Citation: Goncalves v. Wawanesa Insurance, 2022 ONLAT 20-013261/AABS-AR

AMENDED RECONSIDERATION DECISION

Before:

D. Gregory Flude, Vice-Chair

Tribunal File Number:

20-013261/AABS

Case Name:

Alexandrinha Goncalves v. Wawanesa Insurance

Written Submissions by:

For the Applicant:

Dominik Gora, Counsel

For the Respondent:

Elisabeth van Rensburg, Counsel

OVERVIEW

1The Applicant, Alexandrinha Goncalves, requests reconsideration of the Tribunal’s preliminary issue decision wherein, applying s. 55 of the Statutory Accident Benefits Schedule – Effect September 1, 2010 O. Reg. 34/10 (“Schedule”), the Tribunal found that Ms. Goncalves could not proceed with a claim for an income replacement benefit (“IRB”) because she failed to attend an insurer’s examination arranged under s. 44 of the Schedule.

2Ms. Goncalves submits that the Tribunal made an error of fact or law such that it would likely have reached a different result had the error not been made (a “material error”). She relies on s. 18.2(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). She asks that I stay the decision released on October 19, 2021 and allow her claim for an IRB to proceed to a hearing.

RESULT

3Having reviewed the parties’ submissions, I find that Ms. Goncalves has not satisfied her onus on a reconsideration of showing a material error. Her request for reconsideration is denied.

BACKGROUND

4Ms. Goncalves was involved in a motor vehicle accident on July 13, 2018. She claimed entitlement to an IRB. In exercise of its rights under s. 44(1) of the Schedule, on February 14, 2019, Wawanesa arranged for Ms. Goncalves to attend examinations by healthcare practitioners of its choice, initially in March 2019 but those dates were rescheduled at Ms. Goncalves’s request to April 9, 11 and 15, 2019 (“IEs”). In the interim, the applicant returned to work on March 19, 2019. Ms. Goncalves failed to attend the rescheduled examinations, citing two reasons in a letter from her counsel dated March 27, 2019:

Ms. Goncalves returned to work on March 19, 2019.

You are requesting IEs on April 9, 11 and 15 with a P.T., Orthopaedic Surgeon, and Psychologist to address IRBs.

We deem unnecessary the assessments now that our client is working.

Furthermore, our client would be required to miss work time in order to attend the evaluations and this would be onerous.

5Wawanesa took the position that since Ms. Goncalves had returned to work, she was no longer entitled to an income replacement benefit.

6Ms. Goncalves appealed Wawanesa’s denial of benefits to the Tribunal. Initially her application did not seek payment of the IRB, but this claim was ultimately added at the case conference. It was also agreed at the case conference that the question of disentitlement to an IRB for non-attendance at the IEs would be the subject of a preliminary issue hearing.

7The preliminary issue was considered by the Tribunal and the decision was released on October 19, 2021. The Tribunal found that Ms. Goncalves was barred from proceeding with her claim for an IRB because of s. 55 of the Schedule. It declined to exercise its discretion under s. 55(2) to permit the matter to proceed on terms on the basis that Wawanesa would be prejudiced by being unable to conduct meaningful assessments of Ms. Goncalves’s ability to work after such a lapse of time.

Grounds for the Reconsideration.

8Rule 18(1) requires Ms. Goncalves to identify the grounds for reconsideration. She sets out three grounds at paragraph 2 of her submissions:

a. The Tribunal found in error of fact that the Respondent (hereinafter, "Wawanesa Insurance") had scheduled the insurance examinations shortly after the accident when no such examination was ever scheduled.

b. The Tribunal found in error of law that Wawanesa Insurance could require Ms. Goncalves to attend the section 44 insurance examination to determine income replacement benefit eligibility, which was scheduled after she had returned to her pre-accident level of employment.

c. The Tribunal found in error of fact that Ms. Goncalves' conduct regarding the insurance examinations resulted in prejudice to Wawanesa Insurance, without there being any evidence of prejudice in the factual record.

9She asserts that if any of these three errors had not been made, the Tribunal would have likely reached a different result. I would not give effect to any of these grounds.

ANALYSIS

1st Ground - Timing of Examination “Shortly after the Accident”

10The Tribunal outlined the respondent’s submissions at paragraphs [17] and [18] of the decision. It notes the respondent’s submission that: “[t]he respondent did offer two different dates for section 44 examinations shortly after the accident.” The Tribunal specifically accepted this submission that the dates for examination were “shortly after the accident.” At paragraph [19] the Tribunal agrees with “the respondent’s position” that the respondent is prejudiced by the failure of Ms. Goncalves to attend the IEs and cannot now develop an accurate picture of her condition at the time of her claim. At paragraph [20] the Tribunal addresses the bona fides of the request for IEs and notes that “the applicant's refusal to attend because she was working is not a valid reason to not attend proposed examinations.” The evidence supported these conclusions.

11A reading of the decision shows that the Tribunal was aware of the chronology. It is set out in detail in the Overview section. Given this awareness, the best that could be said for Ms. Goncalves objection to the use of the term “shortly after the accident” is that it is semantics. The accident was in July 2018. The respondent replied in a timely manner to ascertain Ms. Goncalves entitlement to benefits, including requesting a confirmation of employment (OCF-2) from her employer. When the OCF-2 indicated entitlement to short-term disability (STD) payments, which may operate to reduce and possibly eliminate Ms. Goncalves entitlement to payment of an IRB, Wawanesa requested details of the STD. These details were not forthcoming for several years, that is, until May 21, 2021, two and a half years after they were requested. In this context, it can be readily said that the request for IEs was “shortly after the accident.”

12While in Ms. Goncalves’s opinion the seven months between the accident and the February 2019 appointment letter cannot be described as “shortly after the accident,” that is how the Tribunal chose to describe it. There is no error of law or fact in this description. There is no suggestion that there were earlier appointments than those outlined in the chronology.

13Finally, Ms. Goncalves takes issue with the Tribunal’s finding that “the applicant's refusal to attend because she was working is not a valid reason to not attend proposed examinations.” She argues that the IEs scheduled for March were cancelled by Wawanesa voluntarily, not because she refused to attend. Ms. Goncalves misreads the decision. The Tribunal states at paragraph [6] that the March IEs were rescheduled at Ms. Goncalves’s request. It refers only to her counsel’s letter of March 8, 2019 and does not include any response from Wawanesa on that subject. The decision addresses her failure to attend the IEs scheduled for April 9, 11 and 15, 2019. It cites one of the reasons set out in her counsel’s letter of March 27, 2019, “[f]urthermore, our client would be required to miss work time in order to attend the evaluations and this would be onerous,” and holds that this is not a valid reason for refusing to attend. This finding was open to the Tribunal on the evidence and I see no error of fact or law.

2nd Ground – Attendance at IEs after the Return to Work

14Ms. Goncalves asserts, as a matter of law, that Wawanesa could not assess her for her entitlement to an IRB after she returned to work, because at that point she was not seeking an IRB. This position is best set out at paragraph 18 of her submissions:

Ms. Goncalves had already returned to work on March 19, 2019, when Wawanesa Insurance sent the letter, dated March 19, 2019, enclosing the second Notice of Examination. By operation of subsection 37(2)(e) of the SABS, and section 44(1) of the SABS Ms. Goncalves was no longer entitled to income replacement benefits because she had resumed her pre-accident employment duties, and such entitlement cannot be assessed retroactively through an in-person section 44(1) insurance examination under the SABS.

15The Tribunal rejected Ms. Goncalves submission on this ground. At paragraph [17] the Tribunal states: “[t]he respondent maintains it has the right to test the accuracy of the insured’s claims and to see if the applicant suffered from a substantial inability to perform the essential tasks of her employment, for the time frame she was claiming” [emphasis added]. In other words, it is Wawanesa’s position that the IRB claim is ongoing, despite the return to work. At paragraph [19] the Tribunal accepts Wawanesa’s position.

16While the Tribunal’s reasons for rejecting Ms. Goncalves submission are skeletal, in my view they are sufficient to permit meaningful review. If I am mistaken in this, since the argument in support of this ground is purely a matter of statutory interpretation, I am in as good a position as the Tribunal at first instance to decide it.

17Ms. Goncalves position with respect to the application of ss. 37(2)(e) and 44(1) of the Schedule focuses on the use of the present tense in s. 44(1). Section 37(2) addresses the discontinuance of payment of an IRB and subsection (e) provides that one ground for the discontinuance is a return to work. Thus, Ms. Goncalves entitlement to any IRB payment she had been receiving prior to her return to work on March 19, 2019 would stop from that date forward. What is at issue in this claim, of course, is not the stoppage of benefit but a determination of Ms. Goncalves’s initial entitlement to the benefit. It is arguable that s. 37(2)(e) has no application to these facts, however this distinction is not decisive.

18Section 44(1) gives Wawanesa the right to require Ms. Goncalves to attend at IEs. It states:

44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

19Ms. Goncalves submits that the words “an insured person is…entitled to a benefit” means that, as soon as she returned to work and by operation of s. 37(2)(e) she was no longer entitled to an IRB, Wawanesa lost the right to have her examined under s. 44(1). In her submission the use of the present tense requires her to have a current entitlement on the day of the IE. This position is seriously flawed and is not supported by the plain language of s. 44(1).

20The live issue before the Tribunal was Ms. Goncalves entitlement to an IRB. She continuously asserted that entitlement up to the date of the hearing, and now seeks her right to assert that entitlement to be affirmed on this reconsideration. These are actions in the present. Section 44(1) permits Wawanesa to take a cynical view of that claim and to have her assessed by healthcare professionals of its choice to confirm or deny that entitlement. By using the present tense, s. 44(1) allows Wawanesa its assessment right as long as Ms. Goncalves asserts entitlement to an IRB for any period. Had counsel’s March 27, 2019 letter abandoned Ms. Goncalves claim for an IRB, then her argument would be valid. In fact, she continued to assert her claim, preserving Wawanesa’s right to test it under s. 44.

21Ms. Goncalves’s interpretation negates the provisions of the Schedule that permit a temporary return to work. If Ms. Goncalves’s return to work was not permanent, and if, for instance, she alleged her impairments prohibited her permanent return to work, there would be the anomalous situation that Wawanesa’s IE rights would be periodical. It could schedule IEs but would lose the right to conduct them if she temporarily returned to work on or before the dates of the IEs, only to leave work shortly after those dates. It must be presumed that the Legislature did not intend an outcome that effectively frustrates Wawanesa’s right to assess Ms. Goncalves.

22It is perhaps not surprising that Ms. Goncalves did not provide any case law in support of her interpretation of these provisions. Ms. Goncalves was asserting her claim for entitlement to an IRB continuously from receipt of the initial OCF-3 onward. I would not give effect to this ground for reconsideration.

3rd Ground – No Evidence of Prejudice

23I disagree with Ms. Goncalves submission that the Tribunal had no evidence of prejudice before it when it made the decision. She misunderstands the nature of the prejudice. Her focus is on March and April 2019 when Wawanesa scheduled the IEs. That is not the period the Tribunal considered in its prejudice analysis. It considered the period up to the hearing.

24The date of the decision was October 19, 2021. It followed on from submissions advanced in the summer of 2021 and an oral hearing scheduled in late August 2021, that is, over three years from the date of the accident and over two years from the return to work. Ms. Goncalves acknowledged at paragraph 3 of her hearing submissions that, “[a]s a result of the Accident she was injured. Her injuries were soft tissue in nature. She did not break any bones or tear any ligaments or tendons.” There is evidence of prejudice relied on by the Tribunal. The evidence of her permanent return to work shows her injuries had largely resolved by March 2019 at latest. With two further years of recovery, by the date of the hearing Wawanesa was denied any opportunity to assess her condition in close temporal proximity to the time period for which she seeks compensation.

25Further, it was Ms. Goncalves who was asking the Tribunal to exercise its discretion under s. 55 to permit her to proceed to a hearing on this issue. It was her onus to convince the Tribunal to exercise its discretion. In paragraphs [17] through [19] the Tribunal set out its reasoning why she failed to do so. I would not give effect to this ground for reconsideration.

CONCLUSION AND ORDER

26Ms. Goncalves’s has failed to point to any error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.

27I deny Ms. Goncalves’s request for reconsideration.

28In accordance with the case conference report and order released on May 4, 2021, within 30 days of the release of this reconsideration decision the Tribunal shall schedule a case conference to address the procedure for dealing with the remaining issues in dispute.

D. Gregory Flude

Vice-Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division