Released: January 19, 2021
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:
Kadeem Jones
Applicant
and
The Co-operators
Respondent
DECISION
VICE-CHAIR: D. Gregory Flude
APPEARANCES:
For the Applicant: Kadeem Jones, Applicant Mitchell Kent, Paralegal
For the Respondent: Brooke Hickingbottom, Claims Representative Stanislav Bodrov, Counsel
Court Reporter: Guido Riccioni
HEARD by Videoconference: December 2, 2020 and December 15, 2020
OVERVIEW
1The applicant, Kadeem Jones, was involved in a motor vehicle accident on January 10, 2018. and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The respondent, The Co-Operators (the “Co-op”) determined that Mr. Jones had suffered predominantly minor injuries as defined in s. 3 of the Schedule and declined to approved treatment in excess of the $3,500 coverage limit set out in s. 18(1) of the Schedule. The Co-op also determined very early on in its adjustment of the file that Mr. Jones was not entitled to specified benefits, in particular, it determined that he was not entitled to a non-earner benefit (“an NEB”). It asked him to attend examinations to determine entitlement to an income replacement benefit (“IRB”) and denied the benefit based on those examinations and other factors.
2Mr. Jones applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a finding that his injuries are not minor or subject to the limitation in coverage. He also applied to the Tribunal for a determination that he was entitled to an IRB. At the outset of the hearing, he sought to amend his claim for an IRB to a claim for an NEB. The parties agreed that I should hear the evidence in the case on the first day before hearing submissions on an amendment to the claim and closing submissions on the substantive issues on the second day.
3For the reasons that follow, I find the Mr. Jones is subject to the $3,500 coverage limit set out in s. 18(1) of the Schedule and is not entitled to treatment beyond that amount. I deny Mr. Jones right to amend his application to advance a claim for an NEB on the basis that it is barred because he qualified for an IRB and his claim for an NEB was brought beyond the 2-year limitation period set out in s. 56 of the Schedule. I decline to exercise any discretion I may have under s. 7 of the Licence Appeal Tribunal Act, 1999, S.0 1999, c. 12, Sched. G (“LATA”) to extend the time for bringing a claim, largely on the basis that his claim for an NEB is meritless.
PRELIMINARY ISSUES
4As stated above, Mr. Jones seeks to amend his Notice of Application to advance a claim for an NEB. The parties agreed that the four issues to be addressed with respect to the NEB claim are:
a. Is Mr. Jones permitted to withdraw the claim for an IRB and substitute a claim for an NEB?
b. Is Mr. Jones’s claim for an NEB barred by s. 12 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) because he qualified for an IRB?
c. Is Mr. Jones claim for an NEB barred by the 2-year limitation period in s. 56 of the Schedule because it was denied on April 4, 2018 and he did not commence his application for an NEB to the Tribunal until December 2, 2020? (Note this issue as originally stated in my December 4, 2020 order had incorrect dates. The parties have confirmed that these are the actual dates in dispute and made their submissions based on these dates. They declined the opportunity to make submissions on the dates as set out in the December 4 order.)
d. Should I exercise my discretion, if any, under s. 7 of the Licence Appeal Tribunal Act, 1999 to extend the limitation period set out in the Schedule?
5A key to understanding the dispute is found in the various statements that Mr. Jones made in his initial applications to the Co-op that formed the basis for their correspondence that he was entitled to an IRB.
6Mr. Jones filed an Application for Accident Benefits (“OCF-1”) with the Co-Op in and around February 2, 2018. In the OCF-1 he stated that he was “employed and working” in Part 5. In part 8 he identified his employer as “Paul Hay (Earth Man Herbals”) and having been employed since August 2016. He also filed a Disability Certificate (“OCF-3”). The OCF-3 stated that Mr. Jones was working as a “Store Manager. He asked for 2 weeks off.”
7The OCF-3 went on to state that Mr. Jones met the test for an NEB, a caregiver benefit and a housekeeping and home maintenance benefit. It stated that the time during which the injuries Mr. Jones sustained would impair him from performing the various tasks was from 9 to 12 weeks. In addressing his complete inability to carry on a normal life for 9 to 12 weeks, the OCF-3 ties this inability to employment. It states: “The applicant cannot work. He cannot take care of himself or his family as he did prior to the MVA.”
8Based on the above information, the Co-op sent Mr. Jones a letter dated February 16, 2018 stating that, since he was working, he was entitled to an IRB not an NEB. In addition to pointing to a lack of evidence of a complete inability to live a normal life, the letter went on to say: “However, you are eligible for the Income Replacement Benefit and therefore you are not entitled to the Non Earner Benefit” [emphasis added].
9I note that in addition to denying entitlement to an NEB, the February 16, 2018 letter also sets out the limitation period for bringing an appeal of its decision and the steps necessary to file an appeal. It is, thus, in compliance with Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129 (“Smith”) and is the first instance of a valid denial of an NEB. The Co-op did not rely on this date of denial, however. It relied on a denial set out in a letter dated April 10, 2018.
10In March 2018 Mr. Jones filed an unsolicited Election of Income Replacement, Non-Earner or Caregiver Benefit (“OCF-10”) electing to receive an NEB. The Co-op requested further documentation in March that was apparently not forthcoming. On April 10, 2018, the Co-op sent the letter it now relies on as the definitive denial of Mr. Jones right to an NEB.
11Mr. Jones retained counsel very shortly after the accident. Several months after the accident, Mr. Jones changed counsel to his current legal representatives. I am informed by his current legal representatives that the previous counsel refused to transfer Mr. Jones’ file with the result that his current counsel first became aware of his election of an NEB only days before the hearing when respondent’s counsel delivered a copy of the OCF-10.
Is Mr. Jones permitted to withdraw the claim for an IRB and substitute a claim for an NEB?
12There is a dispute between the parties over the intent of the first issue. The respondent correctly points out that an applicant may withdraw an issue at any time and does not need the leave of the Tribunal to do so. In its submission, Mr. Jones has withdrawn the claim for an IRB, the limitation period has run, so the claim cannot be brought back on.
13Mr. Jones counters that he did not withdraw the claim for an IRB. He asked to amend that claim to claim an NEB. If he cannot proceed on an NEB claim, he retains the right to advance an IRB claim. He points out that the IRB claim was covered in the evidence.
14I prefer Mr. Jones position. While it was clear that his preference was to proceed with the NEB claim, he did not abandon his IRB claim. Rather, it was advanced in the alternative. The Co-op suffers no prejudice as it cross-examined Mr. Jones very thoroughly on the subject of his employment and income. The claim for an IRB is still a live issue.
Is Mr. Jones’s claim for an NEB barred by s. 12 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) because he qualified for an IRB?
15If find that Mr. Jones claim for a NEB is barred by the provisions of s. 12 of the Schedule which states that he is not entitled to an NEB if he qualifies for an IRB. When Mr. Jones submitted his OCF-1 it stated that he was employed and had been working for “Paul Hay (Earth Man Herbals)” from August 2016. His OCF-3 states he was working as a “Store Manager. He asked for 2 weeks off.” The two forms establish that he has been working since August 2016 and it flows from this that he is entitled to an IRB.
16Mr. Jones points out that the OCF-3 also identifies that he meets the test for an NEB. In his submission, that fact should have put the insurer on notice that Mr. Jones might qualify for either an IRB or an NEB. The Co-op responds that, once it was determined that he qualified for an IRB, he no longer qualified for an NEB. There are several provisions of the Schedule that are engaged in this analysis.
17Mr. Jones was entitled to an IRB by virtue of s. 5 of the Schedule because, according to his OCF-1 and OCF-3 he was working at the time of the accident. The starting point for entitlement to an NEB is s. 12. The operative portions state:
(1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:
The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. [emphasis added]
18Mr. Jones submits that, by virtue of his filing an OCF-10, he no longer qualifies for an IRB, so he satisfies that non-qualification test. In making this submission, Mr. Jones relies on s. 35(3) of the Schedule which states that an election is final, except where the insured has suffered a catastrophic impairment. The critical fact in this case, in my opinion, is that the election was unilateral. In making a unilateral election, Mr. Jones ran afoul of the provisions of s. 35(1). That section states:
If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.[emphasis added]
19Nothing in the section addresses a unilateral right to make an election on the part of an applicant. It is for the insurer to review the application and determine if there are possible claims for an IRB and an NEB. Once it is determined that Mr. Jones was working and unequivocally qualifies for an IRB, then, by virtue of s. 12, there is no further requirement to put Mr. Jones to his election, notwithstanding that he might also meet the test for an NEB if he were not working. Mr. Jones cannot unilaterally frustrate the wording of the Schedule by filing an unsolicited OCF-10.
20If I accept the interpretation advanced by Mr. Jones, then the words in s. 12 “and does not qualify for an income replacement benefit” are rendered nugatory. On such an interpretation, the Schedule might be greatly simplified by simply stating that Mr. Jones may at any time elect between an IRB and an NEB without the need for qualifying wording. The Legislature included the qualifying wording to cover cases of true ambiguity in an applicant’s claim for a specified benefit, not situations such as this where Mr. Jones entitlement to an IRB is clear from his OCF-1 and OCF-3.
21Mr. Jones relies on the Ontario Court of Appeal decision in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508 (“Galdamez”) for the proposition that an insured my qualify for an IRB but claim an NEB. I find Galdamez distinguishable as it dealt with the previous version of the Schedule, Statutory Accident Benefits Schedule — Accidents on or After November 1, 1996 O. Reg 403/96. In Galdamez, the insured applied for and was paid an income replacement benefit. She returned to work and her insurer stopped further IRB payments. She then elected an NEB. The insurer took the position that, since she had qualified for an IRB, she could not apply for an NEB. The Court of Appeal disagreed and held that could qualify for both an IRB and an NEB and apply for each serially.
22That version of the Schedule did not provide for an irrevocable election. By enacting a provision for an irrevocable election in the Schedule, the Legislature made clear its intention that receipt of an either of an NEB or an IRB were mutually exclusive remedies.
Is Mr. Jones claim for an NEB barred by the 2-year limitation period in s. 56 of the Schedule because it was denied on April 4, 2018 and he did not commence his application for an NEB to the Tribunal until December 2, 2020?
23There is no dispute between the parties that Mr. Jones filed his claim for an NEB beyond the 2-year limitation period set out in s. 56 of the Schedule or that the denial meets the test in Smith. He himself recognizes that it was filed approximately 8 months after the 2-year limitation period expired. Unless I determine that I have discretion to extend the limitation period in s. 56 and exercise that discretion in Mr. Jones favour, he is barred by s. 56 from advancing a claim for an NEB.
Should I exercise my discretion, if any, under s. 7 of the Licence Appeal Tribunal Act, 1999 to extend the limitation period set out in the Schedule?
24While I question whether I have discretion under s. 7 of the LATA and find myself in agreement with the reasoning in S. S. v. Aviva and M.N. v. Aviva, I need not consider that issue in the current case. In applying the four factors in Manuel v. Registrar, I find that, based on the justice of the case, I should not exercise my discretion. In coming to that determination, I note that the delay is lengthy – 8 months. I accept that Mr. Jones legal representatives moved expeditiously when they became aware of the OCF-10, but there is no explanation of Mr. Jones taking no steps to advance his claim for an NEB in the face of a clear and unequivocal denial of an NEB in both February 2018 before he made his election and again in April 2018 when the denial letter was sent.
25There is significant prejudice to the Co-op. The record shows that the Co-op sent several letters to Mr. Jones arranging for insurer examinations to determine his entitlement to an IRB. The test for an NEB is materially different and would require a different focus for any insurers examinations. Nothing in the record indicates that Mr. Jones advised the Co-op that he was seeking an NEB during this period. Its ability to now properly examine Mr. Jones has been compromised and Mr. Jones has not pointed to anything that would overcome that prejudice. Finally, Mr. Jones claim for an NEB is totally meritless. This case is unique because I am asked to make this determination after having heard the evidence on the merits. Taken as a whole, the evidence establishes that the accident has had little impact on Mr. Jones’s ability to live a normal life. He socializes, shops, and with pacing, attends to his housekeeping and self-care This does not even come close to a complete inability to live a normal life.
SUBSTANTIVE ISSUES
26The substantive issues in dispute are as follows:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
b. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week for the time period from July 23, 2018 to date and ongoing?
c. Is the applicant entitled to a medical benefit in the amount of $2,472.90 for chiropractic services recommended in a treatment plan submitted on September 13, 2018 and denied by the respondent on September 26, 2018?
d. Is the applicant entitled to a medical benefit in the amount of $1,382.48 for chiropractic services recommended in a treatment plan submitted on July 24, 2018 and denied by the respondent on July 31, 2018?
e. Is the applicant entitled to a medical benefit in the amount of $1,678.00 for chiropractic services recommended in a treatment plan submitted on January 16, 2019 and denied by the respondent on January 25, 2019?
f. Is the applicant entitled to a medical benefit in the amount of $1,973.60 for medical services recommended in a treatment plan submitted on October 30, 2018 and denied by the respondent on November 2, 2018?
g. Is the applicant entitled to a medical benefit in the amount of $1,530.29 for chiropractic services recommended in a treatment plan submitted on March 26, 2019 and denied by the respondent on April 9, 2019?
h. Is the applicant entitled to an examination expense in the amount of $1,995.33 for a psychological assessment recommended in a treatment plan submitted on October 23, 2018 and denied by the respondent on November 5, 2018?
i. Is the applicant entitled to interest on overdue payment of benefits?
27In addressing these issues, if I find that Mr. Jones injuries are predominantly minor and subject to the $3,500 coverage limitation in s. 18(1), then I need not consider the treatment plans in [26] c. through h.
Mr. Jones Suffered Predominantly Minor Injuries
28There are serious inconsistencies in Mr. Jones’s medical evidence that lead me to conclude that he suffered predominantly minor injuries. Save and except for reports from his family doctor, Dr. Chan, that are not supported by specialists reports and the insurer examinations, the evidence indicates that he suffered only soft tissue physical injuries. I accept that he was diagnosed with a psychological condition by a psychiatrist, Dr. Showraki, but there is no evidence that this condition impaired his activities in any manner.
Definition and Section 18
29The term “minor injury” is defined in section 3 (1) of the Schedule 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.” This list is best caught by the term “soft tissue injuries” and that is what I will use hereafter.
30Mr. Jones points to his psychological diagnosis from Dr. Showraki of “adjustment disorder secondary to his MVA.” He correctly states that that is not a soft tissue injury and therefore his injuries are not minor. While he is correct, by virtue of s. 18(1), the $3,500 coverage limit applies to “an impairment that is predominantly a minor injury.” The use of the word “predominantly” contemplates a broader range of injuries than just soft tissue injuries and asks that I focus on the impairment such injury causes Mr. Jones. Before considering the psychological diagnosis, I will review the evidence of Mr. Jones physical injuries.
31On the day after the accident, January 11, 2018, Mr. Jones attended at Humber River Hospital – Wilson site complaining of pain from injuries sustained in the accident. He was examined and x-rays were taken but it appears that nothing more than soft tissue injuries were noted as he was sent home with Tylenol 3 painkillers. Mr. Jones did not produce the medical records from this visit.
32Mr. Jones evidence was that prior to the accident his family physician was Dr. William Chan. According to Mr. Jones, Dr. Chan had been his family physician since he moved into the area in 2017 or so. Dr. Chan testified that he first met Mr. Jones after the accident on January 15, 2018. This lack of detail was a common thread of Mr. Jones testimony.
33In reviewing Mr. Jones medical history at the first visit, Dr. Chan notes only that Mr. Jones suffered from asthma since 2000. Mr. Jones medical history is more complex than this simple statement would suggest. The decoded OHIP summary shows a psychiatric consultation in March 2016 and several x-rays of his chest, wrist and hand on December 1, 2017, that is, about 6 weeks pre-accident. The failure to give an accurate medical history, of course, may result in Dr. Chan assigning medical complaints to the effects of the accident when they were, in fact, pre-existing.
34Over the next several years or so, Mr. Jones visited, or tele-consulted Dr. Chan. He had a recurring complaint of right knee pain that Dr. Chan felt was serious enough to refer for imaging studies and a consultation with an orthopaedic surgeon, Dr. Guerra. Dr. Chan diagnosed Mr. Jones with the following right knee issues:
a. Contusions (January 15, 2018 and July 2, 2019);
b. Tenosynovitis (November 3, 2018, February 11, 2019, February 25, 2019, April 30, 2020, and May 6, 2020); and
c. Osteoarthritis (January 7, 2020, April 7, 2020); and also
d. Left knee tenosynovitis on March 3, 2018 and July 25, 2019.
35In his evidence, Dr. Chan stated that tenosynovitis, contusions and osteoarthritis are all aspects of the same thing as they relate to inflammation of the knee. Accepting this statement for its truth, it would indicate that Mr. Jones was complaining of osteoarthritis symptoms immediately post-accident. Dr. Chan also noted that he ascribes the osteoarthritis to degenerative changes triggered by the accident. The other possibility Dr. Chan addressed is that the osteoarthritis is hereditary, something he rejects because of Mr. Jones’s youth and the fact that hereditary osteoarthritis would be expected to be bilateral. He does not account for his two diagnoses of left knee tenosynovitis in discounting bilateral osteoarthritis.
36Starting at the hospital the day after the accident and following multiple visits to Dr. Chan, Mr. Jones was prescribed anti-inflammatories. He stated that he does not like to take medication as a result of his upbringing, so he has not filled the prescriptions or taken the recommended medication.
37The Co-op points me to the report of Dr. Guerra, an orthopaedic surgeon that Dr. Chan referred Mr. Jones to in March 2019. Dr. Guerra examined Mr. Jones on March 14, 2019 and found that his right knee had no swelling. There was pain on compression of the patellofemoral compartment. Overall, Dr. Guerra found that Mr. Jones’s right knee was perfectly stable and that a recent ultrasound showed nothing significant. Dr. Guerra recommended exercise; sent Mr. Jones for physiotherapy; and asked to see Mr. Jones again in 3 months. Mr. Jones did not re-attend.
38There is support for Dr. Chan’s diagnosis of right knee osteoarthritis in the MRI report of Dr. Peter Liu dated July 22, 2019. Dr. Liu notes that there are mild degenerative changes in the “patellofemoral joint and the medial joint compartments.” Dr. Guerra did not have this report available to him as it post-dates his examination, but, in light of its findings, I conclude that Mr. Jones has developing osteoarthritis in his right knee. I also accept that there is evidence of issues with the left knee discounted by Dr. Chan that calls into question his conclusion that the arthritis is not hereditary. On the evidence before me, Mr. Jones has failed to prove on a balance of probabilities that his right knee osteoarthritis was caused by the accident.
39I find on a balance of probabilities that Mr. Jones suffered soft tissue injuries to his right knee in the accident that fall within the definition of minor injury in s. 3. In coming to this conclusion, I note that the Co-op’s expert witness, Dr. Mohammed Khan, a specialist in physical medicine and rehabilitation, reviewed all of the imaging studies over an initial report dated July 19, 2018, and addendum reports dated August 13, 2019 and September 26, 2019, and concluded that Mr. Jones accident-related injuries are considered to be minor injuries. He based his conclusion on his opinion that the right knee MRI does not show any significant underlying pathology.
40As stated above, Mr. Jones was seen by Dr. Showraki on a referral from Dr. Chan because he complained of depression to Dr. Chan on May 3, 2019. He saw Dr. Showraki on September 24, 2019. In a report dated the same day, Dr. Showraki diagnoses Mr. Jones with “adjustment disorder secondary to his MVA [motor vehicle accident].” There are problems with this statement and the manner in which it links the psychiatric condition to the MVA. Neither Dr. Chan nor Dr. Showraki were aware that Mr. Jones had previously consulted a psychiatrist in 2016. In fact, Dr. Showraki notes: “His medical is non-pertinent…. He has never been under … any psychiatric care or under psychotherapy.”
41Dr. Showraki prescribed antidepressants. Mr. Jones testimony was that he did not take the medication due to his general distaste for taking medication. I am left with the question of what impact this diagnosed condition had on Mr. Jones ability to function. I have no evidence me before to suggest that it impaired him in any manner. I find that the impairments sustained by Mr. Jones as a result of the accident were predominantly minor and that he is subject to the $3,500 treatment cap set out in s. 18(1) of the Schedule.
Mr. Jones Not Entitled to an IRB
42To be entitled to an IRB, Mr. Jones must establish that he was working at the time of the accident, that as a result of the accident and for the first 104 weeks thereafter he is substantially unable to carry out the essential tasks of his pre-accident employment and after 104 weeks he is “suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” Since the amount he is entitled to is 70% of his gross pre-accident income up to a maximum of $400, Mr. Jones must also provide evidence of the amount he was earning before the accident. The evidence is overwhelming that Mr. Jones does not satisfy any test for entitlement to an IRB.
43Throughout his examination-in-chief and for a large part of the cross-examination, Mr. Jones doggedly held to the position that he was attempting to set up a new company but was not working because he was not being paid. During that part of his testimony he was asserting a claim for an NEB and his evidence supported his entitlement to that benefit because he testified that he was not “employed” at the time of the accident. This position became untenable given his disclosure in the OCF-1 and OCF-3 and his statements made to the insurance examiners that gave details of the work he was doing. By the end of the cross-examination he had admitted that he was working and making up to $2,000/mth.
44Mr. Jones lives in subsidized housing and receives payments from Ontario Works. He did not disclose his monthly income to either his landlord or Ontario Works. He also did not disclose his income to the Canada Revenue Agency (“CRA”) and has paid no tax on it. These failures to disclose may be one of the reasons for his lengthy prevarication. He testified that he was paid in cash and kept no records. He has failed to produce records relating to his employment to the Co-op despite repeated requests.
45Section 4(5) of the Schedule provides that the quantum of entitlement to an IRB is dependent on the income disclosed to the CRA. Since Mr. Jones failed to report this income on his tax return, the quantum of his IRB is zero, even if he satisfies the tests for entitlement.
46There is surveillance evidence. It shows Mr. Jones walking, lightly tripping down a flight of stairs, carrying bags, and putting on his jacket. He carries out these tasks with superlative ease and no signs of pain. In one scene he pivots to look back to where his companion may be. When these videos were put to him in his examination-in-chief he testified that they showed the extent of his impairments. I accept his interpretation and conclude, with respect to the post-104-week test, that is, a complete inability to engage in any employment suited to him by education, training, or experience, that a broad range of jobs are available to him.
47He described his pre-accident employment as essentially door to door sales. His business associate would pick him up and they would spend the day going to stores to sell their product. The job involved sitting in the car, getting out and going inside to talk, and occasionally lifting shipments. He is seen doing these activities without limitation in the surveillance video.
48I find, on a balance of probabilities, that Mr. Jones is not entitled to an IRB because he does not suffer a substantial inability to perform the essential tasks of his employment or a complete inability to engage in any employment or self-employment for which he is suited by education, training, or experience.
ORDER
49Mr. Jones claim for an income replacement benefit and various treatment and assessments as set out in paragraph [26] above is dismissed.
50Since there is no finding of entitlement to a benefit, there is no interest.
Released: January 19, 2021
D. Gregory Flude, Vice-Chair