Licence Appeal Tribunal File Number: 20-011425/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:
Uthaya Kathirgamanathan
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Anita John
APPEARANCES:
For the Applicant: Uthaya Kathirgamanathan, Applicant Andrew P Suboch, Counsel
For the Respondent: Chris Viveiros, Adjuster Matthew GT Glass, Counsel
Court Reporter: Amy Harkness
Heard by Videoconference: November 1-2, 2022
OVERVIEW
1Uthaya Kathirgamanathan, the applicant, was involved in an automobile accident on February 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In the ambulance call report, the applicant states that he was travelling eastbound on the 401 in Belleville, Ontario, at approximately 110 km/h when he lost control of the car, striking the median head on. His vehicle bounced off the median and came to a stop on the shoulder of the highway. The applicant called 911 because he felt pain in his left leg.
3Notably, at the outset of the hearing on November 1 and 2, 2022, the applicant confirmed that the Minor Injury Guideline (“MIG”) would not be an issue in dispute such that he continued to be confined to the MIG.
4On February 27, 2018, the respondent approved a Treatment Confirmation Form (OCF-23), in the amount of $2,200.00, for medical therapy with Fast Aid Rehabilitation Clinic Inc.
5The applicant did not produce the witnesses such as Dr. S. Sundareswaran, and Dr. Gayathiri Gangadharam (chiropractor, from Fast Aid Rehabilitation, who also signed his Disability Certificate (OCF-3) dated February 14, 2018.
6The applicant did not summons any witnesses from either Madras Dosa Hut (“Dosa Hut”), or 8289824 Canada Inc. o/a SJS'S Transportation Service.
ISSUES
7The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (IRB) of $330.00 per week, from February 11, 2018, and ongoing? This issue was clarified at the videoconference hearing.
ii. Is the applicant entitled to $ 2,950.25 for physiotherapy services, proposed by Fast Aid Rehabilitation Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated February 14, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8The applicant is not entitled to IRBs and is not entitled to the physiotherapy services proposed by the plan dated February 14, 2018. As no benefits are due and owing, there is no entitlement to interest.
ANALYSIS
Income Replacement Benefit
9The applicant submits that he is entitled to IRBs as he is substantially unable to work because of the injuries sustained in the accident.
10The respondent argues that the applicant is not entitled to IRBs because the applicant did not comply with its request for documents to complete his IRB application.
11Subsection 36(4) states that within ten business days after the insurer receives the application and completed disability certificate, the insurer, if they are not paying the benefit, shall give the applicant a notice to explain the medical or other reasons why the insurer believes the person is not entitled to the benefit or send a request to the applicant under ss. 33(1) or (2).
12Subsection 33(1) states than an applicant shall within 10 days after he receives a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to the benefit.
13Subsection 33(6) of the Schedule states that the insurer is not liable to pay the benefit for the period in which the applicant fails to comply with the subsection 33(1) request for reasonably required information.
14The evidence suggests that the applicant provided an OCF-1, application for accident benefits form, shortly following the accident on February 14, 2018. An OCF-3 was completed by chiropractor Gayathiri Gangadharan on February 14, 2018, who describes some of the applicant’s injuries from the accident as sprain and strain of lumbar, thoracic, and cervical spine, sprain and strain of wrist, sprain and strain of shoulder joint, headache, sleep, fatigue, concussion, whiplash associated disorder with complaint of neck pain, sprain, and strain of hip.
15The respondent sent a notice of examination by the insurer, dated February 27, 2018, not approving the OCF-18 for physiotherapy, in the amount of $2,950.25, but scheduling an insurer examination to review the recommended treatment and/or assessments.
16The applicant does not dispute that the above request was reasonable and required by the respondent.
17In addition, the respondent sent correspondence, dated February 27, 2018, invoking subsection 33(1) of the Schedule. The respondent requested information that was reasonably required to not only calculate the IRB – the OCF-2 – but also requested information about the applicant’s inability to work due to his injuries and limitations. The applicant was also warned that the consequences of non-compliance found in subsection 33(6) would be relied upon by respondent. Thus, the respondent provided a proper s. 33 request on February 27, 2018, and the respondent can rely on it.
18Then on July 16, 2019, the applicant elected IRB in Part 2 of an OCF-10 election form.
19More than two years after the February 27, 2018, letter, the applicant’s former counsel, sent a letter, dated March 17, 2020, which stated:
Enclosed herewith, please find copies of bank deposits for the last four weeks confirming direct deposit for the last four weeks confirming when he returned to work at his most recent job. He did not return to Dosahut after the accident and that employer refused to complete OCF-2. We are looking to recover IRBs from the date of loss to July 18 accordingly.
Employment confirmation letter by “S. Jena” dated April 18, 2020, at 8289824 Canada Inc. o/a SJS’S Transportation Service (transmitted/received March 17, 2020)
TD Canada Trust Transaction History 12/01/2017 to 02/28/2018:
- 01/08/2018: $484.67 GC 3455-TRANSFER
- 01/15/2018: $461.31 TRF-FR Dosahut
- 01/29/2018: $490.50 TRF-FR Dosahut
- 02/05/2018: $449.63 TRF-FR Dosahut
20The transfers from the Madras Dosa Hut appear to be incomplete, lacking full information on the dates worked. There was no T4 produced to show the applicant’s full income. No record of employment was put forward which leaves me without sufficient evidence from the employer of the dates worked, earnings and reasons for leaving, all of which is relevant to the applicant’s substantial inability to perform the essential tasks of his employment.
21On March 17, 2020, the applicant sent an employment verification letter, by S. Jena, dated April 18, 2020, that he was working as a truck driver at 8289824 Canada Inc. since July 2018.
22The employment letter was dated into the future, April 18, 2020, but retroactively indicated that the applicant commenced work on July 1, 2018.
23On March 27, 2020, the respondent made another request for information which included the complete employment file from Dosa Hut, T4 from Dosa Hut for the 2017 and 2018 taxation years, Record of Employment from Dosa Hut, and Income tax returns for the 2017 and 2018 taxation years. The respondent made another request for information found in the OCF-2: the exact date the applicant started work with the current employer in 2018. As a result, the quantum and duration of the IRB remain at issue.
24On April 22, 2020, the respondent made a further request for information pursuant to s. 33 to verify the applicant’s eligibility for an IRB. Records requested included the applicant’s complete employment file from Dosa Hut, T4 from Dosa Hut for 2017 and 2018, Record of Employment from Dosa Hut; Income Tax Returns for 2017 and 2018; confirmation of the exact date the applicant started work with his current employer in June 2018 and a written explanation as to how he worked in Etobicoke, ON when he resided in Prescott, ON. The deadline to respond was May 6, 2020. The applicant failed to respond. As a result, the quantum and duration of IRB remain at issue.
25On May 7, 2020, the respondent sent another letter, requesting documents to verify the applicant’s eligibility for an IRB. The letter confirmed that the applicant was non-compliant with requests for information that benefits would not be payable until the applicant complied with the s. 33 request.
26Pursuant to s. 33(6) the respondent is not liable to pay for the IRB until the applicant has complied with the s. 33 request. Under subsection 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, the respondent shall pay all amounts that were withheld.
27The allowance for a reasonable explanation by the applicant for non-compliance is echoed in s.34 of the Schedule and states that a person’s failure to comply with the time limits [in this case the ten business days noted in section 33(1)] does not disentitle them to the benefit if the person has a reasonable explanation for the delay].
28The applicant submits that the employer, Madras Dosa Hut, was unresponsive in providing the OCF-2. The applicant submits that it is unfair to delay the applicant’s IRBs because of the failures of a third party.
29I agree with the applicant that if the delay in providing the OCF-2 was due to the employer and despite evidence of best efforts, the OCF-2 was still not forthcoming, that this could be construed as a reasonable explanation. However, there is no evidence that the employer withheld or delayed the OCF-2 or that despite the applicant’s efforts, the OCF-2 could not be provided.
30There is no evidence of the applicant attempting to provide the OCF-2 in 2018, 2019 and 2020. There is no evidence that the applicant had issues obtaining the OCF-2 from his employer following the request for same by the respondent in February 2018. There is no evidence of any issues with the employer filling out the OCF-2. There are no letters or even an acknowledgement to the respondent that the applicant was making efforts to obtain the OCF-2 despite contacting his friend, the owner of Madras Dosa Hut at least 10 times, or despite electronic/written messaging at least another 10 times.
31Therefore, I find there was no reasonable explanation of the delay in providing the OCF-2 in this case.
32In keeping with the Schedule, the respondent was entitled to withhold IRBs (assuming they were payable) as there was no reasonable explanation for the delay in providing the reasonably required documents requested pursuant to s. 33 of the Schedule.
33Under ss. 33(1) of the Schedule, an applicant has a duty to provide “information reasonably required to assist the insurer in determining the applicant’s entitlement to benefit.” The onus was on the applicant to prove his income when applying for an IRB.
Substantive Entitlement to IRBs
34Therefore, I must determine if the applicant was entitled to IRBs following the completion of the application for IRBs. i.e., as of February 14, 2018.
35Pursuant to s.5(1)(i) of the Schedule, IRBs are payable if the applicant sustains an impairment because of the accident and within 104 weeks is substantially unable to perform the essential tasks of his job. The applicant has the burden to show what the essential tasks of his job are and that his accident-related injuries result in a substantial inability to perform those tasks.
36The applicant was employed as a helper at Madras Dosa Hut, a fast -food restaurant, which required him to:
a) Make curry-based food
b) Cut vegetables
c) Stand while working
d) Carry boxes of vegetables weighing up to 50llbs
e) Carry 20L pots of water
37The applicant made submissions as to what the day-to-day task of his job entailed; however, submissions are not evidence. There is no direct or indirect evidence for that matter that allows for an analysis of the essential tasks of his job at Madras Dosa Hut. It may be that it was only a small percentage of the applicant’s activities involved carrying boxes of vegetables or carrying pots of water.
38There is no supporting documented proof that the applicant was forced to give his job at Madras Dosa Hut.
39Further, the applicant must show that his entitlement to IRB begins as of February 18, 2018, following the 7-day deductible from the accident. The only evidence provided to show his inability to work at that time is the OCF-3 of February 14, 2018. The anticipated duration of the disability is stated as 9-12 weeks. There were no clinical notes and records from any treating doctors provided as evidence. An OCF-3 alone is not sufficient to establish entitlement to an IRB. I find it is not enough for an applicant to simply say that he cannot do an essential task to receive an IRB, but rather the applicant must provide objective medical evidence of a substantial inability to perform his essential tasks.
40Therefore, based on the above, the applicant has not shown that at the time of OCF-3 of February 14, 2018, he was substantially unable to perform the essential tasks of his pre-accident job because of accident-related impairments. There is no evidence provided by the applicant as to what his essential job tasks were and how his impairments from the accident prevented him from performing those essential tasks. Without evidence of the tasks that are completed and the details surrounding the same, there cannot be an understanding of the essential tasks and by extension what limitations if any the applicant faced with respect to his job as of February 14, 2018.
41The applicant is seeking entitlement to IRBs following the 104 weeks post accident. Section 6(2)(b) states that the substantive test changes following the 104 weeks after the accident in that applicant is entitled to IRBs if suffering from a complete inability to engage in any employment for which he or he is reasonably suited by education, training, or experience. Again, the applicant has the burden to show that his accident-related impairments affect his ability to engage in any type of employment for which he is suited.
42The only medical evidence provided by the applicant in support of his entitlement to IRBs are the OCF-3 of February 14, 2018, the report of a social worker, Sebastian Joseph, of November 29, 2017, and the Fast Aid Rehabilitation Clinic service providers.
43First, the social work report of Sebastian Joseph does not provide any insight into the applicant’s pre-accident job and current limitations, nor does it provide any opinion that is helpful regarding his inabilities because of his accident-related impairments. I place little weight on the social work report of Sebastian Joseph is based on only the self-reporting of the applicant with no corroborating evidence.
44Second, I do not find the applicant’s fear of driving or preference for reduced driving, to be persuasive in this matter. The applicant admitted in cross-examination at the hearing that in June or July 2018, he was working as a truck driver at 8289824 Canada Inc. Given that he continues to drive, I find that there is no evidence before me to support a conclusion that the applicant’s phobia requires treatment.
45There is also no evidence that the applicant has seen a treating doctor since the accident, let alone reported any psychological, emotional, or physical limitations because of accident-related injuries and impairments. In short, there are no records regarding any visits by the applicant to any medical provider post-accident.
46In his book of authorities, the applicant provides Notices of Assessment for the 2017, 2018, 2019, 2020 and 2021 taxation years. There is no indication of income or activity with Madras Dosa Hut in any of the notices of assessment. The respondent submits that notices of assessment are not income tax returns that provide corroboration that taxes were paid pursuant to ss. 4(5) of the Schedule. Therefore, it is unclear to me whether the applicant paid income taxes on the quantum received.
Is the applicant’s claim for physiotherapy barred by the limitation period prescribed by the Schedule?
47Section 56 of the Schedule requires all applications for a benefit to be commenced within two years after the insurer’s refusal to pay the amount claimed. Section 7 of the Licence Appeal Tribunal Act permits the Tribunal to extend the time limits if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting relief.
48The applicant’s claim for physiotherapy was dated February 14, 2018 and denied on February 27, 2018. The limitation period ended on February 27, 2020. The Tribunal application was filed on September 14, 2020. The respondent denied the treatment plan six months prior to the commencement of the application.
49The applicant made no mention of this issue in his reply submissions at the hearing when given an opportunity to do so. The applicant therefore has not met his burden to prove that there are reasonable grounds for an extension of time in this case.
50I agree with the respondent’s position that applicant’s claim for physiotherapy services is statute-barred by the limitation period prescribed by s. 56 of the Schedule.
Interest
51As no benefits are payable, no interest is payable.
ORDER
52For the reasons above, I find that the applicant is not entitled to an IRB and to the physiotherapy benefits as claimed. No interest is payable.
53The application is dismissed.
Released: May 9, 2023
Anita John
Adjudicator