A. T. v. TD Insurance Meloche Monnex, 2020 CanLII 37670

Citation: A. T. v. TD Insurance Meloche Monnex 2020 ONLAT 19-003627/AABS

Released: May 19, 2020

Tribunal File Number: 19-003627/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:

A. T

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

David M. Gardiner

For the Respondent:

David Perron

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on October 27, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The applicant claimed entitlement to lost educational expenses, but the respondent refused to pay for them. As a result, the applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Is the applicant entitled to payments for lost educational expenses submitted in an OCF-6 dated April 5, 2017?

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

RESULT

3The applicant is not entitled to the lost educational expenses claimed, nor interest.

BACKGROUND

4The applicant was struck by a vehicle while he was walking across the street at a crosswalk. He went to the hospital following the accident, was assessed, diagnosed with strain injuries, and released. About three weeks later, he met with Dr. T. Tyson, family physician, and complained of dull pain and weakness in his right knee and hip. Dr. Tyson referred the applicant to Dr. M. Khodabandehloo, orthopaedic surgeon, who diagnosed the applicant with chondromalacia, commonly referred to as runner’s knee, during a consultation on February 27, 2017.

5Prior to his meeting with Dr. Khodabandehloo, the applicant was referred by his family physician to Dr. D. Krishnaprasad, psychiatrist, due to stress and anxiety which was characterized as elevated following the accident. Dr. Krishnaprasad assessed the applicant on December 4, 2016 and provided a working diagnosis of adjustment disorder with mixed emotions secondary to work-related problems. Records from the applicant’s visit with Dr. Krishnaprasad note the October 27, 2016 accident, but do not attribute the applicant’s psychological injuries to it. Instead, his psychological injuries are attributed to a work environment the applicant described as toxic. During this consultation, Dr. Krishnaprasad gave the applicant a sick leave note to refrain from work for the period ending March 31, 2017.

6At the time of the accident, the applicant was enrolled in a post-secondary computer programming program. He submits he was unable to continue with the program following the accident and did not qualify for a refund on tuition due to school policy prohibiting refunds for classes dropped more than 10 days following their start.

LOST EDUCATIONAL EXPENSES

7The applicant claims entitlement to lost educational expenses as a result of the accident. He submits he was unable to continue with his program due to pain and distress and an inability to sit or stand for prolonged periods of time due to his knee and psychological injuries, forcing him to withdraw from classes on November 11, 2016.

8Pursuant to section 21 of the Schedule, the respondent shall pay for lost educational expenses incurred by the applicant if he was enrolled in a post-secondary program and is unable to continue the program as a result of the accident. Pursuant to section 21(5), lost educational expenses includes tuition, books, equipment or room and board in respect of the program term or program year in which the applicant was enrolled at the time of the accident, if the expenses are related to the program that the applicant is unable to continue.

9Section 21(2) of the Schedule provides the respondent with the right to request a disability certificate from a person who applies for reimbursement of lost educational expenses. Section 21(3) requires the applicant to provide a disability certificate within 15 business days of this request. Pursuant to section 21(4), the applicant is not entitled to any lost educational expenses until a completed disability certificate is provided.

10Both parties agree that the applicant was enrolled in a post-secondary educational program at the time of the accident and that the applicant withdrew from the program on November 11, 2016. At issue is whether the applicant withdrew from the program as a result of accident-related injuries.

11For the following reasons, I find no evidence to support the applicant’s claim that he withdrew from the program due to accident-related injuries. Further, I find no evidence the applicant submitted a completed disability certificate after the respondent requested one. As a result, the applicant is not entitled to the expenses pursuant to section 21(4) of the Schedule.

Do the applicant’s injuries prevent him from continuing with his program?

12There is no evidence the applicant’s knee and psychological injuries impair his ability to continue with his post-secondary education program. The applicant’s primary injury as a result of the accident is runner’s knee, as diagnosed by Dr. Khodabandehloo. The applicant reports occasional dull pain as a result of the injury, but an examination on November 18, 2016 found no swelling and a normal range of motion. There is no evidence that this knee injury prevents the applicant from participating in his computer programming classes, nor is there a recommendation to stop attending class. Notably, the applicant withdrew from his program on November 11, 2016, a week before his first visit to the family medicine practice he attends.

13The medical note from Dr. F. Ferrukh, another physician at the family medicine practice, dated October 27, 2016, notes the applicant was “unable to work and/or attend school due to medical reasons” for the period from October 27, 2016 to November 11, 2016. Yet, the note was provided to the applicant on the morning of October 27, 2016, before the accident occurred. The clinical notes and records from the visit indicate the note was provided due to stress at the workplace. The respondent is only liable to reimburse the applicant for lost educational expenses as a result of accident-related injuries, not workplace injuries as is the case here.

14The psychological report of Dr. J. Levenstadt does not support the applicant’s claims, as there is no recommendation for the applicant to refrain from attending class. The report indicates the applicant took a month off and was looking for another two to three months off. The report does not say whether the time off was from work or school and, more importantly, fails to include a medical recommendation to take the time off. In fact, records from that visit indicate that Dr. Levenstadt advised the applicant that no stress leave would be provided and a referral to Dr. D. Krishnaprasad was made. The applicant met with Dr. Krishnaprasad on December 4, 2016 for an assessment, and it was determined the applicant’s psychological injuries were workplace-related and the applicant was advised he not return to the workplace. The records from the assessment with Dr. Krishnaprasad are devoid of any recommendation to stop attending class and fail to attribute the applicant’s psychological injuries to the accident.

15I am unable to find that the applicant’s knee and psychological injuries prevent him from attending computer programming classes without clear evidence of a disabling injury or a recommendation from a medical professional to discontinue school.

Did the applicant submit a completed disability certificate?

16If I am wrong, and the applicant was impaired from continuing with his computer programming classes, I find no evidence to show he submitted a completed disability certificate pursuant to section 21(3) of the Schedule. Pursuant to section 21(4) of the Schedule, the respondent is not liable to pay for lost educational expenses until the applicant furnishes the completed disability certificate.

17The respondent requested a completed disability certificate on several occasions following the applicant’s claim for lost educational expenses. The applicant claims he provided one, albeit incomplete, and submits he should not be punished for his healthcare provider’s error in not completing the document. Notably, the applicant never produced the incomplete disability certificate for this hearing.

18In any event, the language in section 21(3) of the Schedule is clear in that a completed disability certificate be submitted by the applicant within 15 days of the respondent’s request. While there is a difference of opinion between the parties on when the respondent first made its request, the fact is requests have since been made by the respondent which have gone unfulfilled. Pursuant to section 21(4), the respondent is not liable to pay for lost educational expenses until a completed disability certificate is submitted.

CONCLUSION

19The applicant has failed to prove that his accident-related injuries caused him to withdraw from his post-secondary education. Further, he has not submitted a completed disability certificate pursuant to section 21(3) of the Schedule. Pursuant to section 21(4) of the Schedule, the applicant is not entitled to lost educational expenses as a result.