Hing v. TD Insurance Meloche Monnex, 2023 CanLII 107267

Citation: Hing v. TD Insurance Meloche Monnex, 2023 ONLAT 21-014250/AABS

Licence Appeal Tribunal File Number: 21-014250/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Christopher Lee Hing

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Filipe Santos, Counsel

For the Respondent:

Maia Abbas, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Christopher Lee Hing (the “applicant”) was involved in an automobile accident on October 9, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied benefits by TD Insurance Meloche Monnex (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to income replacement benefits (“IRB”) in the amount of up to $400.00 per week over three different periods of time between October 16, 2019 and January 4, 2022?

ii. Is the applicant entitled to $2,460.00 for an orthopedic assessment, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) submitted January 25, 2022 and denied January 26, 2022?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons that follow, I find that:

i. The applicant is not owed IRB for the period of October 16, 2019 to January 4, 2022.

ii. The applicant is entitled to any amounts incurred for the plan dated January 25, 2022 for an orthopaedic assessment, starting on the 11^th business day after the respondent received the plan, with interest in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to an award.

ANALYSIS

Income Replacement Benefits (“IRB”)

4Two sections of the Schedule define the process required to determine entitlement to IRB. To receive payment for pre-104-week IRB under s. 5(1), the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. To receive payment for post-104-week IRB under s. 6, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. The applicant bears the burden of proving, on a balance of probabilities, that he meets the tests and criteria noted above.

5Section 7(1) of the Schedule establishes that weekly IRB payments are calculated by using 70 per cent of the insured person’s base amount less the total of all other income replacement assistance for the particular week the benefit is payable. Section 4(1) sets out that the base amount is the insured person’s gross annual employment income divided by 52. Other income replacement assistance includes short term disability (“STD”) benefits. In accordance with s. 7(3) of the Schedule, an insurer may also deduct 70 per cent of any gross employment income from the weekly IRB payable to an insured person received during the period in which he or she is eligible to receive an IRB.

6Neither party disputes the applicant’s eligibility for IRB. The primary dispute relates to the amount of IRB owing. The applicant claims entitlement to an unspecified amount of IRB. Meanwhile, the respondent takes the position that the amount of IRB owing is nil.

7At the time of the accident, the applicant was 51 years old and was employed as a quality analyst at TD Bank. Following the accident, the applicant took time off work for the period of October 10, 2019 to August 23, 2020 and for the period of January 9, 2021 to November 15, 2021. During these periods, the applicant received STD benefits. Further, the applicant worked on a full-time basis at his pre-accident employment for the period of August 24, 2020 to January 8, 2021, and after November 1, 2021, and as such, he received employment income for these periods. Despite receiving STD benefits and/or returning to work on a full-time basis following the accident, the applicant submits that he is owed IRB.

8The applicant initially submitted that he was owed IRB for three periods between October 16, 2019 and January 4, 2022, specifically (i) January 1, 2020 to August 24, 2020, (ii) January 24, 2021 to March 22, 2021, and (iii) March 22, 2021 to November 1, 2021. However, in submissions for the written hearing, the applicant conceded that he received STD benefits equivalent to 100 per cent of his pre-accident weekly income for the period of January 24, 2021 to March 22, 2021, and he withdrew his claim for this period. Therefore, he is only seeking IRB for the period of January 1, 2020 to August 24, 2020 and the period of March 22, 2021 to November 1, 2021.

9The applicant relies on three reports containing different IRB calculations. However, the applicant does not make submissions regarding the actual amount of IRB he is seeking for the period of October 16, 2019 to January 4, 2022. Additionally, the applicant does not make submissions on the amount of IRB he is seeking for the specific periods of January 1, 2020 to August 24, 2020 and of March 22, 2021 to November 1, 2021.

10In response, the respondent submits that there is no IRB owing. The respondent notes that according to the applicant’s paystubs for the period of October 7, 2019 to October 30, 2021, the amount of STD benefits paid were equivalent to 100 per cent of his pre-accident weekly income in 2019, 80 per cent of his pre-accident weekly income in 2020, and 75 per cent of his pre-accident weekly income in 2021. The respondent also submits that STD benefits are “other income replacement assistance” in accordance with s. 4(1) of the Schedule. Therefore, the gross weekly amount of this benefit is deductible from the weekly base amount of IRB.

11Further, the applicant received employment income on a full-time basis at his pre-accident employment for the period of August 23, 2020 to January 8, 2021 and after November 15, 2021. Correspondingly, the respondent submits that it is entitled to deduct 70 per cent of the applicant’s gross post-accident earnings from the weekly base amount of IRB, pursuant to s. 7(3) of the Schedule.

12As a result of the STD benefits and employment income received by the applicant, the weekly amount of IRB payable during the relevant periods is nil.

The applicant failed to demonstrate that he is owed IRB for the period of October 16, 2019 to January 4, 2022

13For the following reasons, I find that the applicant has not proven, on a balance of probabilities, that he is owed IRB for the period of October 16, 2019 to January 4, 2022.

14The applicant relies on three reports containing different IRB calculations and submits that IRB are owing as follows for the period of January 1, 2020 to August 24, 2020 and for the period of March 22, 2021 to November 1, 2021:

IRB Calculation Report of Davis Martindale Advisory Services dated June 10, 2020

IRB Calculation and Event Summary dated November 4, 2021

Christopher Lee Hing IRB Owed Table dated October 16, 2019 to July 5, 2022

Period of January 1, 2020 to August 24, 2020

$0.00 per week from January 1, 2020 to January 26, 2020 $400.00 per week from January 27, 2020 to August 24, 2020

$166.40 per week from January 1, 2020 to August 24, 2020

$108.12 per week from January 1, 2020 to January 14, 2020 $185.80 per week from January 15, 2020 to August 18, 2020 $0.00 per week from August 19, 2020 to August 24, 2020

Period of March 22, 2021 to November 1, 2021

N/A

$196.66 per week from March 22, 2021 to November 1, 2021

$0.00 per week from March 22, 2021 to March 23, 2021 $216.39 per week from March 24, 2021 to November 1, 2020

15I cannot rely on the IRB calculations submitted by the applicant as they are incorrect, and the weekly amounts of IRB in these reports were not calculated in accordance with the Schedule. Specifically, the base amount calculated in the applicant’s reports are inconsistent with the information found in the Employer’s Confirmation Form (OCF-2) dated January 20, 2020, the 2018 Income Tax Return, and the applicant’s paystubs. Further, the calculations do not deduct the gross STD benefits or 70 per cent of the gross post-employment income from the base amount.

16Moreover, I agree with the respondent’s approach in calculating the amount of IRB payable as it complies with the Schedule. Indeed, pursuant to ss. 4(1), 7(1) and 7(3) of the Schedule, the weekly amount of IRB payable is 70 per cent of the base amount less any amount received for STD benefits and less 70 per cent of the gross amount of post-accident income received. As noted by the respondent, the applicant received STD benefits equivalent to 100 per cent, 80 per cent, or 75 per cent of his pre-accident weekly income and/or post-accident employment income equivalent to 100 per cent of his pre-accident weekly income. Given that the amount of STD benefits and post-accident employment income the applicant received during the relevant period was greater than the base amount, the weekly amount of IRB payable is nil.

17Accordingly, the applicant has not established that IRB is owing for the period of October 16, 2019 to January 4, 2022.

The Treatment Plan

18To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

19Where an insurer has not properly denied a treatment plan in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11^th business day and ending on the day a compliant notice is provided.

20The applicant submits that the respondent is required to pay for the plan pursuant to s. 38(11) of the Schedule because its denial letter did not provide sufficient medical and any other reasons as required by s. 38(8) of the Schedule. The applicant relies on M.F.Z. v. Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT), T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), and M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT). Alternatively, the applicant argues that a review of his medical records supports that his injuries are orthopaedic in nature and that the plan is reasonable and necessary.

21In response, the respondent submits that the applicant’s injuries are not orthopaedic in nature, and that there is no medical information to support the need for an orthopaedic assessment. The respondent does not make any submissions regarding whether it complied with s. 38(8) of the Schedule.

The applicant is entitled to $2,460.00 for the orthopaedic assessment

22I agree with the applicant and find that he is entitled to $2,460.00 for an orthopaedic assessment.

23In its January 25, 2022 letter, the respondent advised the applicant that it does not agree to pay for the orthopaedic assessment for the medical reasons and all other reasons known as of the date of the notice as follows:

Client’s injuries are not orthopaedic in nature;

No current medical information on file to support this assessment.

24I find that the January 25, 2022 notice does not comply with the requirements under s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed treatment plan. Further, the reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule. Indeed, no specific details about the applicant’s diagnosis, prognosis, or the details of the treatment plan were provided, nor did the respondent identify what information that it required. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.

25Therefore, I find that the respondent’s January 25, 2022 notice is not compliant with s. 38(8) of the Schedule, and the respondent has not pointed me to any correspondence that cures the deficient notice. Consequently, the provisions set out in s. 38(11) of the Schedule are triggered, and the incurred portion of the plan dated January 25, 2022 for an orthopaedic assessment is payable starting on the 11^th business day after the respondent received the plan.

Interest

26The applicant is entitled to interest in accordance with s. 51 of the Schedule for any overdue amount relating to the orthopaedic assessment.

Award

27The applicant is not entitled to an award under s. 10 of Reg 664.

28Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payments of benefits.

29The applicant submits that the respondent unreasonably withheld funding for the orthopaedic assessment by deliberately ignoring supporting medical evidence, which was detrimental to his recovery.

30In response, the respondent argues that the denial of benefits alone is not sufficient to warrant an award. Rather, the insurer is required to and entitled to adjust its file based on the evidence at hand. The respondent further submits that the applicant has not provided evidence that supports that the respondent was unreasonable or dealing in bad faith.

31It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The applicant has not directed me to any evidence demonstrating that the respondent deliberately ignored supporting medical evidence when it denied his entitlement to an orthopaedic assessment, and the adjuster’s log notes are not part of the evidentiary record. Moreover, there is no evidence that the respondent’s actions rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

32For the reasons above, the applicant is not entitled to an award.

ORDER

33For the reasons outlined above, I find that:

i. The applicant is not owed IRB for the period of October 16, 2019 to January 4, 2022.

ii. The applicant is entitled to any amounts incurred for the plan dated January 25, 2022 for an orthopaedic assessment, starting on the 11^th business day after the respondent received the plan, with interest in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to an award.