Citation: Uribe v. Intact Insurance Company, 2023 ONLAT 21-003565/AABS

Licence Appeal Tribunal File Number: 21-003565/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:

Manuel Castro Uribe

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Hueglin Hartwick

APPEARANCES:

For the Applicant:

Manuel Castro Uribe, Applicant (Self-Represented)

For the Respondent:

Tamara DiDomenico, Dispute Resolution Specialist

Marni Miller, Counsel

Danielle Wilkinson, Counsel

Danielle Malone, Counsel

Court Reporter:

Guido Riccioni

HEARD: by Videoconference:

March 6-9, 2023

OVERVIEW

1Manuel Castro Uribe, the applicant, was involved in an automobile accident on February 28, 2017, 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 the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2During the hearing, the respondent removed the applicant from the Minor Injury Guideline. This issue is no longer in dispute.

ISSUES

3The issues in dispute are:

a. Is the applicant entitled to a NEB of $185.00 per week from March 28, 2017, to February 28, 2019?

b. Is the applicant entitled to $1,977.05 for physiotherapy services, recommended by Mackenzie Medical Rehabilitation in a treatment plan (OCF-18) dated July 29, 2020, and submitted August 5, 2020?

c. Is the applicant entitled to $1,384.70 for physiotherapy services, recommended by Mackenzie Medical Rehabilitation in a treatment plan (OCF-18) submitted September 21, 2020?

d. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Marigold Medical Assessments in a treatment plan (OCF-18) submitted September 4, 2019?

e. Is the applicant entitled to $5,239.56 for psychological services, recommended by Marigold Medical Assessments in a treatment plan (OCF-18) submitted October 13, 2019?

f. Is the applicant entitled to $2,144.92 for a psychological assessment, recommended by Princeton Hills Medical Assessments in a treatment plan (OCF-18) submitted September 25, 2020?

g. Is the applicant entitled to $200.00 for a psychological assessment, recommended by Princeton Hills Medical Assessments in a treatment plan (OCF-18) submitted September 25, 2020?

h. Is the applicant entitled to $2,260.00 for a chronic pain assessment, recommended by Princeton Hills Medical Assessments in a treatment plan (OCF-18) submitted September 25, 2020?

i. Is the applicant entitled to $200.00 for a chronic pain assessment, recommended by Princeton Hills Medical Assessments in a treatment plan (OCF-18) submitted September 25, 2020?

j. Is the applicant entitled to $2,200.00 for an occupation therapy assessment, recommended by Princeton Hills Medical Assessments in a treatment plan (OCF-18) submitted November 11, 2020?

k. Is the applicant entitled to $200.00 for an occupation therapy assessment, recommended by Princeton Hills Medical Assessments in a treatment plan (OCF-18) submitted November 11, 2020?

l. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant is not entitled to a NEB as the applicant’s entitlement to the benefit has not been triggered pursuant to s. 36 of the Schedule.

5The applicant is not entitled to payment for the OCF-18s in dispute as they are not reasonable or necessary.

6The applicant is not entitled to an award or interest on any overdue payment of benefits.

PROCEDURAL ISSUES

7The respondent and applicant both submitted a Notice of Motion before the hearing commenced to be heard at the hearing.

8I denied both motions during the hearing and indicated my detailed reasons would be provided in writing.

9The respondent requested this matter be dismissed with prejudice. It submits the applicant provided an unpaginated and difficult to navigate document brief one business day before the start of the hearing. It asserts this late submission, that does not comply with the Case Conference Report and Order, has prejudiced the respondent’s ability to prepare for the hearing. It relies on ABB v. Aviva Insurance Canada, 2021 CanLII 60469 (ON LAT) (Reconsideration Decision), as precedent for the Tribunal dismissing a hearing due to an abuse of process. In reply, the applicant asserts he had difficulty obtaining documents from the firm of his former counsel. He submits he was not familiar with uploading large documents by computer and this took additional time to complete.

10I denied the respondent’s motion and I provided the following remedies to address the prejudice created by the applicant’s late submission of his document brief. First, I adjourned the hearing for one and a half days to provide the respondent with additional time to review the brief. Second, I indicated I will accept submissions regarding the weight I should assign to this evidence since it did not comply with the orders of this Tribunal.

11The applicant brought a motion to add additional issues in dispute. He submits it would be an efficient use of time and resources to add six issues to this hearing rather than submit an additional application. The respondent does not consent to this request and asserts it is unclear which issues the applicant seeks to add. In addition, the respondent asserts the applicant was told at the case conference that a second application to the Tribunal was needed to address these issues. The applicant agreed with the respondent’s submissions but submits he was ignorant of the Tribunal process and did not submit a subsequent application.

12I denied the applicant’s motion. The parties agree that the applicant was instructed to file a new application with the Tribunal to add additional issues in dispute, at the Case Conference on January 20, 2022. The applicant, who had legal representation until July 2022, had ample opportunity to submit a new application. In addition, the applicant received an adjournment of this proceeding in October 2022. This provided five additional months for the applicant to file a second application. Instead, the applicant submitted a motion, days before the hearing. I decline to force the respondent to defend against newly added issues without the opportunity to prepare its case ahead of the start of the hearing. As such, the applicant’s motion is denied.

13The applicant also brought a motion that was determined to be moot. The applicant requested a copy of a statement he gave to an insurer’s adjuster on June 19, 2017. I learned the document was in both of the parties’ document briefs.

ANALYSIS

Applicant worked as an accident benefits consultant

14The applicant is not an unsophisticated self-represented person. He ran his own business as an accident benefits consultant for at least ten years, and he affirmed his familiarity with the Statutory Accident Benefits Schedule. The applicant testified that he has not worked as a paralegal for eight years.

The applicant’s entitlement to a NEB has not started pursuant to s. 36 of the Schedule

15Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 which, generally, requires a comparison of the applicant’s pre- and post-accident activities.

16I find the applicant’s entitlement to a NEB has not been triggered pursuant to s. 36 of the Schedule. The applicant submitted a Disability Certificate Form/OCF-3 to the respondent on October 9, 2019, over 130 weeks after the accident. Section 36(3) of the Schedule states an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted. The submission of an OCF-3 is what initiates an applicant’s entitlement to a NEB. As stated above, a NEB is available within 104 weeks after an accident. In this case, I find the NEB is unavailable to the applicant as he did not comply with s. 36 within the timeframe outlined in s. 12.

17I find the respondent complied with s. 36(4) of the Schedule. The applicant asserts the respondent denied the NEB on November 12, 2020, almost a year after the OCF-3 was submitted, nor did the respondent order a s.44 examination. However, the respondent first provided a written denial of the NEB in correspondence to the applicant dated October 9, 2019. In my opinion, the denial of this request for benefits was complicated by the submission of two Application for Accident Benefits Form/OCF-1 documents on June 13, 2017 and July 10, 2019. In the first application, the applicant indicated he was self-employed, and he requested an income replacement benefit. The respondent informed the applicant the OCF-1 was not complete regarding accident details, health information, income replacement determination and other insurance. The applicant did not resubmit a completed OCF-1 until July 10, 2019, at which time he indicated he was an unemployed person who sought a NEB.

The applicant’s failure to comply with a time limit is not “reasonable” pursuant to s. 34 of the Schedule

18Pursuant to s. 34 of the Schedule, an applicant may be permitted to proceed with their application for a benefit if they provide a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada (2003 ONFSCDRS 92. The guiding principles are:

i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed;

ii. The onus is on the insured person to establish a “reasonable explanation”;

iii. Ignorance of the law alone is not a “reasonable explanation”;

iv. The test for a “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard;

v. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and

vi. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

19Applying Horvath, I find the applicant’s evidence does not satisfy the requirements set out above. The applicant submits he filled out the first OCF-1 incorrectly because he did so without the help of a paralegal and he wrongly indicated that he was employed because he hoped to get back to work. I assign little weight to this assertion for two reasons. First, the applicant testified he worked as an accident benefits consultant for several years. He is well versed in the Schedule and while he testified that he does not see himself as a sophisticated applicant he is certainly knowledgeable. Second, I find it incomprehensible the applicant indicated his work status on the OCF-1, including title and company name, yet intended that to mean a future state of self-employment. The applicant reported himself as both self-employed and unemployed to various medical professionals. I received submissions from the applicant that he last worked as an accident benefits consultant eight years ago and he also stated he last worked in 2002 or 2004. I find there were conflicts in the applicant’s account of his employment history.

20I am unable to determine if the applicant’s explanation, for submitting the completed OCF-1 and OCF-3 more than two years after the accident, is reasonable, as he has not been provided an explanation. The applicant has not offered specific submissions to explain why he did not send the respondent the completed documents sooner. Accordingly, the applicant has not provided a reasonable explanation for his failure to comply with the time limits provided in the Schedule, pursuant to s. 34.

21For the purposes of this analysis, it is not necessary for me to consider whether the applicant is entitled to a NEB.

The treatment plans for psychological services are not reasonable or necessary

22To receive payment for a treatment plan under 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. 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 same are reasonable. There must be a reasonable basis for a request for an assessment.

23I find the applicant has not met his burden to prove the treatment plans are reasonable and necessary. The applicant seeks payment for an OCF-18 in the amount of $2,200 for a psychological assessment and Dr. Keely’s suggestion that he receive $5,239.56 of psychological services. In addition, he seeks payment for an OCF-18 in the amount of $2,344.92 which includes $200.00 for a pre-screen and a psychological assessment, based on a pre-screen interview suggested by Dr. Kershner. The applicant did not make specific submissions regarding the treatment plans in dispute, nor did he call witnesses to offer testimony. In response to the claim, the respondent scheduled a s. 44 IE with Dr. Saunders, psychologist, who determined the applicant experiences mild to moderate elevation of psychological symptoms in response to primary stressors of pain, functional limitations and caring for his elderly mother, but that the OCF-18s were not reasonable and necessary.

24I agree with the respondent. I prefer the report of Dr. Saunders as he had access to the pre- and post-accident clinical notes and records of Dr. Jeffries, the applicant’s family physician. It is unknown if Dr. Keeling reviewed the clinical notes and records of Dr. Jeffries as his report did not contain a list of reviewed documents. I find the applicant has not established, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident.

The treatment plans for chronic pain are not reasonable or necessary

25I find the applicant has fallen short of meeting his burden to prove these treatment plans are reasonable and necessary. The applicant seeks payment for an OCF-18 in the amount of $2,460.00 that includes $200.00 for a pre-screen and a chronic pain assessment, based on a pre-screen interview suggested by Dr. Robertus. The applicant did not make specific submissions regarding the treatment plans in dispute, nor did he call witnesses to offer testimony. In response to the claim, the respondent scheduled a s. 44 IE with Dr. Silver, general practitioner, who determined the applicant’s pain complaints are due to non-accident related conditions and the OCF-18s were not reasonable and necessary.

26I agree with the respondent. I prefer the report of Dr. Silver as he had access to the pre- and post-accident clinical notes and records of Dr. Jeffries, the applicant’s family physician. Dr. Robertus received Dr. Jeffries’ records starting in 2019 even though she had been the applicant’s primary care physician since 2012. The only reference to the subject accident in Dr. Jeffries’ notes took place on March 9, 2017, shortly after the accident took place. The applicant testified that he did not make reference to the accident to his doctor, or the social worker who he met with on several occasions. In my view, the applicant understated his pre-accident pain to Dr. Robertus. As far back as 2012, the applicant was referred to a pain clinic for a chronic pain assessment and management of his back pain. This was not reflected in Dr. Robertus’ report. In my view, the applicant has not established, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary as a result of the accident.

The treatment plans for physiotherapy and occupational therapy services are not reasonable or necessary

27I find the applicant has not satisfied his burden to prove these treatment plans are reasonable and necessary. The applicant seeks payment for an OCF-18 in the amount of $1,977.05 and $1,384.70 for physiotherapy services suggested by Dr. Yuri Charko. He also seeks payment for an OCF-18 in the amount of $2,400.00 which includes $200.00 for a pre-screen and an occupational therapy assessment, based on a pre-screen interview suggested by occupational therapist Arvind Kumar Gupta. The applicant did not make specific submissions regarding the treatment plans in dispute, nor did he call witnesses to offer testimony. In response to the claim, the respondent scheduled a s. 44 IE with Dr. Silver, general practitioner, who determined the applicant’s accident-related musculoskeletal injuries have resolved and the OCF-18s were not reasonable and necessary.

28I agree with the respondent. The applicant testified these treatment plans were merited because he needed the help, but he offered no evidence to substantiate his claim. In addition, the applicant has been on ODSP since 2004 but the Tribunal did not receive records that explain his disability.

Interest

29The applicant did not make submissions regarding interest. Thus, I decline to order it.

Award

30The applicant did not make submissions regarding an award. Therefore, I decline to order it.

ORDER

31The applicant is not entitled to payment of a NEB as the applicant’s entitlement to the benefit has not been triggered pursuant to s. 36 of the Schedule.

32The applicant is not entitled to payment for the OCF-18s in dispute as they are not reasonable or necessary.

33The applicant is not entitled to an award or interest.