Citation: S.R. vs. Traders General Insurance Company, 2020 ONLAT 17-004556/AABS

Date: July 24, 2020

Tribunal File Number: 17-004556/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:

S. R.

Applicant

and

Traders General Insurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Philip Fakhourie, Counsel

James Armstrong, Counsel

For the Respondent: Patrick Baker, Counsel

Held by In Person and by Teleconference on March 11, 13, 2020 and April 21, 2020 and by way of written submissions

OVERVIEW

1The applicant was injured as a result of a motor vehicle accident on December 28, 2014. She applied for and sought an income replacement benefit (IRB) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). The respondent paid the IRB from January 4, 2015 to February 24, 2015 but subsequently denied the claim initially on the basis that in February 2015 the applicant had returned to work and in November 2017 on the basis the limitation period barred her claim. The respondent claims she does not meet the test for an IRB and, alternatively, that she does not meet the statutory test from March 2018 onward.

2There are two statutory tests to meet to be entitled to an IRB. For the period being sought by the applicant from May 30, 2015 to December 28, 2016 (the pre- 104 week IRB), the applicant has to establish that 1) she was employed or self-employed at the time of the accident and 2) during the 104 week period she suffered a substantial inability to perform the essential tasks of her pre-accident employment.

3For the IRB being claimed by the applicant from December 29, 2016 to date and ongoing (the post-104 week IRB), the applicant has to establish that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. The second test is more stringent in that the applicant must show a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

4The applicant claims that because of her injuries she meets both statutory tests and cannot work. Her return to work in February 2015 ended May 30, 2015.

5The applicant and all other witnesses gave evidence at an in-person hearing.

ISSUES

6The following are the issues to be decided:

a. Is the applicant entitled to an IRB in the weekly amount of $380.28 from May 30, 2015 to December 28, 2016 (the pre-104 week IRB) and from December 29, 2016 to date and ongoing (the post-104 week IRB) submitted December 30, 2014 and denied March 5, 2015?

b. Is the respondent liable to pay an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664?

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

RESULT

7The applicant is entitled to the pre-104 week IRB in the weekly amount of $380.28 from May 30, 2015 to December 28, 2016. The claim for the post-104 week IRB from December 29, 2016 onward is dismissed. The claim for an award is dismissed. Interest is payable on the overdue payment of benefits.

BACKGROUND

The Applicant’s Impairments

8To succeed with her claim for the pre-104 week IRB the applicant has to establish on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her employment as per sections 4 and 5 of the Schedule. I find that she has presented evidence on a balance of probabilities that as of May 30, 2015 to December 28, 2016 her physical injuries and psychological impairments are such that she has a substantial inability to perform the essential tasks of her pre accident employment.

9The applicant testified¹ that as a result of the accident she developed chronic pain throughout her body and she continues to experience pain in her neck, shoulders and back. She claims further that as a result of the accident she has headaches, sleep disturbances, psychological impairments including depression, anxiety, and post traumatic stress which prevent her from working. She has been diagnosed with whiplash, a concussion, nerve pain, and soft tissue injuries which developed into fibromyalgia and chronic pain. She testified she was able to return to work briefly in February 2015 but was unable to continue working beyond May 30, 2015. She stated her brief return to work consisted of lighter tasks than previous to the accident.² She testified that she has not returned to work since that date. She testified she would love to return to work but does not believe she can return to any employment.³ She has attended various conservative treatments such as physiotherapy and prescribed numerous medications including cannabis oil. ⁴

10She testified that at the time of the accident she was working as an educational assistant approximately 35 hours a week. Her work was very physical involving taking care of special needs children including those in wheelchairs. She also volunteered at church where she started a program for a youth camp for the deaf. She was also a volunteer assistant director at the youth camp and has been for over 30 years. Her duties included managing staff, staff support, dealing with parents, and any of the children's behavioral issues. She also ran the tuck shop. Prior to the accident she took a course on planning weddings. She stated that in 2017 she had planned a number of weddings but had to recruit family members to help her complete the projects.

11She testified there has been some improvement in her condition in the past three years. She has better range of motion, can lift up to 20 pounds, can drive short distances and lift her grandson. Her pain is ongoing and she continues to have trouble sleeping, memory issues and suffers from depression and anxiety. She states she does not handle stress well.

12She testified that she has returned to her volunteer camp work (no date of return was provided) but she does less than what she used to. She also does volunteer work at a consignment store ⁵ for approximately 3 hours, 2-4 times a month with accommodations - she can sit down whenever she needs, there is no computer, telephone work or cash register work. She has flexibility with her shifts. She greets customers, finds and hangs clothes. She feels she is not employable. She stated she wants to return to work but has some limitations such as using the phone because her neck hurts and difficulty standing and sitting for long periods of time. She has difficulty dealing with people. The applicant claims she has to avoid activity the day before volunteering and has pain after her shifts.

13The applicant submitted two disability certificates (OCF-3s)⁶ to support her claim. The first OCF-3 is dated January 21, 2015 and was completed by her physiotherapist and identifies her injuries as whiplash and lumbar strain. The document states the applicant can return to work but on modified duties. The respondent denied the IRB claim in its denial letter dated March 4, 2015⁷ which advised the applicant that the IRB claim was being denied effective February 24, 2015 as she had resumed work. The insurer would re-assess her entitlement for the IRB on receipt of an updated OCF-3.

14The second OCF-3 is dated June 13, 2017 and expands the list of injuries to include whiplash, with complaints of neck and shoulder pain with myofascial pain syndrome, post concussion syndrome, nerve pain, and chronic neck and head pain. The respondent states the OCF-3 of June 13, 2017 was not provided until October 26, 2017. The second OCF-3 states she cannot return to work in the first 104 weeks post accident as she cannot perform the lifting requirements of her job as an educational assistant. Her neck and upper extremities are aggravated by manual lifting greater than 8 pounds. The disability is expected beyond a period of 12 weeks. The second OCF-3 states she does not suffer an inability to carry on a normal life but does suffer inability to do housekeeping and home maintenance activities. The school is also unable to provide modified duties.

15The respondent sent an explanation of benefits dated November 3, 2017 ⁸ acknowledging receipt of the OCF-3 dated June 13, 2017 received on October 26, 2017. It advised the applicant that the limitation period on her claim for an IRB had expired. The OCF-3 did not change their position on entitlement and the denial of March 4, 2015 stands. It further advised that the limitation period issue was being heard at the Tribunal as a preliminary issue hearing. ⁹

Medical Evidence to support the claim for an IRB

16In support of her position for an IRB, the applicant relies on her testimony and the evidence from 3 medical doctors, Dr. Waisman, psychiatrist, Dr. Feges, family doctor, and Dr. Ta, physiatrist. All three testified at the hearing that the applicant could not return to any employment due to her limitations. Dr. Waisman examined the applicant on November 1, 2017. Dr. Ta examined the applicant on October 31, 2017. Both issued reports discussed below.

17The applicant relies on the findings of Dr. Waisman and his conclusions stated in his psychiatric assessment report¹⁰ dated November 16, 2017; specifically, that she experienced significant psychological issues as a result of the accident. Dr. Waisman diagnosed the applicant with a major depressive disorder, post-traumatic stress disorder and a somatic symptom disorder (chronic pain). His intake form noted the applicant had a limiting pattern of physical pain, dizziness and headaches which affected her lifestyle and work-related abilities. As a result of the accident she has extensive severe persistent pains, limitations and emotional symptoms that interfere significantly with her ability to return to her pre-accident functional level from occupational recreational and functional perspective. He concluded the applicant has not been able to return to any work and lacked the emotional control to do so. He concluded her emotional state is unlikely to improve or lessen without some improvement in her physical pain. In his opinion, she sustained significant impairments, the most being difficulty coping with pain. She suffers from a complete inability to engage in any employment for which she is reasonably suited due to extensive and severe persistent pains, limitations and emotional symptoms that interfere significantly with her ability to return to pre-accident level functioning. The respondent maintains Dr. Waisman’s report was not received by it until early 2020.¹¹

18Dr. Waisman testified that, in his opinion, the applicant cannot return to work as she cannot handle the stress of regular employment. He stated that, although she is doing some volunteer work, this in his view did not mean she could in his opinion return to an actual workplace. This is because with volunteer work, one can choose when and how they want to work, which is not the case with regular employment. He further stated that the applicant continues to have a complete inability to do any employment for which she is suited by education or experience. During cross examination he agreed he is not a vocational assessor and has not examined the applicant since October 2017.

19Dr. Ta, in his chronic pain report of October 31, 2017, diagnosed the applicant with a whiplash associated disorder, chronic pain syndrome, myofascial pain, chronic headaches and sleep disturbances.¹² The respondent states Dr. Ta’s report was not sent to it until January 19, 2019. Dr. Ta, in his report, stated the applicant cannot work as an educational assistant even with modifications due to unpredictability of the behaviour of the children and physical demands of the job. He noted she cannot sit/stand for long periods of time, has difficulty turning her head, noted strained interpersonal relationships, ¹³ and because of chronic pain she moves slower, needs days off in bed after activity and that there will be good days and bad days with exacerbation of pain. He noted that she was very motivated to go back to work but opined that she is not employable in most situations. In his report he stated the applicant in his opinion is an excellent candidate for a retraining program. ¹⁴ On cross-examination, Dr. Ta agreed his report does not refer to the complete disability test however he clarified that because of her injuries she has lost her competitive edge in her vocation as a supply teacher with special needs children. He indicated she is an excellent candidate for retraining and repeated his view that she is unable to work in any capacity.

20The applicant also relies on the testimony of Dr. Fejes, her family doctor and clinical notes and records (the “notes”) to support her IRB claim.¹⁵ The notes reflect a number of visits before and after the accident 2015 to 2019. Some of these include:

i. On April 24, 2015, the doctor noted the applicant was making progress from her chiropractic treatment. On May 29, 2015, the doctor recommended physiotherapy for her soft tissue injuries.

ii. On July 21, 2015, the family doctor noted chronic pain. On October 15, 2015 the notes refer to ongoing neck, back and shoulder pain.

iii. vi. On November 9, 2015, the notes refer to a CT scan of the spine which showed a multilevel degenerative disc disease.

iv. On December 21, 2015, the family doctor noted the applicant was in pain and very distressed.

v. The January 11, 2016, notes refer to a visit to Dr. Howard who indicated she had fibromyalgia and generalized anxiety disorder that will not go away until she gets treatment for her chronic pain. The family doctor noted she was enrolled in a stress management program (which the evidence indicates she did not attend).

vi. On March 11, 2016, she showed an improved range of movement. On August 29, 2016, the notes state her neck and shoulders are a bit better.

vii. On January 5, 2017 the notes refer to anxiety from being a caregiver of her terminally ill father. The notes of February 2, 2017 state the applicant is doing more activities such as walking on a treadmill, attending yoga, some grocery shopping and cleaning at home.

viii. On March 2, 2017, the notes refer to a diagnosis of fibromyalgia.

ix. On May 11, 2017, the notes refer to ongoing stress in the applicant’s life that are unrelated to the accident including her father’s illness, the camp starting up, court proceedings are ongoing and her sister is getting married.

x. On August 21, 2017, she was referred to the cannabis clinic.

xi. On November 8, 2017, the notes state the applicant reported she has been in a crisis for the past 14 months as she was taking care of her dying father and that he was near the final stages of his life.

xii. On April 19, 2018, the notes state she is still using cannabis and has pain but it is not as severe. She reported being diagnosed with post traumatic stress syndrome. Her condition had plateaued.

xiii. On August 22, 2018, her neck and back pain is improving. The doctor suggested she reduce medications. Cannabis oil was very helpful. The family doctor noted the applicant appears generally well.

xiv. On March 13, 2019, it was noted she appeared well and very pleasant.

xv. On June 27, 2019, the applicant reported some headaches and it was noted her cervical spine range of motion had improved but the range of motion is only 50% normal.

xvi. On June 27, 2019, the family doctor and applicant discussed her return to work as an educational assistant. The applicant reported to her doctor that she has good and bad days. She stated it is difficult to have her work when her physical health is not predictable. She was upset that she is not contributing financially. She enjoyed her work at a consignment shop where she volunteered several hours a week but it is not adequate for her as it is not financially compensating. The applicant felt she was not employable in most situations. She stated “it would only be in a situation where she could choose when she works for shorter time periods, where she could change positions frequently, rest as needed, very limited time on the keyboard.” As to her employability, she stated the pacing of her energy and physical limitations curtails her employability. She needs to think this over. She stated she was on leave of absence for medical reasons.¹⁶

xvii. The notes establish the applicant had a pre-existing medical issue with her left elbow, a work-related injury.

21The family doctor testified that she has been treating the applicant for more than 30 years. The applicant’s complaints included neck and shoulder pain, loss of concentration, headaches, back pain, difficulty sleeping. Dr. Fejes diagnosed the applicant with concussion and myofascial pain, chronic pain syndrome, fibromyalgia and anxiety. Dr. Fejes noted improvements in the applicant’s pain but that her pain is not predictable, emotional stress could exacerbate her symptoms, and the applicant has difficulty with prolonged sitting and standing. Her symptoms would get worse with age. Dr. Fejes stated that the applicant was not competitively employable. Dr. Fejes opined that her volunteering skills are not transferrable to employment in a retail setting and that she is not capable of sustaining employment.

The Respondent’s Medical Evidence

22The respondent relies on the IE report of its assessor, Dr. Scott McKenzie, orthopaedic surgeon, in his orthopaedic assessment ¹⁷ of July 30, 2015 which is based on an examination of the applicant of July 17, 2015. He concluded the applicant had suffered a cervical spine injury and low back strain with whiplash. She had sustained minor injuries. Dr. McKenzie subsequently reviewed his findings after he received a complaint from the applicant’s spouse who did not agree with Dr. McKenzie’s finding. On review, he confirmed his conclusion that the applicant sustained minor injuries and the treatment plan for physiotherapy, which is not in dispute, was not reasonable and necessary.

23The applicant was also assessed by Dr. Alex Luczak, psychiatrist, who concluded in his psychiatric assessment report dated December 21, 2017¹⁸ that the applicant had moderate depression and severe anxiety. He concluded that the applicant was consumed by her chronic pain. He found that as a result of the accident she had significant psychological distress - Major Depressive Episode with moderate severity and a somatic symptom disorder (chronic pain). As a result, her injuries fell outside of the Minor Injury Guideline. He concluded that another psychiatric assessment was not reasonable and necessary as the family doctor was well aware of her psychological distress and chronic pain. He did acknowledge that the applicant’s physical injuries based on the orthopaedic assessment in 2015 that revealed no evidence of significant musculoskeletal limitations but that her injuries and pain had worsened.¹⁹

24A general practitioner assessment report of Dr. Jugnundan, general practitioner, was also obtained on June 6, 2018.²⁰ In his report, Dr. Jugnundan noted that at the examination of the applicant on May 23, 2018, there was no evidence of difficulties moving off the bed and the roll off fashion was normal. He noted the applicant was pain and disability focused. He concluded she did not sustain an impairment as defined. The diagnosis was most likely chronic myofascial pain disorder and based on the reported symptoms, she has not reached maximum medical recovery. He opined that a return to work should be aggressively pursued as a return to work may improve health outcomes. The OCF-18 for ongoing physiotherapy was not reasonable and necessary. He stated the applicant had had various forms of treatment for the last three years and he did not believe any further treatment would result in any significant improvement. He suggested a self-directed exercise program and a psychological assessment for the ongoing pain with appropriate treatment for chronic pain which is classified as a psychiatric disorder.

ANALYSIS AND DECISION

IRB Pre-104 Weeks

25I find the applicant has presented evidence on a balance of probabilities that, as a result of her physical injuries and psychological impairments sustained from the accident, from May 30, 2015 to the 104th week mark (December 28, 2016) she has established that she has a substantial inability to perform the essential tasks of her pre accident employment as per sections 4 and 5 of the Schedule.

26I agree with the applicant there is sufficient medical evidence to establish that the applicant from May 30, 2015 to December 28, 2016 is not capable of doing her pre-accident work as an educational assistant. I find the evidence of the applicant and her doctors persuasive as it relates to the applicant’s ability in the pre-104 weeks to return to her pre-accident employment. Dr. Waisman, the family doctor and Dr. Ta all agreed that, as a result of her injuries, she could not return to her pre-accident employment.

27The respondent argues the reports of Dr. Ta and Dr. Waisman are limited in time in their application and scope as they assessed the applicant in October and November 2017 and they did not obtain a detailed work history from the applicant enabling them to assess her employment. In its cross-examination, the respondent established that Dr. Ta and Dr. Waisman examined the applicant in late 2017 and have not provided updated reports beyond that date. I agree the reports are time limited and do not contain a detailed work history. I also agree that the doctors are not vocational assessors. I do find however they provide some medical evidence that from the date of the accident to and throughout 2017, the applicant’s impairments continue such that she has a substantial inability to perform the essential tasks of her pre-accident employment.

28The applicant also saw her family doctor on a regular basis from the time of the accident up to and including 2019. The notes as outlined above of the family doctor in 2017 support the family doctor’s opinion that the applicant was not employable in most situations (my emphasis). The test as discussed below for the period from December 29, 2016 and onward is whether the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

29No vocational assessment was presented into evidence that would identify the specific tasks of the applicant’s pre-accident employment as an educational assistant. I therefore do not have the benefit of that evidence and must rely on the evidence from the applicant who testified about her work as a full-time educational assistant which involved physical duties and taking care of special needs children, including those in wheelchairs. She also testified about her duties as an assistant director at a youth camp. In addition, she testified she trained for and ran a wedding planning business which, based on her evidence, was still active in mid 2017, although she also testified she needed assistance from her family to complete the work.

IRB Post-104 Weeks

30Based on the totality of the evidence, I find that the applicant, from December 29, 2016 onward, does not meet the more stringent post-104 week test. The statutory test for eligibility of an IRB post-104 weeks is set out in section 6(1) of the Schedule. It provides that for the period after the first 104 weeks of disability, the applicant must demonstrate she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

31The evidence indicates the applicant is trained as a wedding planner and some of her projects were still active in mid 2017 although she testified that she needed assistance from family to complete these. In itself, this evidence does not indicate the applicant in mid 2017 is able to return to this work. However, the evidence is important in establishing the applicant is trained as a wedding planner. The wedding planning business is work for which she is reasonably suited by education, training or experience and provides compensation. This self employment would further provide the applicant flexibility and control over her time commitment and work duties.

32The applicant provided no evidence of any other attempts to return to this work or other alternative work beyond 2017.

33In addition, as to her medical condition, the applicant testified there has been some improvement in her condition in the past three years. She testified from 2017 onwards she had better range of motion, could lift up to 20 pounds, can drive short distances and lift her grandson. This evidence suggests that the applicant could perform some duties that would involve lifting which she testified was a noted limitation in respect of her work as an educational assistant.

34I also find that the medical evidence from the family doctor summarized above shows the applicant’s condition was showing signs of improvement and by early 2017 the applicant herself reported doing more activities at home. The notes of February 2, 2017 state the applicant is doing more activities such as walking on a treadmill, attending yoga, some grocery shopping and cleaning at home. On January 5, 2017, the doctor’s notes refer to anxiety from being a caregiver of her terminally ill father. Although caregiver activities relate to the care she provided for her terminally ill father, this is further evidence of an ability to perform caregiver activities.

35The respondent submits the applicant’s limitations, pain and emotional stress are not due to accident related injuries, but due to her having to deal with her father’s illness and death in 2018. The respondent submits that applicant’s issues were related to her father's terminal illness and is a reason and an alternative cause for her perceived inability to work. I find there is some basis to that position as she testified that she had been under tremendous stress from her life activities which included her father’s illness and death. However, I find these life events contributed to her impairments but are not the sole cause of her inability to work post-104 weeks.

36As noted above, the reports of Dr. Ta and Dr. Waisman are limited in time, application and scope as they assessed the applicant in October and November 2017 and neither obtained a detailed work history from the applicant enabling them to assess her employment. In his cross examination, Dr. Ta stated the applicant would make an excellent candidate for re-training.

37The respondent’s submissions are limited in their scope as it relates to the applicant’s ability to return to any employment in 2017. However, it submitted the applicant cannot meet the test beyond March 18, 2018, which is the date she began volunteering in a retail environment. The respondent submits that the applicant has engaged in volunteer activity for [the consignment store] since March 2018 in a retail role in which she was responsible for assisting customers, bringing items from the storage room, hanging merchandise, and engaging in receiving tasks when clothing was donated. She testified to working at least 2-4 shifts per month. The respondent submits that while her involvement at the [consignment store] is on a volunteer basis, it demonstrates the applicant’s functional ability to engage in work in a retail setting from March 2018 onward.

38The question is - is being engaged in volunteer activity for [consignment store] in a retail role sufficient to meet the test as set out by Adjudicator Sapin stated in the Tribunal decision 16-000874 v Certas Home and Auto Insurance Company²¹? In that decision, Adjudicator Sapin stated, “It is well established in the jurisprudence, that a reasonably suitable employment means employment ‘in a competitive, real- world setting, taking into account employer demands for reasonable hours and productivity’. The work should also be comparable in terms of status and wages.”

39Based on the fact that the activity is a volunteer role with no wages, it would seem that the volunteer activity may not meet the test set out in the decision 16-000874 v Certas Home and Auto Insurance Company. However, wages are not the only factor to consider. As stated by the applicant, a determination of whether an applicant suffers a “complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience” requires a reflection of all the evidence including: the nature of the applicant's condition and extent of their disability, their efforts to position themselves to return to the workforce, the vocational assistance made available by the respondent, and the options for alternative work that have been put forward.

40I find based on the totality of the evidence, that the applicant, as of December 29, 2016 and onward does not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. I agree with the respondent that the volunteer activity at [the consignment store] provides some evidence of employment for which the applicant might be reasonably suited by reason of education, training or experience. It provides evidence of some functional ability to work in a retail setting.

41In addition, the applicant testified her pain has plateaued. Dr. Jugnundan also encouraged that she aggressively pursue her return to work as it may improve health outcomes. He also found the OCF-18 dated June 2018 for ongoing physiotherapy was not reasonable and necessary. The applicant had had various forms of treatment for the previous three years and he did not believe any further treatment would result in any significant improvement. He suggested a self-directed exercise program.

42Although the applicant gave evidence that she did not handle stress well, the evidence also shows she was enrolled in a stress management course but chose not to attend it. The applicant provided no explanation for why she did not attend.

43She also testified that she has returned to her volunteer camp work but she does less than what she used to. This role is also volunteer work but demonstrates that the applicant is capable of performing numerous work tasks which she identified as including being in charge of staff, staff support, dealing with parents and any of the children's behavioral issues and running the tuck shop.

44The medical evidence of the family doctor further indicates that by April 2018 the applicant’s medical condition was improving. By August 2018, the doctor suggested the medication of the applicant be reduced. In addition, Dr. Ta stated in his report that the applicant would make a good candidate for retraining. On cross-examination, Dr. Ta testified she is an excellent candidate for re-training. He also agreed on cross-examination that his report does not refer to the complete disability test. He clarified that because of her injuries she has lost her competitive advantage, which I find is not the statutory test.

45Moreover, the family doctor opined in June 2019 that the applicant is not employable in most situations. Being not employable in most situations is not sufficient to meet the post-104 week test which requires a complete inability to engage in any employment or self-employment for which a person is reasonably suited by education, training or experience. Lastly, Dr. Ta testified that in his view that the applicant is unable to work in any capacity. This is not consistent with the evidence including the applicant’s testimony that she has returned to her volunteer camp work.

46Based on the totality of the evidence, I find that by December 29, 2016 and onward the evidence does not demonstrate that the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

PROCEDURAL ARGUMENTS

47Several procedural arguments were advanced by the applicant raising issues with the respondent’s failure to assess the IRB claim. The applicant cross examined the claims adjuster who provided evidence via telephone conference on April 21, 2020. The claims adjuster was questioned about her role and the claimed lack of assessments of the applicant’s medical condition by the respondent including its alleged failure to request an updated OCF-3 from the applicant. I find no merit in the arguments raised. The applicant bears the burden to present updated disability certificates and present supporting documents to support her claim. The evidence indicates the applicant was advised in March 2015 to submit an updated OCF-3 which the evidence indicates was not done until October 26, 2017. In addition, the respondent, I agree, was not in a position to re-assess her claim until it received the second OCF-3. Moreover, by that time, it was raising a limitation period issue and pursuing a remedy at the preliminary issue hearing at the Tribunal.

48I also agree with the respondent that it may but is not obliged to obtain an assessment. Section 44(1) of the Schedule states an insurer may require an insured to be examined under that section. The language is not obligatory. In this appeal the respondent did not receive the updated OCF-3 until October 2017 and by then it was pursuing a remedy on the basis of the limitation period. The respondent’s position was also complicated by the fact that it did not receive the report of Dr. Ta until January 2019 and Dr. Waisman’s report until 2020. The medical evidence of the family doctor indicates the applicant’s condition in 2018 and 2019 was improving.

49The respondent notes the applicant delayed in providing it with updated information. It submits Court of Appeal decisions stand for the proposition that the insured is responsible to actively seek what they believe they are entitled to. The insured person ultimately bears the burden of proof and must pursue his or her own claims. It is not for the respondent to pursue the applicant and ensure she pursues her claim.

Interest

50Since I have found benefits are payable, the applicant is entitled to interest on overdue payments.

An Award under Ontario Regulation 664 (O/Reg 664)

51Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments.

52The applicant submits she is entitled to an award because the respondent failed to assess the IRB claim and failed to provide her with or request a disability certificate from her. ²² I do not agree with the applicant’s submissions that the respondent acted unreasonably to meet the high threshold test for an award. The respondent relied on the findings of its IE assessors. The evidence indicates delay by the applicant in submitting an updated OCF-3. The respondent was thus not in a position to re-assess the claim until it received the second OCF-3 and by that time it had raised a limitation period issue and was pursuing a remedy at the preliminary issue hearing.

53I agree that the insurer that in choosing not to arrange insurer examinations while appealing a preliminary issue decision is not evidence of unreasonable withholding of a benefit. The claim for an award is dismissed.

CONCLUSION

For the reasons outlined above, I find that:

54The applicant is entitled to receive the weekly income replacement benefit from May 30, 2015 to December 28, 2016. The claim for an income replacement benefit from December 29, 2016 onward is dismissed. The claim for an award is dismissed. Interest is payable on the overdue payment of the benefit.

Released: July 24, 2020

Thérèse Reilly

Adjudicator

Footnotes

1. 1Testimony of the applicant, March 11, 2020.
2. 2Written submissions of the applicant dated May 7, 2020, paragraph 8.
3. 3Written submissions of the applicant dated May 7, 2020, paragraph 12.
4. 4Written submissions of the applicant dated May 7, 2020, paragraph 10.
5. 5Written submissions of the applicant, paragraph 11.
6. 6Disability Certificate January 21, 2015, Tab C-2, and Disability Certificate dated June 13, 2017, Tab C-3, Document Brief of the applicant.
7. 7Explanation of Benefits dated March 4, 2015, Tab B1, Applicant Document Brief.
8. 8Explanation of Benefits dated November 3, 2017, Supplementary Brief Binder, tab G-6.
9. 9A preliminary issue hearing was held on the issue of the limitation period. The Tribunal issued a decision issued on February 5, 2018 that the March 4, 2015 denial was not clear and equivocal. This was appealed to the Divisional Court on February 15, 2018. On February 27, 2019 the Divisional Court stated the appeal was premature. These proceedings are discussed in paragraphs 2 to 7 of the respondents written submissions dated May 21, 2020.
10. 10Independent Psychiatric Assessment Report, Dr. Waisman, dated November 16, 2017, Tab 12, document brief of the applicant, page 1098.
11. 11Written submissions of the respondent dated May 21, 2020, paragraph 19.
12. 12Chronic Pain Assessment, Dr. Ta, dated October 31, 2017, tab D-16, Document Brief, page 1122. The report refers to “psychological conditions outlined in Appendix D.” Appendix D however is titled “Medical Documentation Reviewed”.
13. 13Chronic Pain Assessment, Dr. Ta, dated October 31, 2017, tab D-16, Document Brief, page 1115.
14. 14Chronic Pain Assessment, Dr. Ta, dated October 31, 2017, tab D-16, pages 1124.
15. 15Clinical Notes and Records of Dr. Fejes, tabs D6-D10, Document Brief and written submissions of the applicant, paragraphs 22 to 29.
16. 16Clinical Notes of the family doctor, page 1072, document brief of the applicant.
17. 17Orthopaedic Assessment, Dr. McKenzie, dated July 17, 2015, Tab F1, Supplementary materials, page 1510.
18. 18Psychiatry Assessment Report, Dr. Luczak, psychiatrist dated December 21, 2017, Supplementary Document Brief, Tab F-3, pages 1518 to 1526.
19. 19Psychiatry Assessment Report, Dr. Luczak, dated December 21, 2017, Supplementary Document Brief, Tab F-3, page 1523.
20. 20General Practitioner Assessment Report, Dr. Jugnundan, general practitioner, dated June 6, 2018, Supplementary Document Brief, Tab F-5, pages 1543 and 1567.
21. 2116-000874 v Certas Home and Auto Insurance Company, 2017 Carswell Ontario 16315.
22. 22Written submissions of the applicant, paragraphs 36 and 40