M.I. v. Coseco Insurance Company, 2020 CanLII 37595

Citation: M.I. vs. Coseco Insurance Company, 2020 ONLAT 18-000742/AABS

Release Date: May 19, 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:

M.I.

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

M. I., Applicant

David S. Wilson, Counsel

For the Respondent:

Joseph Jin, Accident Benefit Specialist

Philippa Samworth, Counsel

Court Reporter:

Rose Uriega

Heard Via Combination Hearing:

In-Person Portion of the Hearing: January 14 & 15, 2019

Written Submissions made: February 1, 2019, February 22, 2019 and March 8, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on February 17, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

2The following issues are in dispute:

i. Does the Tribunal have jurisdiction to consider the insured's application for ongoing income replacement benefits given that, following a termination of benefits and commencement of an arbitration proceeding, the insurer agreed to reinstate payment of income replacement benefits (with interest)?

(i) If the Tribunal finds that it has jurisdiction to consider this issue, is the applicant entitled to receive an income replacement benefit in the amount of $399.00 per week for the period January 25, 2018 to date and ongoing?

ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

iv. Is the applicant entitled to costs under section 19 of the Tribunal's Common Rules of Practice & Procedure ("the Rules")?

FACTS

3The applicant was involved in the above-mentioned automobile accident. The applicant completed various forms to apply for accident benefits, including an income replacement benefit ("IRB").

4The applicant's IRB benefits were suspended, and eventually reinstated.

LAW

5The applicant relies on section 281 of the Insurance Act², which states that after the Tribunal has issued a decision, an insurer shall not reduce an insured person's benefits on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees, the insurer is authorized to do so as a result of a successful appeal to the Tribunal or if the insurer is authorized to do so by the Tribunal.

6The applicant also relies on Section 10 of Regulation 664³, which states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments to an insured person, the Tribunal may award a lump sum of up to 50 per cent of the amount to which the insured was entitled to at the time of the award with interest on all amounts then owing, including unpaid interest.

7The applicant relies on Rule 19 of the Tribunal's Common Rules of Practice & Procedure ("the Rules") regarding costs. Rule 19 states that a party who believes that another party is acting unreasonably, frivolously, vexatiously or in bad faith can request that the Tribunal award costs. This request can be made to the Tribunal in writing or be given orally at the Case Conference or Hearing, or at any time so long as it is before the decision or order is released.

8When considering if costs will be ordered and the amount, Rule 19.5 states the Tribunal will consider all relevant factors which include:

a. The seriousness of the misconduct;

b. Whether the conduct was in breach of a direction or order issued by the Tribunal;

c. Whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process;

d. Prejudice to other parties; and

e. The potential impact an order for costs would have on individuals accessing the Tribunal system.

9The alleged misconduct must have occurred during the proceeding, which, as defined by Rule 2.17 of the Rules, means the entire Tribunal process from the start of the appeal to the time the matter is finally resolved. However, a proceeding ends when there's a notice of withdrawal, all issues are resolved, or the Tribunal makes a decision after a hearing. Any alleged misconduct occurring before the application to the Tribunal cannot be considered when a party claims costs. Rather, that would be encompassed by a claim for a special award.

10Finally, costs amounts cannot exceed $1,000.00 for each full day of attendance at a motion, a case conference or hearing.

ANALYSIS

A. Jurisdiction of the Tribunal to consider the insured's application for ongoing income replacement benefits with interest

11The applicant requested that the Tribunal make an order for ongoing benefits after reinstatement. The applicant would like the Tribunal to make an order that the respondent must pay these benefits until the respondent receives an order from the Tribunal allowing them to cease paying the applicant these benefits.

12The applicant argues that section 281 of the Insurance Act is similar to the repealed section 287 of the current Act and argues that both rules have the same legislative intent, and therefore justifies the applicant's current application. The applicant directed the Tribunal to several FSCO cases based on section 287.

13During the hearing, the applicant was asked by the Tribunal under what legislative or statutory authority the Tribunal had the power to do so. The applicant noted that neither the current Rules nor the Schedule specifically allow for an application for the variation of an order, as was previously available under the Financial Services Commission of Ontario (FSCO) regime pursuant to section 287 of the Insurance Act (repealed on April 1, 2016).

14Instead, the applicant relies on section 281(2)(c) of the Insurance Act, which allows an insurer to reduce benefits "if the insurer is authorized to do so by the Licence Appeal Tribunal".

15However, the applicant was unable to direct the Tribunal's attention to anything beyond legislative intention. The applicant did not provide any current legislation or case law to base his arguments.

16The respondent highlighted this lack of caselaw on the part of the Tribunal, noting that section 281 of the Act does not have the intention stated by the applicant. The respondent argued that is why the applicant could not direct the Tribunal to any relevant caselaw, because none existed.

17Though the Tribunal does understand the applicant's frustration, when reading section 281 of the current Insurance Act, this section specifically deals with benefits after a decision from the Tribunal. This does not apply to the applicant's circumstances and cannot be considered. Further, the former section 287 of the Act never applied to the applicant since her accident happened in 2017.

18Therefore, the Tribunal does not have the jurisdiction to consider the insured's application for ongoing income replacement benefits with interest.

B. Award under Regulation 664

19The applicant claims entitlement to an award pursuant to s. 10 of Regulation 664. The applicant submits the respondent arbitrarily denied her income replacement benefit and withheld payment as a result.

20The respondent submits that Adjuster Jin acted properly in adjusting the file and continued to do so.

21The applicant submitted a Treatment Confirmation Form ("OCF-23"), dated February 17, 2017 by Chiropractor Mark Train. This document stated that Mr. Train believed the applicant should have been treated within the Minor Injury Guideline ("the MIG").

22The applicant also provided the respondent with a Disability Certificate ("OCF-3") completed by her family doctor, Dr. Jayarajha on March 2, 2017. The OCF-3 indicated that the applicant sustained injuries including anxiety, neck pain/whiplash, lower back pain, left shoulder pain, left side rib pain and headache.

23Dr. Jayarajha indicated that she had not arranged any follow up exams, investigations or consultations for the applicant or her injuries and noted her duration of disability as "12 weeks".

24The applicant's file was being adjusted by Joseph Jin, Accident Benefit Specialist, who became involved with her file as of April 7, 2017.

25Log notes provided by the respondent indicated that the applicant was made eligible for IRBs on April 7, 2017, with the intention of assessing the applicant via an Insurer Examination ("IE") near the end of May or early June 2017.

26Mr. Jin requested that the applicant and her counsel provide him with authorizations for obtaining medical records from the hospital that treated her after her accident as well as for the clinical notes and records from her family doctor for the last 5 years prior to her accident in April of 2017. Mr. Jin was in contact with counsel via email while adjusting the applicant's claim.

27David Wilson, the applicant's lawyer, offered to provide clinical notes and records for the 1-year period ending November 2017, which was agreed to by the respondent.

28The applicant submitted an OCF-18 Treatment and Assessment Plan by Chiropractor Dr. Leo Karabellas from Extra Care Rehab, dated May 12, 2017. This OCF-18 stated that the applicant's impairments were predominantly a minor injury as referred to in the MIG.

29The applicant was scheduled for an IE with Physiatrist Dr. Michael Ko to determine if she fell within the MIG and was entitled to IRBs. This IE took place on May 15, 2017. Dr. Ko noted that the applicant reported she had been diagnosed with depression post-accident. However, Dr. Ko also noted that the applicant had not received any treatment or referrals to a psychologist or psychiatrist.

30Dr. Ko's report found that the applicant's injuries fell within the MIG and that she did not meet the pre-104-week test for on-going IRBs. Based on this, the respondent terminated the applicant's IRBs on June 9, 2017 and placed her injuries within the MIG.

31During his testimony, Mr. Jin was asked why he didn't remove the applicant from the MIG, based on her diagnosis of depression. Mr. Jin stated that he was not given evidence to suggest that the applicant's depression was severe enough to remove her from the MIG. Mr. Jin noted that the applicant had not requested any form of treatment or referral from her family doctor or other practitioner to address said depression.

32The applicant filed a new OCF-18 treatment plan dated June 16, 2017 for treatment outside the MIG. This was also completed by Dr. Karabellas, the chiropractor. This time, Dr. Karabellas did not place the applicant's injuries within the MIG and requested funding beyond the MIG limits. The treatment provider, Extra Care Rehab provided Mr. Jin with a bone scan, a right ankle ultrasound and x-ray from the applicant.

33Based on this treatment plan and the additional imaging tests provided by the applicant's treatment provider, Mr. Jin requested an addendum from Dr. Ko, who authored the IE. Dr. Ko opined that the applicant was still within the MIG and was still able to return to work. Dr. Ko noted that the imaging tests provided by the applicant did not show any abnormalities consistent with the applicant's accident. The applicant also did not mention any issues with her right ankle during the IE itself.

34The applicant then made a request for a psychological assessment via an OCF-18 dated August 4, 2017. Mr. Jin set up another IE to determine the reasonableness of the treatment plan, if the applicant should remain in the MIG and if she had sustained a psychological disability that prevented her from working.

35A psychiatry IE was set up with Dr. Stanley Debow, Psychiatrist, and took place on September 5, 2017. Dr. Debow found that the applicant had issues of mixed anxiety and depressive disorder. However, he also found no evidence of a clinically significant marked distress that would be expected from the exposure to the accident. Dr. Debow also noted that the fact that the applicant's husband lost his job was contributing to her emotional issues. He concluded by finding no psychiatric impairment in the applicant, that she was able to work and remained within the MIG.

36Based on this information, Mr. Jin continued to deny the applicant benefits.

37Around September 19, 2017, Mr. Jin received the clinical notes and records from the applicant's family doctor for the period of time between February 2014 to June 2017. He also received the applicant's hospital records and ambulance call report. After reviewing these records, Mr. Jin concluded that the applicant's diagnostic tests found normal results, but she did report subjective complaints of pain post-accident.

38Mr. Jin then arranged for surveillance, which was reviewed on October 11, 2017. The surveillance report found that the applicant was using a cane while walking, and it appeared she had a legitimate injury.

39The respondent maintains that this ankle injury was not as a result of the accident, but rather, was an incidental finding. It relies on the above-mentioned reports of Dr. Ko. The respondent states that based on these reports, Mr. Jin had no basis to determine that the applicant's ankle issues were caused by her accident.

40The applicant submitted an additional treatment plan in November of 2017 for physiotherapy and additional treatment for her right ankle. These OCF-18s were submitted by [The General Assessment] and Denison Rehab. Mr. Jin denied these treatment plans based on the above-mentioned information, which stated that the applicant's injuries were not related to her accident and that her injuries placed her within the MIG.

41Mr. Wilson provided the respondent with the following documents on January 26, 2018:

i. Report from Dr. Joseph Wong, physiatrist, dated July 26, 2017;

ii. Functional Capacity Evaluation report by Atila Baliban, dated September 8, 2017;

iii. Report from Dr. Srinivasan, Psychiatrist, dated October 27, 2017;

iv. Report from Dr. Pushpa Kanagaratnam, psychologist, dated November 16, 2017; and

v. Report from Dr. C.J. Perkin, Orthopaedic Surgeon, dated November 24, 217.

42After receiving this information, Mr. Jin sought further IE addendums from Dr. Ko and Dr. Debow regarding the applicant's eligibility to be removed from the MIG or meet the eligibility test for IRBs.

43On February 1, 2018, before the IEs could be completed, the applicant filed her application at the Tribunal.

44Dr. Debow completed an addendum report on April 13, 2018. He concluded his opinion did not change, despite receiving the applicant's additional reports; the OCF-18 she requested for a psychiatric assessment was not reasonable and necessary.

45Dr. Ko also completed an addendum report, dated February 16, 2018. Dr. Ko concluded that after reviewing the additional evidence provided, the applicant still fell within the MIG. He also found that the applicant did not suffer from a substantial inability as a result of her accident.

46Mr. Jin decided to arrange a further IE for the applicant, in light of her report from an orthopaedic surgeon. This would be to determine if the applicant's ankle injury was as a result of her accident. Mr. Wilson declined to allow the applicant to attend the IE.

47In Approximately January 2018, Mr. Jin received the applicant's CNRs from Dr. Jayarajha for the 1-year period ending November 2017, as well as the CNRs from her treating psychologist, Dr. Srinivasan.

48After reviewing these additional documents with the applicant's earlier reports, Mr. Jin contacted Mr. Wilson via letter dated May 24, 2018. This stated that the applicant was removed from the MIG, that her treatment plans, except for the plan relating to her ankle, were approved, and that her IRBs were reinstated effective June 9, 2017. Mr. Jin had also cancelled the orthopaedic IE.

49Based on the above, I have determined that Adjuster Jin acted properly when adjusting the applicant's file. The applicant argues that her anxiety and panic disorder was disclosed in her OCF-3 disability certificate, and therefore her psychological concerns should have been explored. The applicant further argues that her chiropractor also pointed out psychological concerns.

50However, this evidence is counterbalanced by several factors; firstly, the applicant was originally placed in the MIG due to a form completed by her own chiropractor, Dr. Mark Train.

51Thought the applicant's OCF-3 did indicate that she had dealt with some anxiety, the applicant's family doctor did not arrange for any further follow up treatment of the applicant, indicating there was no general concern from her treating practitioner about her mental health based on the clinical notes and records that the respondent had access to.

52Based on the respondent's actions and arguments in this matter, I conclude that if Adjuster Jin had access to these notes and records before the application to the Tribunal, the applicant's income replacement benefits may not have been terminated.

53Secondly, the applicant failed to provide any clinical notes and records as evidence of her psychological injuries until January 2018. These notes were provided to the respondent after she filed her application to the Tribunal, at the end of January of 2018. By May 2018, the applicant had been removed from the MIG, most of her treatment plans had been approved and her IRBs were reinstated.

54Based on this, I cannot find any evidence that the respondent has unreasonably withheld or delayed payments to the applicant.

C. Interest

55The applicant is not entitled to any payment of benefits; therefore, she is also not entitled to any payment of interest on any overdue payment of benefits.

D. Costs

56The applicant has also applied for costs under rule 19 of the Tribunal's Rules. Rule 19 is not intended to compensate parties for suffering an inconvenience or for the costs of their involvement in a proceeding.

57Instead, costs are awarded to maintain civility and order during Tribunal proceedings, to deter conduct that threatens the orderly and civil resolution of an application, and to ensure the LAT and the disputing parties are treated respectfully.

58The applicant has asked for a liberal interpretation of the word "attendance" when interpreting rule 19 and have requested a total of $7,458.00 for preparing submission, preparing and attending a motion, preparing for and attending a case conference, attending a second motion, attending the in-person hearing and preparing written submission.

59I am not persuaded that the respondent has acted in an uncivil or disorderly manner during any of this application. The applicant has not presented any evidence to demonstrate that the conduct of the respondent that threatened or disturbed the orderly or civil resolution of this matter. Therefore, costs will not be awarded.

CONCLUSION

60Based on my reasons set out above, I find that:

i. The Tribunal does not have jurisdiction to consider the insured's application for ongoing income replacement benefits given that following a termination of benefits and commencement of an arbitration proceeding, the insurer agreed to reinstate payment of income replacement benefits (with interest).

ii. The respondent is not liable to pay an award under Regulation 664.

iii. The applicant is not entitled to interest on any overdue payment of benefits.

iv. The applicant is not entitled to costs under section 19 of the Rules.

Released: May 19, 2020

___________________________

Stephanie Kepman

Adjudicator

Footnotes

1. 1Reg. 34/10.
2. 2R.S.O. 1990, c. I.8
3. 3R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE