Licence Appeal Tribunal File Number: 20-006884/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:
Panchalingam Nagalingam
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melody Maleki-Yazdi, Adjudicator
APPEARANCES:
For the Applicant:
Panchalingam Nagalingam, Applicant
Jono Schneider, Counsel
For the Respondent:
Courtney Sparks, Representative
Jason Frost, Counsel
Court Reporter:
Zahra Ahmad
Heard By Videoconference:
: October 13 and 14, 2021, and November 28, 2022.
BACKGROUND
1Panchalingam Nagalingam (“applicant”) was injured in an automobile accident (“accident”) on July 9, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)1 (“Schedule”). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when his claims for benefits were denied by the respondent.
2I heard testimonial evidence from the applicant.
ISSUES
3The following issues are in dispute for this hearing:
(i) Is the applicant entitled to an income replacement benefit (“IRB”) from July 16, 2019 to date and ongoing, and if so, in what amount?
(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 pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Common Rules”), as amended?
RESULT
4The applicant is not entitled to either pre-104-week IRBs or post-104-week IRBs. The applicant is not entitled to an award, costs or interest.
PROCEDURAL ISSUES
5The hearing held on November 28, 2022 was a “new” hearing. After the initial two hearing days held on October 13 and 14, 2021, the prior adjudicator wrote a decision dated October 29, 2021, in which the Tribunal ordered a re-hearing on the second day of the scheduled three-day hearing after the Tribunal unilaterally declared a mistrial during the proceedings. The respondent requested a reconsideration and on reconsideration, the Tribunal decided that the decision made was an exceptional issue of procedural unfairness that required rectification by the Tribunal through a broad approach. The Tribunal ordered a new hearing and it was to be based upon the identical issues, witnesses and evidence. The parties were permitted to proceed on the first two days of the transcript and evidence. The reconsideration set out that at the outset of the new hearing, the applicant was invited to bring motions for a fresh examination-in-chief and to raise any evidentiary concerns before the new adjudicator, as requested. The issue of the applicant’s costs was formally added to the issues in dispute.
6Another procedural dispute was that the applicant objected to certain documents being entered as exhibits and questions that pertained to his residential address prior to the accident. Due to the documents’ relevance, I allowed particular pages within documents to be entered as exhibits despite the applicant’s objections because the relevant nature of the documentation outweighed any prejudice facing the applicant through the addition of these documents.
7Lastly, the respondent filed a motion objecting to the opinion evidence of Dr. Jeff Weininger, the chiropractor whose name is on the applicant’s disability certificate (OCF-3). The respondent submits that the OCF-3 cannot be treated as expert evidence because there is no evidentiary evidence along with the OCF-3. Furthermore, the respondent submits that there is no Acknowledgement of Expert’s Duty form completed by Dr. Weininger. The respondent submits that this goes to the weight I place on the OCF-3 evidence. I do not qualify Dr. Jeff Weininger as an expert who has prepared a report giving his expertise as a chiropractor for the purpose of this hearing, but rather only as a chiropractor who completed the OCF-3.
ANALYSIS
Section 33 of the Schedule
8The applicant submits that following the accident, he did not return to work. He submits that he is entitled to IRBs due to being substantially unable to work as a result of the injuries sustained in the accident. The applicant is also claiming post-104-week IRBs.
9The respondent argues that the applicant is not entitled to IRBs because the applicant did not comply with the request for documents under s. 33 of the Schedule. The respondent submits that it was reasonable for it to investigate the potential address misrepresentation issues, confirm whether s. 31 would bar the claim and in the meantime arrange its insurer’s examinations (“IEs”).
10In the alternative to the above, the respondent argues that the applicant has not shown that he is substantially unable to perform his pre-accident job or any other job for which he is reasonably suited.
11The applicant submits that the respondent did not comply with the Schedule in responding to the application for IRBs and therefore, the IRBs are payable. Furthermore, the applicant submits that he has a reasonable explanation for any non-compliance with s. 33. The applicant also submits that the respondent knowingly sent letters to the wrong address because the applicant’s correct address was noted on the OCF-1 application, and the applicant also included his driver’s licence.
Withholding of IRBs
12Pursuant to section 36(2), in an application for a specified benefit/IRBs, the applicant shall submit a completed disability certificate (OCF-3) with his or her application (OCF-1) under s. 32.
13Pursuant to s. 36(4), within ten business days after the insurer receives the application and the completed disability certificate, if the insurer does not pay the benefit, it shall give the applicant a notice explaining the medical or other reasons why it believes the person is not entitled to the benefit, including whether a s. 44 assessment is required, or it can send a request to the applicant for information under ss. 33(1) or 33(2).
14Pursuant to s. 33(1), an applicant shall, within 10 business days after he receives a request from the insurer, provide the insurer with a list of items, including any information reasonably required to assist the insurer in determining the applicant’s entitlement to the benefit. Section 33(2) discusses the applicant submitting to an examination under oath, if requested by the insurer.
15The respondent submits that when it received the OCF-1 and OCF-3 from the applicant, the evidence filed showed that the policy was issued to an address where the applicant did not live. In response, the respondent made a s. 33 request for information regarding the OCF-1 and OCF-3 in order to determine where the applicant was living during material times. The respondent submits that it was reasonable to investigate and pursue a possible material misrepresentation which was relevant to the anticipated argument regarding a technical obligation to pay IRBs solely upon receipt of the OCF-3. The respondent submits that a material misrepresentation of the applicant’s address could have induced the respondent to enter into the contract of insurance at a significantly reduced monthly premium and then s. 31 would bar the claim for IRBs.
16The applicant submits that the respondent wanting to know why he moved addresses is not relevant. Furthermore, the applicant submits that there is no material misrepresentation. The applicant submits that the respondent cannot refuse to pay IRBs because it is investigating a possible material misrepresentation. The applicant submits that the respondent is supposed to pay the benefit and, if there is a material misrepresentation, the respondent can use the Schedule to get its money back from the applicant.
17I do not accept the applicant’s evidence that it was not relevant that the respondent wanted to know why the applicant moved addresses. I find that the respondent, in providing the letter of May 28, 2020, reasonably invoked s. 33(1) of the Schedule because the respondent was investigating the applicant’s address based on discrepancies noticed in the documentation and a material misrepresentation of the applicant’s address that could have barred the claim for IRBs.
Letters from the respondent to the applicant
18On May 28, 2020, the respondent sent a letter to the applicant advising that it had noticed discrepancies with respect to his claim. The respondent relied on s. 36(4)(c) and cited s. 33(1), s. 33(6) and s. 33(8). The respondent requested the following documentary information in order to address the applicant’s potential entitlement to receive IRBs: An explanation for the change in addresses; an explanation as to the delay in reporting his accident and his Application for Benefits (OCF-1) submission to the insurer; an explanation as to the discrepancy between the date of his Disability Certificate (OCF-3) and the date it was submitted to the insurer; a completed recorded statement; clinical notes and records (“CNRs”) from William Osler Health from the date of the accident to present; CNRs from his family physician from two years prior to the date of loss to present; and CNRs from any other physician he has seen since the accident from two years prior to the date of loss to present.
19On July 6, 2020, the respondent sent a letter to the applicant that it had not received a response to any of its s. 33 requests for information nor did it receive any communication from the applicant or his legal representative advising that there would be a delay in supplying the requested information. The respondent states that “if there is a reasonable explanation for the delay in responding to our request, we would ask you advise our office as soon as possible.” The applicant was also warned that the consequences of non-compliance found in s. 33(6) would also be relied upon by the respondent. The respondent also cited s. 33(8).
20Under s. 33(6), the Schedule states that the insurer is not liable to pay the benefit for the period of time in which the applicant fails to comply with s. 33(1), which is the request for the reasonably required information.
21Under s. 33(8), if the applicant complies with the s. 33(1) request for the documents, the insurer shall resume payment and if a reasonable explanation is provided by the applicant for the non-compliance of the s. 33 request, the respondent shall pay all amounts that were withheld.
22On August 11, 2020, the respondent sent a letter that it was following up with the applicant regarding its requests set out in the May 28 and July 6, 2020 letters. The respondent cited s. 33(1), s. 33(6) and s. 33(8).
23On September 23, 2020, the respondent sent a letter enclosing a chart outlining the productions it was requesting of the applicant. The respondent set out that it would pay the reasonable costs associated with providing the requested documentation. The letter also states that, “an insurer is not liable to pay any benefits in respect to any period during which an insured person fails to comply with s. 33 of the SABS. Should your client subsequently satisfy the s. 33 requests and provide a reasonable explanation for the delay in complying with s. 33, then any benefits withheld due to the delay will be paid by the insurer.”
24On January 29, 2021, the respondent sent a letter with the same wording as the September 23, 2020 letter.
25On March 31, 2021, the respondent sent a letter indicating that it had yet to receive the majority of the requested productions. The letter also indicates that as per the Case Conference Report dated November 9, 2020, the applicant had until the date of the letter to produce all requested documentations and asked for the status of the requested productions forthwith.
26The applicant acknowledges that he did not comply with all of the s. 33 requests, but argues that he had a reasonable explanation for his failure to comply. Further, the applicant argues that the respondent did not advise him of the curing mechanism under s. 34 in its letters. The applicant cites the decision of Mary Anthonipillai v. Security National Insurance Co.2 for the proposition that if the respondent does not advise its own customer of curing provisions under the Schedule, then it is barred from taking the position regarding s. 33 non-compliance.
27I do not accept the applicant’s submissions that the respondent did not discuss redeeming or curing provisions of the Schedule in its letters to the applicant. Section 34 is not the only curing provision. I find that a review of the May 28, 2020 letter, which was the respondent’s response within ten business days pursuant to s. 36(4), does not make reference to s. 34 of the Schedule; however, the letter did give reasons for the request and advised the applicant that no benefits are payable until he complies to the request pursuant to s. 33(8). As set out above, s. 33(8) indicates that if the applicant complies with the s. 33(1) request for the documents, the insurer shall resume payment and if a reasonable explanation is provided by the applicant for the non-compliance of the s. 33 request, then the respondent shall pay all amounts that were withheld. I find that the subsequent letters dated July 6, 2020, September 23, 2020 and January 29, 2021, were explicit in inviting the applicant to provide a reasonable explanation for any delay in complying with s. 33.
Reasonable explanation for the failure to comply
28Now, I will address whether the applicant provided a reasonable explanation for his failure to comply in providing the respondent with its requested productions. The respondent submits that numerous documents are still outstanding despite its requests from the applicant for the documents.
29The applicant submits that the OCF-1 and the attached insurance slip clearly show what his address is, so therefore, the respondent was sending letters to an incorrect address. In response to the applicant’s submissions regarding letters being sent to him to an incorrect address, the respondent submits that, pursuant to s. 64 of the Schedule, the respondent was not required to send documentation to the applicant’s address because the letters had been faxed to the applicant’s legal representative, so therefore, the applicant is deemed to have received them.
30S. 64(2)(a) of the Schedule sets out that “any document, including a notice in writing, required or permitted under this Regulation to be given to a person may be delivered, (a) by faxing the document to the person or to the solicitor or authorized representative, if any, of the person in accordance with subsection (19).”
31If the applicant is arguing that he has a reasonable explanation for the non-compliance with s. 33 due to the letters being mailed to an incorrect address, then I find that this is not a reasonable explanation because the applicant’s law firm received all of these letters and therefore, the applicant is deemed to have received them pursuant to s. 64(2)(a).
32Regarding the CNRs from the physiotherapy clinic, the applicant submits that the clinic, Professional Rehab, where the applicant attended for treatment has been out of business since the pandemic and that is why the applicant does not have the records. Although the request letters are not included in the applicant’s document brief, the applicant submits that he requested the CNRs. The respondent submits that there is no evidence that the clinic is out of business and that the business has a licence in good standing on the Financial Services Commission of Ontario website. I accept the applicant’s submissions that the clinic he was attending has closed. Therefore, the lack of productions regarding the CNRs from the clinic due to the closure of the clinic is a reasonable explanation for why the applicant did not provide them.
33Regarding the hospital records and OHIP summary, the applicant submits that in October of 2019, he told the respondent that he would be happy to request the documents if the respondent sent him the money for those records. The applicant submits that since the respondent did not send the money, then it was reasonable to assume that the respondent did not want the documents. I refer to a letter from the respondent to the applicant’s law firm dated September 23, 2020, where the respondent indicated that it would pay the reasonable costs associated with providing the requested documentation. Furthermore, the letter states, “If you would prefer to have your client execute authorizations for the release of any documents in the possession of a third party, please advise my office within 10 business days, and we will forward blank authorizations. Please provide us with detailed invoices so we can process payment for the requested productions as soon as possible.” I find that the applicant could have provided the documentation and been reimbursed, or alternatively, the applicant could have executed authorizations for the release of the documents, but chose not to do so. The applicant does not have a reasonable explanation for the non-compliance of these documents.
34Therefore, although I accept that there was a reasonable explanation regarding the lack of documentation from the physiotherapy clinic due to the applicant’s submission that it has closed, I find that there was no reasonable explanation for the non-compliance regarding all other requested documentation. Therefore, in accordance with the Schedule, the respondent was entitled to withhold the IRBs and will not be required to pay for the period of non-compliance (assuming same were payable) because the applicant failed to provide a reasonable explanation for the non-compliance in providing the reasonably required documents that were requested pursuant to s. 33 of the Schedule.
Substantive entitlement to IRBs
35Despite the analysis I have undertaken above, I have still considered whether the applicant is substantively entitled to income replacement benefits.
36The applicant submits that the respondent did not know that he was in an accident because he was a passenger in a car driven by a person who had insurance with a different insurer. The applicant did not receive any documents from the driver’s insurer. Therefore, it was only when the applicant went to his counsel’s office that he realized that as an insured of the respondent, he had benefits available to him. The OCF-1 was submitted to the respondent first and then the OCF-3 was first mistakenly sent to the driver’s insurer and the applicant does not know why or by whom it was sent. As noted above, the response from the respondent came within the 10 business days noted in the Schedule, when the respondent made the s. 33 request.
37Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment” within 104 weeks after the accident. This test becomes more stringent after 104 weeks post-accident, as insured persons must then show a “complete inability” to perform any role that they are reasonably suited to perform by way of experience, training, and education. The applicant has the onus of demonstrating his entitlement to this benefit on a balance of probabilities.
38I find that the applicant did not have a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident and that he is not entitled to IRBs. I am not convinced that the applicant suffers from any physical or psychological impairments from this accident which have rendered him unable to return to his pre-accident employment.
39The applicant submits that he is entitled to IRBs because he has a substantial inability to perform the essential tasks of his pre-accident employment as a cleaner. He submits that he is unable to return to work because he experiences pain in his right shoulder, his right knee, his right ankle as well as sometimes “mind” pain. He also submits he experiences memory loss. He submits that because of his right shoulder injury he cannot complete “maybe heavy job. Like lifting and stuff.” When asked how often he is unable to fully move his right shoulder, he submitted that sometimes he can and sometimes he cannot, and sometimes he cannot sleep.
40The respondent submits that the applicant does not meet the test for IRBs based on the expert opinions of its assessors, Dr. Paul Cha (chiropractor), Dr. Rajka Soric (physiatrist) and Dr. Janet Clewes (psychologist), who concluded that the applicant does not meet the pre-104-week IRB test.
41The applicant testified that he was born in Sri Lanka, where he finished grade 9 schooling. He then moved to Germany first and then to Canada. At the time of the accident, he was working at two jobs.
42Prior to the accident, the applicant worked at an inn as a full-time housekeeping manager for five years. The Employer’s Confirmation Form (OCF-2) dated November 1, 2019, indicates that he started working there on May 18, 2015, and continued until July 5, 2019. The accident was on July 9, 2019, so therefore, the applicant did not go back to work after the accident. The OCF-2 indicates that the essential task of his employment was carrying up to 50 pounds. He testified that his job was to walk all the time, in two buildings and 100 rooms, and go up and down the stairs to take the sheets and towels to change them. He also cleaned washrooms.
43The applicant submitted a second OCF-2 dated November 19, 2019, which indicates that he also worked at a rehabilitation centre as a general labourer starting on May 10, 2019, approximately two months before the accident and the last day worked was July 8, 2019. He testified that he would go there on the weekends and clean up.
44In support of his claim for IRBs, the applicant relies on the following: The ambulance call report dated July 9, 2019 and notes from Markham Stouffville Hospital, CNRs from Dr. Ng (the applicant’s family physician), Lynde Dermatology and Esthetics, the ambulance call report dated October 17, 2019 and notes from the Scarborough Hospital.
45I find that the applicant failed to submit any compelling evidence to support a finding that he was substantially unable to perform the work of a cleaner within the 104-weeks following the accident. The applicant is lacking CNRs that mention the accident or treatment for accident-related injuries. Furthermore, the results of the functional abilities evaluation and the applicant’s own self-reporting as expanded upon below indicate that he is not functionally impaired.
46After the accident and on that same day, the applicant took an ambulance to Markham Stouffville Hospital. He complained of pain to his hip and ankle. A physician who saw the applicant that day concluded that he seemed to have sprained his ankle in the accident. An X-Ray of his right ankle was conducted which showed no acute bone pathology. He was given a Tensor bandage and told to use medication for symptomatic relief. He was asked to see a family physician if he had persistent pain for greater than one week. Based on the CNRs provided and the applicant’s testimony at the hearing, the applicant did not follow this advice.
47The applicant went to visit Dr. Ng on July 30, 2019, approximately three weeks after the accident, and there is no mention in the CNRs of the accident or of any accident-related injuries. The respondent submits that the reason for this visit was regarding the warts on the applicant’s toes. I agree. When asked regarding his problem with the warts on his toes, the applicant testified that he has a pain problem with the warts.
48I find that the evidence shows that following the accident, the applicant was focused on his warts rather than on any accident-related injuries. On August 20, 2019, he saw a physician at Lynde Dermatology and Esthetics for the treatment of warts. He went back to that clinic for treatment for the warts throughout September and October of 2019.
49There are records that indicate that the applicant has experienced knee pain. On October 17, 2019, the applicant experienced a sudden onset of pain while at rest. He took an ambulance to the Scarborough Hospital. The emergency department notes indicate that the applicant’s chief complaint was lower extremity pain and specifically left knee pain. The X-ray of the applicant’s left knee was normal. The applicant testified that notations regarding left knee pain are wrong, and that he actually experienced right knee pain. The CNRs from South Markham Medical Centre on January 8, 2020, indicate that the applicant has had bilateral knee ache since the accident and has been doing therapy. I find that the applicant’s knee pain was not listed as a complaint on the day of the accident. It is not known when or how this knee pain developed.
50The applicant explained the lack of doctors’ visits following by accident by saying that he does not usually go to the doctor and he “mentally fixes himself”. He testified that a doctor cannot help him. The applicant testified that he went for physiotherapy because he wanted to get better. He testified that he experienced a little bit of improvement of his accident-related injuries and he stopped going to physiotherapy because the clinic closed.
51The respondent relies on the three assessments conducted by Dr. Cha, Dr. Soric, and Dr. Clewes in support of why the applicant is not entitled to IRBs. The applicant was assessed by Dr. Cha for a functional abilities evaluation on December 8, 2020 (report dated December 31, 2020), by Dr. Soric for a physiatry examination on December 16, 2020 (report dated December 31, 2020), and by Dr. Clewes for a psychological examination on June 30, 2021 (report dated July 15, 2021). Dr. Soric also conducted a physiatry examination paper review dated July 15, 2021.
52Dr. Cha in the IE report for a functional abilities’ evaluation noted that neither of the two OCF-2s submitted from the applicant’s two employers provided any further job description with the exception of mentioning that the applicant was responsible for carrying up to 50 pounds. He found that the applicant’s overall performance (consistency/effort) was valid and that he demonstrated variable strength, but his average strength fell within the medium category of the National Occupational Classification. The medium category is defined as performing activities that involve handling loads between 10 kg and 20 kg (22 to 44 lbs). Dr. Cha opined that the applicant’s pre-accident employment was most closely represented by the category of “Light Duty Cleaners.” This subgroup falls within the medium strength category. During the evaluation, the applicant exhibited functional ranges of motion throughout his spine and extremities. He exhibited accurate handling and fingering skills, and he was able to reach at, above and below shoulder level without observable difficulty. He also demonstrated the ability to stoop forward, crouch and kneel without support. The applicant told Dr. Cha that, functionally, he is able to perform only light household chores if needed and that he is independent with his personal care tasks, transportation and mobility.
53Dr. Soric in the IE report for a physiatrist examination noted that the applicant presented with two symptoms: intermittent right knee pain and intermittent right shoulder pain. The applicant indicated that he did not have any difficulties with sleep, emotional or psychological symptoms. Dr. Soric conducted a physical examination and opined that the applicant presented with normal clinical findings and that he did not have any residual pathology that she could attribute to his accident. Functionally, the applicant reported that he continues to drive. He does not use any assistive devices or gait aides and he remains independent in all aspects of personal care.
54Dr. Clewes in the IE report for a psychological assessment opined that, from a psychological perspective, the applicant did not suffer from any accident-related DSM-5 diagnostic conditions. Dr. Clewes administered two tests, the Pain Patient Profile and the Personality Assessment Inventory. The applicant’s scores for the Pain Patient Profile were valid. Dr. Clewes noted that the Personality Assessment Inventory contains a number of validity indexes and certain indicators fell outside of the normal range suggesting that the applicant may not have answered in a completely forthright manner and the findings may represent an inaccurate understanding of his current clinical functioning. For the Pain Patient Profile, the applicant’s scores on the depression, anxiety and somatization scales were in the average range when compared to samples of pain patients. Dr. Clewes opined that the results suggest that psychological factors are likely not having a significant role in the applicant’s physical recovery.
55The applicant made submissions that the respondent never provided him with the data from the psychometric tests. He cites the Supreme Court of Canada decision of R v. Abbey3 when submitting that if an opinion is put before the Court without the underlying evidence, then the Court cannot give any weight to the opinion. I find that the R v. Abbey decision discussed a psychiatrist who was basing his opinion entirely on second-hand evidence that was not otherwise proven. This is not the case here as Dr. Clewes provided a report and based it off first-hand evidence, including a clinical interview and psychometric tests. Therefore, I find that I can give weight to Dr. Clewes’ opinion.
56Dr. Soric conducted a physiatry examination paper review dated July 15, 2021. The documents she reviewed included the following: CNRs from Dr. Ng, the ambulance call report dated July 9, 2019, the notes from the Lynde Centre for Dermatology, the hospital record from the Scarborough Hospital emergency department, notes from Markham Stouffville Hospital, the functional abilities evaluation prepared by Dr. Cha and her own report. After a review of the additional documentation, her opinion remained unchanged from her prior report.
57I placed weight on the functional abilities evaluation. As noted above, Dr. Cha concluded the following regarding the applicant’s movements: He exhibited functional ranges of motion throughout his spine and extremities. He exhibited accurate handling and fingering skills, and he was able to reach at, above and below shoulder level without observable difficulty. He also demonstrated the ability to stoop forward, crouch and kneel without support.
58Functionally, the applicant testified that he swept the floors of the house and did his own laundry. He told Dr. Cha that he is able to perform only light household chores if needed and that he is independent with his personal care tasks, transportation and mobility. The applicant reported to Dr. Soric that he continues to drive. He does not use any assistive devices or gait aides and he remains independent in all aspects of personal care.
59I believe that the applicant has experienced difficulties since the accident. He testified that at the time of the accident he was living with his family and since then, he no longer lives with his family and has not seen his children. He testified that he was hurting too much mentally and physically, and that everybody hurt him, so he did not go to work.
60Despite these difficulties, I am not convinced that the applicant is unable to perform the essential tasks of his pre-accident employment as a result of the accident. I find that the applicant does not have a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident and that he is not entitled to IRBs.
61I find that the applicant also does not meet the more stringent post-104-week test for entitlement to IRBs. The statutory test to meet to be eligible for an IRB post 104 weeks is set out in s. 6 of the Schedule which provides that, for the period after the first 104 weeks of disability, the applicant must demonstrate he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. The applicant has not provided any evidence that addresses the complete inability test for post-104-week IRBs.
62I find the applicant has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He is not entitled to post-104-week IRBs.
Section 10 award
63Pursuant to section 10 of Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.
64As I have found that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.
Costs
65The applicant requested costs pursuant to Rule 19 of the Common Rules when making his submissions in response to the respondent’s request for reconsideration and the Tribunal formally added the issue of costs to the issues in dispute for this hearing.
66During the applicant’s closing submissions, he acknowledged that there was not much merit for the claim. When the applicant asked for the costs issue to be added prior, it was in relation to the prior adjudicator determining that the respondent had done something wrong and the applicant does not believe the respondent did do something wrong. The applicant does not wish to proceed with the issue, and in any event, the applicant’s request for costs is denied because there is no evidence that the respondent’s conduct was unreasonable, frivolous, vexatious or in bad faith. Therefore, no costs are awarded.
CONCLUSION and ORDER
67The applicant is not entitled to either pre-104-week IRBs or to post-104-week IRBs. The applicant is not entitled to an award, costs or interest.
Released: December 29, 2022
Melody Maleki-Yazdi
Adjudicator
Footnotes
- O. Reg. 34/10.
- Mary Anthonipillai v. Security National Insurance Co., 2013 ONFSCDRS 91
- R v Abbey, 1982 CanLII 25 (SCC), 1982 2 SCR 24.