits were properly denied.

Reasons:

34I have found the balance of the treatment plan to be payable within the confines of the Minor Injury Guideline. If the balance in dispute ($116.40) has been incurred, then interest is payable.

F: COSTS

Respondent:

35In its hearing submissions, the respondent has requested to add costs pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”) on the basis that it believes the applicant has acted unreasonably, frivolously, vexatiously or in bad faith in the proceeding.

36It submits that the applicant failed to report the 2016 accident until he received settlement funds for the 2017 accident. The applicant attempted to deceive the respondent as to the source and nature of his injuries, which were entirely sustained in the 2017 accident.

37The applicant has attempted to confuse and deceive the Tribunal in order to re-litigate his fully-settled claim in relation the 2017 accident.

Applicant:

38The applicant was provided an opportunity to make reply submissions and address the procedural matter of addition of costs to the hearing, as well as its merits. The applicant failed to submit a written reply.

Reasons:

39In reviewing the respondent’s evidence, I find that the applicant did indeed report the August 24, 2016 accident to his insurer on September 6, 2016,¹¹ so the respondent was aware of the accident in a timely manner. I do not find any evidence of attempting to deceive the respondent as to the source and nature of his injuries. In fact, the respondent discussed his injuries in insurer examinations (s. 44) as well as reports for the insured (s. 25) directly with the assessors regarding both accidents.

40In the absence of the applicant’s reply, I considered the totality of the applicant’s pattern of behaviour during the course of the hearing process. I do not find anything untoward up to and including the date of the case conference. However, it is clear that the applicant made submissions regarding a date of loss and issues that were clearly no longer dispute, on claims arising from an accident which had already been settled.

41I find that the applicant’s attempt to relitigate settled claims was unreasonable and frivolous conduct that wasted time and resources. This resulted in an unnecessary use of resources for the Tribunal as well as the respondent by having to address submissions not actually in dispute. If the submissions and associated evidence was indeed provided in error, the applicant should have contacted the respondent directly, as well as the Tribunal, and rectified the error and provided submissions and evidence regarding the correct date of loss. The applicant also had the right of reply, in which he could have addressed the error. Again, however, he provided no clarification, leaving the insurer and, ultimately, me to resolve the confusion he created.

42I am granting the respondent’s request to add the issue of costs to the hearing.

43Pursuant to Rule 19.6 of the ‘Rules’, costs shall not exceed $1000.00 for each full day of attendance at a motion, case conference or hearing. In balancing that I found no untoward behaviour until after the case conference, that no in person appearance was required and that all issues subject to costs arose in the course of the written hearing.

44If the applicant had provided submissions on the correct date of loss or had contacted the Tribunal to correct the issue (or at least addressed the issue in a reply), the respondent would have had to provide submissions nonetheless. As such, I am not granting costs equal to the amount of a full day of preparing for a written hearing. I am granting relief for a half day of a written hearing to offset addressing issues that would not have had to be dealt with, should the matter have been dealt with in accordance with the Tribunal’s Case Conference Report and Order dated February 7, 2019 for this application.

45I find that costs are payable pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure in the amount of $500.00.

Released: March 25, 2020

___________________________

Karina Kowal

Adjudicator

Footnotes

1. 1OCF 18 submitted by respondent in the amount of $2,665.75 dated June 7, 2018, denied by adjuster July 20, 2018
2. 2Full and final settlement dated May 10, 2018 for MVA August 9, 2017.
3. 3Accident Support Services International Ltd. -pg.1
4. 4CNR’s July 22, 2014 Dr. Wellington Wong- family doctor.
5. 5CNR’s March 24, 2017 Dr. Wellington Wong- family doctor.
6. 6Psychological Assessment Dr. Romeo Vitelli- November 11, 2017, pg. 1, 4 and 5
7. 7Occupational Therapy Assessment – Melanie Robbins – January 29, 2018- pg. 5
8. 8Physiatry Assessment -Dr. Alfonse Marchie- January 29, 2018- pg. 5
9. 9Psychiatry Assessment- Dr. Brian Kirsh- March 22, 2018- pg. 7
10. 10Examination Under Oath- conducted November 2, 2018 and January 17, 2019
11. 11Accident Support Services International Ltd. – pg. 1