Citation: Jeffery v. Travelers Insurance Company of Canada, 2023 ONLAT 20-013979/AABS

Licence Appeal Tribunal File Number: 20-013979/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:

Evangeline Jeffery

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

E. Louise Logan

APPEARANCES:

For the Applicant:

Vahe Avagyan, Counsel

For the Respondent:

Erin Morgan, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION

BACKGROUND

1The applicant, Evangeline Jeffery, was involved in an automobile accident on April 30, 2018, and sought benefits from the respondent, Travelers Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").¹

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal"). The parties participated in a case conference where they identified and agreed to the issues in dispute, which proceeded to a written hearing.

ISSUES

3The following issues are in dispute:

1. Is the applicant entitled to an income replacement benefit (IRB) in the weekly amount of $400.00 from August 29, 2018 to date and ongoing?

2. Is the applicant entitled to a medical benefit in the amount of $973.07 for physiotherapy recommended by Allied Physiotherapy and Rehab Inc. in an OCF-18/treatment plan ("OCF-18") submitted February 11, 2019?

3. Is the applicant entitled to a medical benefit in the amount of $157.94 for physiotherapy recommended by Allied Physiotherapy and Rehab Inc. in an OCF-18 submitted October 19, 2018?

4. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664?

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

RESULT

4I find the applicant is not entitled to an IRB in the weekly amount of $400.00, or to medical benefits for physiotherapy treatment in the amounts of $157.94 and $973.07 As there are no benefits payable, there is no basis upon which to consider a section 10 award and the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ANALYSIS

5The applicant was the driver and sole occupant of an automobile when the front driver's side tire came off her vehicle. Police and EMS did not attend the accident, and after the accident the applicant returned to work as an administrative assistant at a design firm, missing one day of work. Four months later, on August 31, 2018, the applicant applied to the respondent for accident benefits. The disability certificate (OCF-3) dated August 29, 2018 lists accident-related soft tissue injuries to her neck and lower back, as well as sprains and strains of the shoulder, knee, and hip, headaches, dizziness, fatigue and sleep disorders.²

Income Replacement Benefits

6Entitlement to an IRB falls under section 5(1)(1) of the Schedule. An IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment.

7The procedural provisions in section 36 of the Schedule take precedence over the entitlement provisions in section 5(1)(1). Section 36 guides the process for claiming IRBs. Relevant to this dispute, section 36(2) states that the applicant must submit an OCF-3 with her application for an IRB. Upon receipt of the application of benefits, the respondent is obligated to reply in accordance with the timeline set out in section 36(4). The consequences for not responding within the timeline are set out in section 36(6).

8Upon review of the submissions and evidence, I find the applicant's entitlement to an IRB falls into two periods. The first is her entitlement from the time she submitted a completed OCF-3 as required by section 36(2), until the time the respondent replied to her claim in keeping with section 36(4). I will refer to this period as the "period of statutory entitlement". I have determined this period to be August 31, 2018 to October 2, 2018. The second period begins on October 3, 2018 and is subject to the entitlement provisions in section 5(1)(1). I will refer to it as the "period subject to section 5 of the Schedule".

The Period of Statutory Entitlement

9The question I must determine in relation to the first period is whether the respondent complied with its obligations under section 36(4). Section 36(4) provides that within 10 business days after receiving an application and completed disability certificate, the respondent shall pay the benefit, give notice of the medical and any other reasons why it will not pay the benefit, or request additional information pursuant to section 33(1) or 33(2) of the Schedule.

10Section 36(6) outlines what happens if an insurer does not comply with section 36(4). Section 36(6) states:

If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection 4(b), on the day the insurer gives the notice.

11The applicant argues the respondent failed to comply with section 36(4) and therefore, in accordance with section 36(6), an IRB is payable from August 29, 2018 ongoing, with interest. The applicant submits the respondent did not comply with section 36(4), misrepresented coverage under the policy, and delayed the IRB assessment with improper section 33 requests and suspensions. The respondent argues it received the OCF-3 on September 25, 2018 and complied with section 36 of the Schedule. It argues that even if there is a procedural argument with respect to its October 2, 2018 letter, which it denies, the applicant is not entitled to an IRB over and above what she would be entitled to simply because of a breach of section 36. The respondent also submits it again denied an IRB on March 21, 2019 based on the medical evidence on the file, pursuant to section 36(4)(b).

12I find the respondent failed to comply with the provisions set out in section 36(4). On August 29, 2018, the applicant submitted an OCF-1 and OCF-2. On August 31, 2018 an OCF-3 was faxed to the respondent, indicating the applicant was a candidate for an IRB and a non-earner benefit (NEB). There is a dispute between the parties about when the respondent received the disability certificate. The applicant argues it was submitted on August 31, 2018, while the respondent argues it did not receive it until September 25, 2018. I find the evidence shows the OCF-3 is dated August 29, 2018 and that it was faxed to the respondent on August 31, 2018. Therefore, August 31, 2018 is the date that triggered the section 36(4) timeline for the respondent to reply.

13I find that the respondent sent a letter to the applicant on September 7, 2018, which was within 10 business days of the trigger date. However, I find the September 7, 2018 letter does not meet the requirements of section 36(4). The letter does not give medical reasons for the denial of IRB and NEB, nor does it request additional information pursuant to section 33(1) or 33(2) of the Schedule. Instead, the respondent denies the IRB on the basis that "you have indicated that you have returned to work and were not off of work for more than 7 days, which is the deductible period. Therefore you do not have any entitlement to benefits." The respondent denies the NEB on the basis that "you were employed at the time of the accident. In addition you were neither a full-time student nor had completed your education one year prior to the accident".³ The letter also does not provide the applicant with information about her right to dispute the denial, as required by section 54.

14I find that the respondent provided compliant notice on October 2, 2018, in keeping with the requirements in section 36(4).⁴ On October 2, 2018, the respondent wrote to the applicant acknowledging receipt of the OCF-3 dated August 29, 2018 and indicated that it did not have medical documentation to support IRB or NEB entitlement. The respondent requested an OCF-2 (Employer's Confirmation Form) and OCF-10 (Election of Income Replacement Benefit, Non-Earner Benefit or Caregiver Benefit) and pre-accident and post-accident paystubs pursuant to section 33. The letter also advised the applicant of her right to dispute the denial and make an application to the Tribunal. Although the October 2, 2018 letter sets out a 10-day period for filing the OCF-10, rather than the 30 days set out in section 35, I find that this error did not impact the applicant's entitlement to an IRB. She made her election on November 16, 2018 in compliance with the 30-day rule in section 35 and this was accepted by the respondent. I find the October 2, 2018 letter constitutes notice pursuant to section 36(4). I also find that the respondent's letter dated March 21, 2019, which the applicant argues is an invalid denial as it did not include notice of the right of appeal, does not upend the initial October 2, 2018 letter, which was compliant and did include notice of the right to appeal.

15As I have found the respondent failed to comply with section 36(4), the applicant's claim for an IRB is subject to section 36(6) for the period of statutory entitlement. Upon plain reading of section 36(6), I find there is no reference to the applicant having to meet the disability test under section 5(1)(1). It simply states that if the insurer fails to comply with section 36(4) it shall pay the specified benefit. In my view, if section 36(6) required the applicant to meet the section 5 disability test for an IRB, it would include reference to that test. As a result, I find that the applicant is statutorily entitled to an IRB for the period August 31, 2018 to October 2, 2018.

16I find, however, that the OCF-2 shows that the applicant took only one day off work due to the accident, returned to work after the accident, and was working at her pre-accident employment during the period of statutory entitlement. The applicant submitted paystubs from her employer from April 20, 2018 to November 2, 2018 which show she earned $1,692.31 bi-weekly.⁵ The IRB during the period of statutory entitlement is subject to the IRB calculation provisions in section 7(3). Section 7(3) provides that the insurer can deduct 70% of gross employment from the amount to be paid for an IRB. Therefore, based on the applicant's earnings for the period of statutory entitlement as evidenced by her pay stubs, the quantum of the IRB to be paid during the period of statutory entitlement is nil.

17I will now turn to the question of the applicant's entitlement to an IRB for the second period.

The period subject to section 5 of the Schedule

18I find that the applicant is not entitled to an IRB for the second period beginning on October 3, 2018, as she has not met her burden to demonstrate she suffered from a substantial inability to perform the essential tasks of her employment, as a result of the accident, during the period in dispute.

19As noted above, entitlement to an IRB falls under section 5(1)(1) of the Schedule. An IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. This inquiry is divided into two steps: 1) what are the essential tasks of the insured's pre-accident employment; and 2) is the insured substantially unable, as a result of the accident, to perform those tasks? The onus to demonstrate entitlement rests with the applicant.

20The applicant was employed as an administrative assistant at a design firm at the time of the accident. The applicant argues that her accident-related physical and mental impairments began to interfere with her ability to perform most aspects of her employment duties by July 2018. She relies on the OCF-3 dated August 29, 2018, as well as vacation absence forms and information from her employer as evidence she meets the section 5 test for an IRB. The applicant also argues that the respondent intentionally delayed the payment of IRBs with inappropriate section 33 requests, and issued a section 44 insurer's examination (IE) notice that did not specify what benefit the applicant was being examined for. The applicant argues that as a result, she was examined solely with respect to the denied treatment and assessment plans, and not with respect to her IRB application.

21The respondent argues the applicant has not submitted medical evidence, nor met her onus to demonstrate that she meets the test under section 5(1)(1). The respondent submits the applicant returned to work post-accident at her pre-accident employment and did not take time off work. The respondent submits there is no obligation for the respondent to arrange IEs, especially if they are not reasonably necessary to assess entitlement to a benefit. The respondent also submits that the applicant has not proven entitlement to the quantum of $400.00 a week. Lastly, the respondent submits the applicant has not produced her 2020 income tax returns, updated pay stubs, or record of employment as ordered in the Case Conference Order of May 12, 2021 and that the lack of this information prejudices the respondent. The respondent asks that the Tribunal draw an adverse inference for this failure to comply with the Order. In her reply submissions, the applicant denies contravening the Order, and submits she produced all her tax returns and the entire employment file.

22I find the applicant has not met her burden to demonstrate entitlement to an IRB. Upon review of the submissions and evidence, I find that the applicant returned to work as an administrative assistant with her pre-accident employer after the accident. She worked there until October 22, 2019 when she was terminated without cause. The employer's letter terminating the applicant's employment does not reference the accident, or that the applicant was unable to perform the essential duties of her employment.⁶ While the OCF-3 indicates that the applicant reported that at the end of the working day she experiences increased pain in her neck, upper back and lower pain with radicular pain to right leg, there is no evidence that she was unable to perform the essential duties of her work. The OCF-1 indicated that the applicant's injuries did not prevent her from working. The OCF-2 indicates the applicant took one day off work.

23I agree with the respondent that it is under no obligation to refer the applicant to a section 44 IE, although I note that the letter of March 21, 2019 letter does refer to scheduling an IE in relation to the IRB claim. The respondent submits that it was going to arrange these IEs but did not do so as the applicant had returned to work and the respondent had not received confirmation the applicant was pursuing her IRB claim. The respondent did, however, refer the applicant to IEs to determine whether she sustained an injury beyond a minor injury. These IEs were submitted into evidence by the applicant. The IE report of Dr. Jay J. McGrory, psychologist, dated August 24, 2019, indicates that the applicant estimated that she missed one day of work as a result of the accident.⁷ She also reported that at work she is able to physically adjust as required, and that her workplace was very supportive and did not require her to do heavy lifting. She stated that she typically works Monday to Friday from 8:30am until 5:00pm. The September 5, 2019 IE Report of Dr. Anna Czok, physiatrist, indicates that following the motor vehicle accident the applicant continued working, taking no time off, and was working at the time of the IE.⁸

24Along with her reply submissions, the applicant submitted vacation absence forms which show she took 16 days off in 2017 and 45 days off between April 30, 2018 and October 22, 2019. Upon review of the forms submitted, I find the applicant's absences are a combination of sick days, other/ personal, vacation days, family leave, and religious holidays. I do not find they are compelling evidence in support of entitlement to IRBs as the documents do not address the applicant's ability or inability to complete her essential tasks of employment.

25In sum, I find the respondent's failure to comply with the provisions in section 36 provide that the applicant is entitled to an IRB for the period of statutory entitlement, namely August 31, 2018 to October 2, 2018. As noted above, as the period of statutory entitlement is subject to the IRB calculation in section 7(3), the quantum of the IRB payable is nil. For the period beginning October 3, 2018, I find the applicant has not met her onus to demonstrate entitlement to an IRB pursuant to section 5(1)(1) of the Schedule.

26As a final note, I find that even if the applicant had established entitlement to an IRB pursuant to section 5(1)(1), the applicant has not provided relevant documents confirming her post-accident income. The respondent submits that the applicant contravened the Tribunal Order dated May 12, 2021 to produce her 2020 income tax return, pay stubs for the period November 2018 to October 22, 2019, and record of employment. In her reply submissions, the applicant denied contravening the Tribunal's Order. I have reviewed all the submissions and evidence and find the applicant has submitted pay stubs for the period April 20, 2018 to November 2, 2018 but has not provided evidence of updated pay stubs, current employment status, or tax returns. The respondent has submitted the applicant's 2018 and 2019 tax returns into evidence. I draw an adverse inference from the applicant's failure to submit this information. The lack of financial information precludes the respondent and the Tribunal from being able to determine quantum for the second period, even if entitlement had been established.

Medical Benefits

27Pursuant to section 15 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.

28The applicant is seeking medical benefits for two OCF-18s for physiotherapy treatment, one of which was partially approved by the respondent. The applicant submits that the respondent should have paid for these treatment plans because it changed its position with respect to extent of her injuries. Initially, the respondent determined she sustained a minor injury as defined in section 3 of the Schedule and was subject to the Minor Injury Guideline (the "MIG"), and the $3,500.00 funding limit on medical and rehabilitation benefits for minor injuries. However, the respondent later determined that the applicant sustained a psychological impairment, which is not included in the minor injury definition, and was therefore no longer subject to the MIG and the $3,500.00 funding limit. The applicant has not, however, submitted any medical evidence in support of the need for the recommended physiotherapy treatment. The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary.⁹

29The respondent cites the IE report of Dr. Czok in support of its position. Dr. Czok found that the applicant likely sustained a mild soft tissue injury in her neck and possibly lower back as a result of the accident. Her physical examination did not demonstrate objective musculoskeletal impairment related to the accident. She opined that from a musculoskeletal point of view, the applicant sustained a minor injury that did not necessitate treatment outside the MIG. I find the IE report of Dr. Czok to be a persuasive perspective on the applicant's physical injuries, given the lack of supporting medical evidence submitted by the applicant.

30Based on the evidence and submissions before me, I find that the applicant has not met her burden of proving on a balance of probabilities that the physiotherapy treatment plans in dispute are reasonable and necessary as a result of the accident.

AWARD

31The Tribunal may grant an award under section 10 of Ontario Regulation 664 where it finds the respondent has unreasonably withheld or delayed the payment of a benefit. The applicant submits she is entitled to a special award in an amount equal to 50% of the IRB amount owing. As the applicant has not demonstrated entitlement to benefits and no benefits are overdue, I find there is no basis upon which to consider an award in this matter.

INTEREST

32As there are no benefits payable, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

CONCLUSION AND ORDER

33For the reasons outlined above I find that the applicant is not entitled to the following:

a. an IRB in the weekly amount of $400.00; b. medical benefits for physiotherapy treatment in the amounts of $157.94 and $937.07; c. a section 10 award; or d. interest pursuant to section 51 of the Schedule.

34This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2OCF-3 dated August 29, 2018, Tab 1 of the Applicant's Submissions.
3. 3September 7, 2018 letter from the respondent to the applicant, Tab 3 of the Applicant's Submissions.
4. 4October 2, 2018 letter from the respondent to the applicant, Tab 10 of the Respondent's Submissions.
5. 5Paystubs for the period April 20, 2018 to November 2, 2018, Tab 6 of the Applicant's Submissions.
6. 6October 22, 2019 employment termination letter, Tab 2 of the Respondent Written Hearing Brief.
7. 7IE Report of Dr. Jay J. McGrory dated September 5, 2019, Tab 10 of the Applicant's Submissions.
8. 8IE Report of Dr. Anna Czok, dated September 5, 2019, Tab 18 of the Respondent's Written Hearing Brief.
9. 9See: 17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.