Released Date: 08/17/2020
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:
[P.M]
Applicant
and
Aviva General Insurance
Respondent
ADJUDICATOR:
Samia Makhamra
APPEARANCES:
For the Applicant:
Mark Baker, Counsel
For the Respondent:
Christopher Macauley, Counsel
Cross-examination
Heard on April 25, 2019.
Heard
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on January 13, 2015. As a result, she sought benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant started receiving income replacement benefits (IRBs) from the respondent one week after the accident until they were terminated on November 21, 2016.
3The respondent suspended the IRBs from November 21, 2016 to August 17, 2017, on the basis that the applicant failed to obtain necessary treatment and failed to provide relevant information.
4The applicant seeks payment of her income replacement benefits (“IRBs”) for the period of November 21, 2016 to August 17, 2017.
5It is the respondent’s position that the applicant’s delay in obtaining necessary treatment and in providing relevant information for the period in question warranted an interruption in the benefit.
ISSUES IN DISPUTE
6The issues in dispute at this hearing are:
i. Is the applicant entitled to retroactive payment of IRBs from November 21, 2016 to August 17, 2017?
ii. Is she entitled to interest?
RESULT
7I find that the applicant is entitled to retroactive payment of IRBs and interest.
BACKGROUND
8As a result of the subject accident, the applicant suffered injuries to her neck and back, complained of psychological symptoms, and was eventually diagnosed with Post Traumatic Stress Disorder.
9The applicant did not have a family physician before the accident. She began seeing Dr. Richard Coutts, a local family physician, after the accident. Dr. Coutts arranged for the applicant to be seen by a social worker for a number of appointments. Dr. Coutts subsequently retired and the applicant’s care continued with Dr. Ashley McCann.
10At the time of the accident, the applicant was employed as a bartender/server at [a restaurant] in a town in Ontario.
11Over the course of 2015, the applicant was referred to two assessors, Dr. Kutzman and Dr. Wagg, and both recommended that she be provided with psychological therapy from a clinical psychologist.
12By letter dated March 30, 2016, the respondent wrote to the applicant and enclosed a number of pre-104 IRBs Insurer's Examinations reports. One assessor, Dr. Atkins, psychologist, had found her entitled to IRBs. Dr. Atkins recommended treatment with a registered psychologist or psychological associate.
13By letter dated September 30, 2016, the respondent wrote to the applicant and stated:
“Further to our correspondence dated March 30, 2016, we agreed to fund the recommendations in the report of Dr. Atkins. Be advised that you remain eligible for the Income Replacement Benefit, however, as per section 57 of the SABS, we require you to participate in psychological intervention sessions focusing on reducing your trauma. Please note, failure to obtain/participate in this treatment will lead to benefit suspension.
As per Section 33 of the Statutory Accident Benefits Schedule, a copy of which is enclosed for your reference, we are requesting that you provide us with the following information:
A clarification of status of your Psychological treatments
Updated clinical notes and records from your family doctor
Please submit the requested information to our office by October 24, 2016. If we do not receive the requested information by this date, we are not liable to pay any Income Replacement Benefits during the period that you fail to comply with this request.”
14By letter dated November 28, 2016, the respondent again wrote the applicant stating that it had not received the information listed above and, as a result, it was suspending her IRBs effective November 21, 2016.
15As noted earlier, the respondent suspended IRBs from November 21, 2016 to August 17, 2017.
Applicant’s care for psychological symptoms during the period of IRB suspension
16The applicant saw Dr. Coutts on July 8, 2016. They discussed her low mood and anxiety, for which Dr. Coutts prescribed Cipralex.
17On August 23, 2016, the applicant saw Dr. McCann as a follow-up appointment. Dr. McCann increased the dosage of Cipralex.
18The applicant saw Dr. McCann again on September 26, 2016. She reported improvement in depression and anxiety with the increased dosage of Cipralex. As a result, Dr. McCann recommended that she continue with this course of treatment.
19In addition, between August 2016 and March 2017, the applicant saw Mr. Kennedy, a social worker within her family physician’s practice, for several mental health appointments as follows:
On August 24, 2016, for smoking cessation counseling. The applicant stated that smoking helped her cope with stress and anxiety.
On January 19, 2017. She reported high levels of anxiety, fluctuating mood and did feel like herself. Mr. Kennedy informed the applicant about a chronic pain management group and of a follow-up with someone from the Arthritis Society for her back and neck pain.
On February 7, 2017. The applicant discussed her anxiety. Mr. Kennedy discussed coping techniques and referred her to the Anxiety Canada website for additional coping techniques.
On February 24, 2017. The applicant called Mr. Kennedy concerned about increased depression, shifting moods and changes in energy levels. Mr. Kennedy advised of coping techniques and that she should attend at a hospital if her symptoms worsened.
On March 1, 2017. The applicant saw Mr. Kennedy in person as a follow-up to the February 24 phone consultation. Mr. Kennedy completed a Mood Disorder Questionnaire which yielded a positive result and concluded that an additional assessment was necessary. He also suggested she obtain a referral to see a psychiatrist.
20With assistance of counsel, the applicant contacted Dr. Lambros Mermigis, psychologist, in June 2017 to arrange an appointment. She continues to receive treatment from Dr. Mermigis.
21On August 17, 2017, the applicant submitted a treatment plan with a registered psychologist. The respondent reinstated the applicant’s IRBs from that date onward. She continues to receive IRBs.
Submissions of the Parties
22The applicant submitted that she continually sought assistance for the medical and psychological issues caused by the accident. Before starting psychological treatment with Dr. Mermigis, she saw her family physicians and a social worker on several occasions to address her psychological symptoms and, as such, her IRBs should not have been suspended. For all intents and purposes, she argued, she sought and received help for her psychological symptoms.
23Regarding her failure to provide the information to the respondent, the applicant provided the following explanation: she believed the respondent might send her to a psychologist, given that she had been sent for assessments before, and she believed that the respondent could access her medical records with consent she had provided.
24The applicant also submitted that the respondent cannot rely on its notice of September 30, 2016 to suspend her IRBs because the notice was deficient for the following reasons: the respondent did not enclose s.34, which permits entitlement when an insured has a reasonable explanation for missing a time limit; and, the wording was ambiguous and did not explicitly say that the respondent would stop paying the benefit if the applicant did not provide the information it was requesting.
25In addition, the applicant disputed the respondent’s ability to rely on s.57(2) on the basis that it does not explicitly allow the respondent to dictate what care the applicant must undertake as a pre-condition to receiving the benefit.
26The respondent submitted that the applicant’s years-long delay in obtaining necessary treatment warranted the suspension. Similarly, that the years-long delay in providing information relevant to assessing her entitlement to income replacement benefits warranted an interruption in those benefits. The respondent’s positions are respectively based on s.33 and s.57 of the Schedule.
27The respondent also submitted that the applicant was inconsistent in her answers during cross-examination, in particular regarding her understanding of the respondent’s letters to her, her efforts to find a psychologist, and her psychological symptoms, which it claimed contradicted some of her social interactions on social media.
ANALYSIS
28I have considered the parties’ submissions and evidence, the applicant’s affidavit, and her cross-examination. On cross-examination I find that the applicant was generally credible, consistent in her statements and answers, and that she testified in an honest and straight forward manner.
29I find that the applicant was in breach of s.33(1), however, pursuant to s.33(8), the amounts withheld during non-compliance are payable, as I find that she provided a reasonable explanation.
30Section 33(1) of the Schedule states the following:
An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:
Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
A statutory declaration as to the circumstances that gave rise to the application for a benefit.
The number, street and municipality where the applicant ordinarily resides.
Proof of the applicant’s identity.
31Section 33(8) provides that:
If an applicant who failed to comply with subsection (1) or (2) subsequently complies with that subsection, the insurer,
(a) shall resume payment of the benefit, if a benefit was being paid; and
(b) shall pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in complying with the subsection. …
32There is no dispute that the applicant did not provide the information the respondent requested in its letter of September 30, 2016, by the deadline of October 24, 2016. Namely, clarification of status of psychological treatments, and updated clinical notes and records from her family physician.
33Her explanation, as noted in her affidavit and confirmed in cross-examination, is that she believed she was making best efforts, and was compliant with the recommendations and care of her family physicians. She also believed that the insurer had the ability to obtain her medical records with consent she had provided early on, when she applied for accident benefits.
34I accept the applicant’s explanation as reasonable, and she was consistent in her answers in this regard during cross-examination. In other words, her belief or understanding that she was compliant, and that the respondent could obtain the information directly from her physicians is a reasonable explanation.
35Regarding the respondent’s notice of September 30, I do not accept the submission that it was deficient with ambiguous language. The letter included the full text of s.33 which includes s.33(8), the saving provision, and the applicant confirmed on cross-examination that she understood the provision.
36Further, based on the evidence, I do not find that the applicant was in breach of s.57(2) of the Schedule. Section 57 of the Schedule provides that:
- (2) An insured person who is entitled to an income replacement, non-earner or caregiver benefit shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary to,
(a) permit the insured to engage in employment or self-employment in accordance with the criteria set out in subsection (3), in the case of an insured person entitled to an income replacement benefit; or
(b) shorten the period during which the benefit is payable, in any other case.
- (4) If the insured is still receiving medical and rehabilitation benefits and fails to obtain treatment or participate in rehabilitation in accordance with subsection (2), the insurer may notify the insured person that the insurer intends to stop payment of the income replacement, non-earner or caregiver benefit in accordance with subsection (5).
37Based on my review of the medical records, I find that the applicant regularly sought and received help for her psychological symptoms during the period of November 2016 and August 2017, when her IRBs were suspended. This is clear from visits to her family physicians with whom she discussed her issues with anxiety, depression and fluctuating mood, and was prescribed Cipralex, as well as the appointments with Mr. Kennedy, a social worker, who assisted her with coping strategies and referrals to different services to help the applicant manage her psychological symptoms.
38Accordingly, as I find that the applicant was not in breach of s.57(2), as she was receiving help for her psychological symptoms, s.57(4) does not come into play.
39In conclusion, I find that the applicant provided a reasonable explanation for failing to provide the documents and information the respondent requested, and that she participated in treatment that was reasonably provided to her through her family physician’s practice. As such, she is entitled to received IRBs during the period of suspension.
Released: August 17, 2020
Samia Makhamra, Adjudicator