Hilaire v. Sonnet Insurance Company, 2022 CanLII 93716

Citation: Hilaire v. Sonnet Insurance Company, 2022 ONLAT 20-006329/AABS

Licence Appeal Tribunal File Number: 20-006329/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:

Jean Hilaire

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR: Daniela Corapi

APPEARANCES:

For the Applicant: Jean Hilaire, Applicant Thamara Jeyakumar/Tania Lanteigne, Paralegal

For the Respondent: Sonnet Insurance Company Lisa Armstrong, Counsel

HEARD: In Writing by Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant, J.H., was involved in an automobile accident on July 19, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”) from the respondent.

2The respondent, Sonnet, denied J.H.’s claims because it had determined that all of J.H.’s injuries fit within the definition of “minor injury” as prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“MIG”).¹ As a result, J.H. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

3At the time of the accident, the applicant was 45 years of age and employed full-time as a forklift driver. Following the accident, J.H. was off work for one day and returned to work on July 20, 2018.

4The parties were unable to resolve their dispute at the case conference held on January 29, 2021, and the matter proceeded to a written hearing on August 3, 2021.

ISSUES

5As agreed to by the parties, the issues to be decided at the hearing include:

1. Are the applicant's injuries predominately minor as in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline ("MIG")?
2. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period January 6, 2020 to July 19, 2020?
3. Is the respondent entitled to a repayment of non-earner benefits in the amount of $6,105.00?
4. Is the applicant entitled to a medical benefit in the amount of $1,995.33 for psychological services, denied December 21, 2018?
5. Is the applicant entitled to a medical benefit in the amount of $2,148.20 for physiotherapy services, denied May 24, 2019?
6. Is the applicant entitled to a medical benefit in the amount of $2,564.80 for physiotherapy services, denied January 22, 2019?
7. Is the applicant entitled to a medical benefit in the amount of $2,860.40 for physiotherapy services, denied December 12, 2018?
8. Is the applicant entitled to a medical benefit in the amount of $2,269.34 for physiotherapy services, denied March 27, 2019?
9. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6I find that:

a. J.H. sustained predominately minor injuries as defined under the Schedule;

b. J.H. has failed to prove on a balance of probabilities that he is removed from the MIG as a result of a pre-existing medical condition that would prevent him from maximal recovery under the MIG monetary limit;

c. J.H. is not entitled to non-earner benefits;

d. The respondent is entitled to repayment of NEBs in the amount of $6,105.00, in addition to interest pursuant to section 52(5);

e. As I have found that J.H.’s injuries fall within the MIG and the MIG cap has been exhausted, it is unnecessary for me to assess whether the treatment plans are reasonable and necessary; and

f. As no benefit is owed to J.H., it follows that no interest is owed.

part I: Did J.H. sustain predominately minor injuries as defined under the Schedule?

7On the date of the accident, the applicant states that he was stopped at a red light when he was rear-ended by another vehicle. The applicant submits that he sustained physical and psychological injuries which are not predominantly minor in nature.

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

10The onus is on J.H. to show that his injuries fall outside of the MIG.² In the event that I find that J.H.’s injuries are “minor injuries” as prescribed by the Schedule, J.H. argues in the alternative that he should be removed from the MIG because his pre-existing medical conditions will prevent him from achieving maximal recovery under the MIG limits.

i) Soft-Tissue Injuries

11Immediately after the accident, J.H. visited Scarborough General Hospital with complaints relating to back and left knee pain. He was diagnosed with back pain, whiplash and prescribed naproxen to relieve pain.

12Approximately 5 days after the accident, J.H. was seen by Dr. McCutcheon, chiropractor. Dr. McCutcheon diagnosed J.H. with whiplash disorder, neck pain with neurological signs, sprain and strain of the lumber spine, malaise and fatigue, headaches, sleep disorders and subluxation complex.³

13A few days following the accident, cervical spine x-rays were completed indicating soft tissue calcifications. Moreover, x-rays showed mild levoscoliosis in the lower lumber spine.

14Approximately 3 months following the accident, J.H. also saw Dr. Cameron, Orthopedic Surgeon. By way of report dated October 4, 2018, Dr. Cameron stated, “this man obviously has soft tissue injuries…these will get better…the passive therapies they are giving him now should stop now and forever”. Dr. Cameron suggested that J.H. avoid sitting and try to move his body to avoid stiffening up his muscles; and that J.H. engage in an active exercise program for range of motion and strengthening. He also made the following remarks and findings in his report regarding the applicant’s injuries:

i. J.H. is medically fit and otherwise healthy;

ii. He is not experiencing spasms;

iii. He strained his neck and back;

iv. He has full range of motion of the neck and back (although, with some pain);

v. Reflexes, power and sensation in his arms and legs are “normal”;

vi. His knees and hips are “normal”; and

vii. He has full movement in his shoulders.

15On February 4, 2020, J.H. completed x-rays on his knee which showed a new thickening of the suprapatellar soft issues; as well as an ultrasound which showed a knee effusion.

16Based on the evidence before me, I find that J.H. sustained soft tissue injuries as a result of the subject accident, which are minor injuries as defined in s. 3 of the Schedule. I must now consider whether or not J.H. should be removed from the MIG as a result of any pre-existing medical conditions and injuries which he sustained in a 2009 motor vehicle accident.

ii) Pre-existing Injuries

17Approximately 9 years prior to the subject accident, J.H. was involved in a motor vehicle accident (“2009 accident”).

18As a result of the subject accident, J.H. argues that his pre-existing physical conditions which were sustained in the 2009 accident were aggravated and he should therefore be removed from the MIG.

19J.H. makes no submissions with respect to pre-existing psychological injuries.

20For the reasons outline below, I find that J.H. has failed to prove on a balance of probabilities that he is removed from the MIG as a result of any physical or psychological pre-existing conditions.

The Law

21Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements in order to be removed from the MIG:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁴

22The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude an applicant’s impairment from the MIG; rather, it must be shown to prevent maximal recovery within the cap imposed by the MIG.

Analysis

23The applicant states that during his initial intake with the above-mentioned medical practitioners, he mentioned that he was involved in a previous motor vehicle accident in 2009. He further submits that he had pre-existing physical impairments which added immense pain and suffering to the impairments he sustained in the subject accident.

24In support of his position in relation to pre-existing injuries from the 2009 Accident, J.H. states that he complained to his general practitioner about the following pre-existing conditions:

iii. Knee pain on July 6, 2015 (J.H. states that he saw a pain specialist in relation to his knee pain on August 11, 2015);

iv. Back pain on December 28, 2015;

v. Shoulder, knee and back pain on January 23, 2016;

25Moreover, the applicant relies on the clinical notes and records from One Stop Medical and Scarborough General Hospital, and prescription summaries.⁵

26Notwithstanding the above submissions, the medical reports and evidence filed by the applicant do not persuade me that the pre-existing conditions alleged prevent the applicant from achieving maximal recovery. For instance, the applicant attempts to frame his knee and back pain as chronic conditions; however, he produced little objective evidence (i.e. medical reports, clinical notes and records) to substantiate any diagnosis of a chronic condition.

27Moreover, there is little contemporaneous evidence with the subject accident to support the pre-existing injury-related complaints. For instance, in the OCF-3 prepared by Dr. McCutcheon, where asked whether the applicant has any disease, condition, or injury that affected his ability to perform activities of daily living, Dr. McCutcheon selected “unknown”.

28I also find that J.H. has failed to submit any evidence that any of his pre-existing physical conditions would prevent him from achieving maximal recovery within the MIG following the subject accident. In fact, the evidence supports the contrary. For example, in his submissions, J.H. states that he reported “feeling better with vimovo for back pain” on August 8, 2016.

29J.H. argues that his pre-existing physical conditions should remove him from the MIG. For the reasons outlined above, I find that J.H. has failed to prove on a balance of probabilities that his pre-existing physical conditions would prevent his maximal recovery within the MIG limits.

30In addition to the above, while I acknowledge that J.H. appears to have sustained injuries from a previous motor vehicle accident in 2009, aggravation of previous injuries is not the test to meet for removal from the MIG. The applicant has not shown that his pre-existing injuries prevent him from reaching maximal recovery within the cap imposed by the MIG.

31Because I have found that J.H.’s injuries fall within the MIG and as the MIG cap has been exhausted, it is unnecessary for me to assess whether the treatment plans are reasonable and necessary.

part II: is the APplicant entitled to non-earner benefts?

32The disability test for a non-earner benefit is set out in s. 12(1) of the Schedule. To be eligible for this benefit, an applicant must prove, on a balance of probabilities, that as a result of and within 104 weeks of the accident, he suffers a “complete inability to carry on a normal life.”

33J.H. attended an intake appointment at Midland Wellness on July 24, 2018. During this visit, J.H. answered questions in relation to his ability to carry on tasks of daily living. Other than reporting some pain while performing tasks relating to personal care, as well as sitting and standing prolonged periods of time, J.H. reported that he is generally able to complete tasks relating to personal care, concentration, sleep, recreational and social activities, and walking.

34In support of his claim for NEBs, J.H. submits that he was working full-time hours as a forklift driver and subsequently switched to modified duties after the subject accident.

35The applicant relies on the case of Galdamez v. Allstate Insurance, where the Court of Appeal stated that the Schedule does not explicitly indicate that claimants cannot be working when applying for NEBs. He submits that engaging in work and earning an income does not disqualify him from obtaining NEBs.

36Section 3(7)(a) of the Schedule provides that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

37In Heath v. Economical Mutual Insurance Company,⁶ the Ontario Court of Appeal urges a claimant-focused inquiry that reflects the high threshold created by the language of the Schedule.

38This approach starts with a comparison of the claimant’s activities and life circumstances over a reasonable period of time, both pre and post-accident.

39To establish a “complete inability to carry on a normal life,” the claimant must also prove an uninterrupted accident-related disability or incapacity.

40An application of the Heath principles to the case before me is hindered by the lack of evidence and particulars regarding the applicant’s pre and post-accident activities and functioning. Specifically, the applicant has not tendered sufficient evidence to establish a baseline of his pre-accident activities. Mere lists of the applicant’s diagnoses do not satisfy the test to meet the NEB threshold, which requires a contextual analysis. Moreover, J.H.’s evidence and submissions fail to provide a sufficient basis for a finding of continuous impairment in all areas of the applicant’s life.

41Moreover, the evidence before me references J.H.’s pain and discomfort; it does not suggest that he must make adjustments to his routines or refrain from undertaking certain activities. Moreover, it does not establish that he is unable to engage in “substantially all” of his activities.

42The evidence before me falls short of establishing that J.H. was continually prevented from engaging in substantially all of his pre-accident activities. For instance, he has failed to provide particulars regarding the nature of modified duties post-accident, the length of time he was placed on modified duties, and what job duties aggravated his accident-related injuries. The evidence before me simply suggests that J.H. returned to work less than a week following the accident.

43Absent further details relating to the applicant’s pre-accident life and post-accident functioning, I am unable to conclude that he meets the Heath test of having a “complete inability to carry on a normal life.”

44The applicant has not established that he suffers a complete inability to carry on a normal life.

part III: is the respondent entitled to repayment of non-earner benefIts?

45The respondent submits that it erroneously repaid non-earner benefits to the applicant for the period between May 19, 2019 to January 5, 2020. As a result, the respondent submits that it has properly requested repayment in the amount of $6,105.00, in addition to interest owing.⁷

46The respondent has the burden of proving that the NEBs were paid as a result of an error, willful misrepresentation or fraud on a balance of probabilities. As explained below, I find that the respondent has demonstrated that it meets all of the requirements under s. 52 to justify repayment.⁸

The Law

47Section 52 of the Schedule concerns the repayment of benefits. Under section 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of willful misrepresentation or fraud.” Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

48The respondent has the burden of proving that the benefits were paid to J.H. as a result of an error or wilful misrepresentation or fraud on a balance of probabilities. Based upon the respondent’s submissions, it is seeking repayment on the basis that it was paid in error by the insurer.

49The respondent submits the following in support of its position:

a. The applicant returned to full-time work within a few days following the accident;

b. The respondent only received an OCF-3 (July 24, 2018) and requested that the applicant complete an OCF-10 (Election of Benefits form);

c. On September 5, 2018, the applicant submitted an OCF-3 (July 28, 2018) from Dr. Van, that supported the applicant’s entitlement to IRBs, but not to NEBs.

d. Approximately one year following Dr. Van’s OCF-3, the applicant submitted an OCF-10 (July 28, 2019) electing NEBs. The respondent paid the applicant NEBs in the amount of $13,468.00.

e. On May 28, 2020, the Insurer advised the Applicant that on review of the accident benefits file and the OCF-3 dated July 28, 2018, the Applicant’s was not entitled to non-earner benefits and the Insurer requested repayment in the amount of $6,105.00 erroneously paid to the Applicant over the previous 12 months. The Insurer noted that the OCF-3 dated July 28, 2018, did not support the Applicant’s entitlement to non-earner benefits. The Insurer also requested an explanation for the 12-month delay in the submission of the OCF-10 form.

f. The applicant has not provided an explanation for the delay in completing the OCF-10 and has not repaid NEBs.

Analysis

50The respondent submits that its claim for repayment is valid and compliant with the requirements set out in section 52 insofar that: 1) it provided a notice letter to the applicant on May 28, 2020; and 2) the notice letter meets the requirements set out in section 52(1) of the Schedule in relation to identifying that the benefit was paid in error; the payment period for which the repayment was being sought; and indicating the exact amount of the repayment being sought.

51The 12-month period referred to in s. 52(3) refers to the period of time from the date of notice under s. 52(2)(a) that an insurer is entitled to claim back repayment.⁹There is no requirement under s. 52(3) that the notice must be given within 12 months of the first payment. Rather, the requirement is for notice to be given within 12 months “after payment of the amount that is to be repaid.”¹⁰ When section 52 is read in its entirety, it clearly contemplates repayment in the circumstances of this case.

52By way of letter dated May 28, 2020, the respondent requested repayment of the NEBs in the amount of $6,105.00, in addition to interest owing. As indicated above, the time period for which NEBs were paid includes May 19, 2019 to January 5, 2020; as such, the respondent provided notice that it was seeking repayment to the applicant approximately four months after the payment of the amount that is to be repaid. I find this notice was provided within the 12-month period prescribed by s. 52(2).

53Pursuant to sections 52(2) and (3), I find that the respondent’s notice of request for repayment meets the timeline criteria to support its claim. Based on the respondent’s submissions, I am persuaded that the payment of NEBs was made in error by the respondent. The respondent continued to seek information regarding NEB entitlement, which demonstrates an ongoing effort to obtain information and clarification with respect to its error.

54Accordingly, as I find that the respondent is entitled to repayment of NEBs paid under s. 52; it follows that it may seek interest on outstanding and overdue amounts in accordance with s. 52(5).

CONCLUSION

55J.H. sustained predominately minor injuries as defined under the Schedule.

56J.H. has failed to prove on a balance of probabilities that he is removed from the MIG as a result of a pre-existing medical condition.

57J.H. has failed to meet the test for non-earner benefits.

58The respondent is entitled to repayment of NEBs in the amount of $6,105.00, in addition to interest pursuant to section 52(5).

ORDER

59Pursuant to s. 52, the respondent is entitled to repayment of NEBs from the applicant in the amount of $6,105.00, in addition to interest pursuant to section 52(5).

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3OCF-3 provided by Dr. McCutcheon, dated July 24th, 2018. Written submissions of the Applicant, Tab 2.
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
5. 5Applicant’s Reply Submissions, Part II, Paragraph 1.
6. 62009 ONCA 391.
7. 7Interest calculated in accordance with section 52 of the Schedule.
8. 8Michalowski v. St. Paul Fire and Marine Insurance Company, (FSCO A98-001492, July 9, 1999).
9. 9Aviva Insurance Canada v. H.H., 2019 CanLII 94057 (ON LAT Reconsideration)
10. 10JVM v. Aviva General Insurance Company, 2020 CanLII 12706 (ON LAT); Aviva General Insurance Company v. Muthusamythevar, 2020 CanLII 94791 (ON LAT)