Citation: Antony v. Security National Insurance Company, 2023 ONLAT 20-003051/AABS

Licence Appeal Tribunal File Number: 20-003051/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:

Shiyamini Antony Applicant

and

Security National Insurance Company Respondent

DECISION

ADJUDICATOR: Anita John

APPEARANCES:

For the Applicant: Shiyamini Antony, Applicant David S. Wilson, Counsel Heidi Buchanan, Office Manager/Legal Assistant

For the Respondent: Roshanne Atherley, Counsel Crystal Law, Counsel

Court Reporter: Alyssa Scott

HEARD: by Videoconference: September 6, 7, 8, 9, 12, November 30, 2022

OVERVIEW

1Shiyamini Antony, the applicant, was involved in an automobile accident on June 16, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was the seat-belted driver of her 2009 Toyota Corolla with her husband and son, who were on their way to visit a friend. The subject accident occurred near Boivard Drive and Pinecone Way in Brampton, Ontario, when a vehicle hit the driver’s side of her car as she was making a left turn.

3The applicant was denied certain benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (IRB) of $400.00 per week, from February 28, 2022, and ongoing?

ii. Should maternity leave employment insurance benefits (“EI benefits”) be deducted from the IRB the applicant received from June 23, 2018, to May 3, 2019?

iii. Is the respondent liable to pay an award under s. 10 of O. 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

5The applicant does not meet the "complete inability" test and is therefore not entitled to post-104 weeks IRBs from February 28, 2022, and ongoing.

6Maternity leave EI benefits are deductible pursuant to the Schedule.

7The applicant is not entitled to a special award as the respondent has not unreasonably withheld or delayed payments.

8The applicant is not entitled to interest.

ANALYSIS

1. Is the applicant entitled to an income replacement benefit of $400 per week from February 28, 2022, to date and ongoing?

9Based on the OCF-1, OCF-2 and OCF-3 received, the applicant received an IRB, with EI benefits being deducted from the quantum of entitlement for the duration of her maternity leave, from on or about May 4, 2018, to April 27, 2019.

10The pre-104 weeks IRB s. 44 assessments took place on August 3, 2021, and August 9, 2021. The psychology report dated August 23, 2021, from these assessments determined that the applicant suffered a substantial inability to perform the essential tasks of her employment.

11On September 1, 2021, the respondent requested additional information pursuant to s. 33 of the Schedule. The respondent advised that further assessments would be arranged to assist it with a determination of the applicant’s ongoing entitlement.

12On September 9, 2021, the respondent retroactively approved the applicant’s IRB from August 18, 2019, to September 12, 2021. It advised the applicant that she would receive a lump sum deposit of $43,200, plus $5,918.92 in interest. The applicant was further advised that she would continue to receive the IRB while she was entitled to it.

13The IRB was payable until November 8, 2021, after which the applicant failed to attend certain s.44 assessments. As a result of miscommunication, accident benefits claim adjuster, Ms. Patel testified that IRB was reinstated pending rescheduling of the post-104 IRB s.44 assessments, and the applicant received backpay to the November 8, 2021, stoppage date with interest.

14Finally, following the completion of s. 44 assessments with respect to post-104 weeks IRBs, the applicant was advised on February 10, 2022, that she did not meet the complete inability test and thus the benefit was be stopped effective February 28, 2022.

Post-104 weeks IRB

15The test for entitlement to post-104 weeks IRB is set out in section 6(2)(b) of the Schedule, which states: “The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is referred to as the “complete inability” test.

16The “complete inability” test for a post-104 weeks IRB is a higher bar than the “substantial inability test” for a pre-104 weeks IRB. Since the post-104 weeks IRB test is more stringent than the pre-104 weeks IRB test, it logically follows if the applicant was not entitled to a pre-104 weeks IRB, she cannot be entitled to a post-104 weeks IRB unless there is a significant deterioration in her condition. The onus is on the applicant to prove she is entitled to a post-104 weeks IRB.

Education and Employment Background

17The applicant reports she completed grade 9 in Sri Lanka. Following immigration to Canada, she completed grades 10-12, and then obtained a certificate in Business Administration and Finance at Sheridan College in 2010.

18Throughout 2008 to 2016, she worked at McDonald's on a part-time and full-time basis, initially as a crew member and then as a shift manager. The applicant testified that she earned a little above minimum wage working at McDonald's, and that the roles involved both sitting and standing. She testified that she communicated with her coworkers and customers in English.

19In 2009 and 2016, the applicant worked at Access D Solutions as an office administrator. She testified that this company was an employment agency. Her role required the use of computer, math, and accounting skills and she would schedule contractors to work at different locations. It was a position that required sitting.

20In 2010 and 2011, she worked at ASR Cargo Systems Inc. in accounts payable, which involved cargo clearance, data entry, and phone calls. She was mostly at her desk for this job.

21In 2011, she also worked at Maple Staffing, an employment agency that would send her to various places to work. She testified that this position involved packing, which was done while standing and sitting.

22She worked for Robert Half Canada Inc. in 2012, an employment agency through which she was sent to various accounting jobs. She testified that these jobs involved data entry, phone calls, printing invoices and placing them in boxes. She was not required to move boxes.

23From 2012 to 2014, the applicant also worked for RTF Global Inc. as an account’s payable assistant. Her role involved data entry and taking phone calls, though she was not required to move any inventory. She testified that her salary was low at the beginning during the probation period, and thinks it increased following that period. She was laid off from this position in 2014, after which she received EI benefits. Her son was born in 2016, following which she went on maternity leave in 2017 and collected EI maternity benefits.

24Upon returning from maternity leave, the applicant started working as an accounting/administrative assistant at 9063323 Canada Inc., otherwise known as R&T Logistics, in November 2017. She worked in this position until she went on maternity leave just prior to the accident. R&T Logistics is a freight shipping company that owned trucks and hired drivers. The applicant's role involved accounting, data entry, phone calls, and occasional filing. She testified that she sat at her computer to work most of the time, except for the occasional instance when she had to move boxes and file.

25The applicant testified that R&T Logistics was owned by her brother-in-law and operated from her home address. She further testified that there was an office at the house, so she was able to work from home and did not need to commute or drive to the office. She would get a one-hour lunch break when working for R&T Logistics, during which she would assist with childcare.

26The OCF-2 dated November 20, 2018, indicates that she worked at R&T Logistics for approximately 6 months from November 20, 2017, to May 4, 2018. The job description reads: Invoices, Data Entry, AP/AR. It lists the applicant's gross weekly income in the 4 weeks as between $760.00 per week and $836.00 per week. The gross income in the 52 weeks before the accident was at $20,672.00.

27At the time of the accident on June 16, 2018, the applicant had been on maternity leave since May 4, 2018.

Functional Capacity Evaluation: Atila Balaban vs. Sheri Corriero

28The applicant asserts that her current functional capacities are not consistent with meeting the essential physical demands required by her pre-accident work as an accounting assistant. In support of her position, the applicant relies on a s. 25 assessor report, conducted by exercise physiologist, Mr. Atila Balaban, on June 2, 2022.

29Mr. Balaban found that the applicant’s current functional capacities were not consistent with meeting the most essential physical demands required by her pre-accident work as an accounting assistant and required by sedentary work. He also finds that the applicant’s functional capacities are not consistent with meeting the physical demands of most of her housekeeping tasks.

30The statute-based post 104 weeks IRB test does not require an account of the applicant’s pre-accident employment functions, nor does it seek to determine if the “essential physical demands” can be met. The post-104 test is a more rigorous test. More information is required for the applicant to meet her evidentiary burden.

31However, it should be noted that the applicant’s sitting position lasted 60 minutes until the end of the intake interview with Mr. Balaban. According to Mr. Balaban, the applicant’s longest continuous sitting duration was 60 minutes.

32In support of its position, the respondent relies on a s. 44 Functional Capacity Evaluation that was conducted by registered physiotherapist, Sherri Corriero, on January 5, 2022.

33In her report, Ms. Corriero noted the functional abilities demonstrated by the applicant at the assessment. They include:

a. Light strength from lifting from floor to waist (20 pounds on an occasional basis, 15 pounds on a frequent basis) It was deduced that she may be able to lift slightly more than this as she stated she could lift her three-year old, with an average weight of 30 lbs.

b. Sedentary strength for lifting from waist to shoulder (10 pounds on an occasional basis, 10 pounds on a frequent basis)

c. Sedentary strength for lifting over shoulder (10 pounds on an occasional basis, 5 pounds on a frequent basis)

d. Sedentary strength for carrying (15 pounds on an occasional basis, 15 pounds on a frequent basis)

e. Light strength for pushing (20.3 pounds) and pulling (18.2 pounds)

f. She scored “frequent” as a FCE performance indicator for the following activities: walking, climbing stairs, kneeling, crouching/squatting, forward reaching, overhead reaching, handling, fingering, and standing.

g. Occasional ability for stooping/bending and sitting

h. Grip strength and right pinch strength were low compared to population norms

34With respect to the weighted tasks, Ms. Corriero found that the applicant demonstrated the ability to tolerate work activities at the “sedentary” work level characterized by exerting up to 10 lbs of force occasionally as well as some ability to work at the light strength level for lifting from the floor, pushing, and pulling. Therefore, I find the combination of her not being totally disabled along with her office work experience she acquired working at various workplaces supports my finding that she does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

35Having reviewed the evidence of both sides, I accept the opinion contained in Ms. Corriero’s report regarding the applicant’s functional abilities from a physical perspective. I find that Mr. Balaban fails to frame his conclusion in terms of the appropriate disability test. Mr. Balaban does not address whether the applicant is suffering from a “complete inability” to engage in any employment for which she is reasonably suited by education, training, or experience.

Vocational Evaluation: David Antflick vs. Ruth Billet

36The applicant submits that she is unable to accomplish her essential employment duties and has no transferable skills that she could use in alternative, suitable “limited” or “sedentary work.” She relies on a s. 25 vocational evaluation, conducted by vocational rehabilitation professional, David Antflick, dated March 30, 2021.

37In his report, Mr. Antflick reviews the National Occupational Classification for a comparison of the physical demands of the applicant’s pre-accident employer. It should be noted, that although he does not administer any tests, he still concludes that since the accident, because of her impairments, the applicant has been unable to accomplish her essential employment duties and has no transferable skills that she could use in alternate suitable “limited” or “sedentary work.”

38First, I give little weight to Mr. Antflick’s report because he did not provide an opinion as to the range of occupations that the applicant was suited for by reason of education, training, or experience. Second, Mr. Antflick only considers positions such as accounting clerk or restaurant foods services manager, positions that the applicant had before the accident. Third, Mr. Antflick does not administer any tests to justify his assertion.

39The respondent asserts that there are occupations that the applicant can pursue based on her education, training, and work experience. The respondent relies on a s. 44 vocational evaluation conducted by Ruth Billet on January 12, 2022.

40In her Transferable Skills Analysis Report dated February 2, 2022, Ms. Billet offered several alternative suitable occupations based on the applicant’s education, training, and work experience: customer service representative, front desk clerk, general office clerk. I note that the applicant’s prior work experience has been in office clerical work.

41In her Labour Market Survey, dated February 2, 2022, Ms. Billet submitted that labour demand and labour supply are expected to be broadly in line with the occupations over the 2017-2026 period at the national level. Ms. Billet noted that the applicant was employed with R & T Logistics. I note that the applicant worked as an accounting assistant in R & T Logistics where flexible and remote work arrangements was possible.

42At the hearing, the applicant stated that she did not feel capable of returning to work within any of the identified occupations because they would require her to sit a lot and that would cause a lot of pain. I accept that the applicant experiences pain, however, I am not persuaded on the totality of the evidence before me that she does not have a complete inability as articulated in ss. 6(2)(b) of the Schedule. On balance, I am satisfied that the sedentary nature of the occupations identified in Ms. Billet’s report are suitable for the applicant based on her education, training, and experience and that they reflect her current functional abilities.

43Mr. Antflick’s findings are in sharp contrast with Ms. Billet’s. In fact, Mr. Antflick’s report does not consider any suitable employment whereas Ms. Billet finds that the applicant may engage in occupations where modifications are permitted. I find that Mr. Antflick’s report does not squarely answer whether the applicant has suffered a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience. I find his review of the demands of the applicant’s pre-accident employability is a misapplication of the post-104 weeks IRB test. I give more weight to Ms. Billet’s reports as she applied the complete inability test correctly.

Psychological Evaluation: Dr. Kanagaratnam vs. Dr. Amena Syed

44The applicant asserts that there are psychological factors that render her unable to work in any job. She relies on a s. 25 psychological assessment, conducted by Dr. Kanagaratnam, dated October 30, 2020. However, I find that the sources of the applicant’s psychological stress are not accident related. Even the applicant herself notes in p. 6 of the report, that she is “not sure if psychological treatment would be beneficial.”

45First, there are numerous references that are made in the October 30, 2020, report, where the applicant’s anxiety is based on her perception of not being able to take care of her children. For example, “she cried when talking about her guilt surrounding not being able to take care and be there for her kids” (p. 8). “When queried about mood changes after the accident, Ms. Antony stated that she feels guilty because she is not able to play with her children as she used to” (p. 10). “When queried about suicidal ideation, she stated that she feels as if there is no point in living her life because she cannot be there 100% for kids” (p. 11). “Ms. Antony reported having worries most of the time about her inability to play with her children,” (p. 11). This was re-affirmed by the applicant who testified at the hearing that she shouts at her kids due to her irritability.

46Second, I find that the applicant’s anxiety stems from the day-to-day stressors and not the motor vehicle accident. This proposition is cited in two reports. In a treatment progress report, dated October 1, 2021, Dr. Kanagaratnam noted “that although the applicant reports some overall progress, her various day-to-day stressors, including feelings of being overwhelmed with caregiving and household chores with no support, and resulting negative thoughts, are instrumental in maintaining her psychopathology.” This opinion is affirmed again in p. 3 of Dr. Kanagaratnam’s report, dated May 21, 2022.

47Third, in an addendum report, dated June 23, 2022, Dr. Syed identified the COVID-19 global pandemic as a concurrent stressor of the applicant and, as a result, the etiology of her current condition cannot be delineated, simply due to the accident.

48However, in a session with Dr. Kanagaratnam on March 17, 2021, the applicant stated, “I keep thinking about when I would be able to go back to some kind of work.” This indicates to me that she is willing to try some jobs if her pain can be managed.

49The respondent relies on a s. 44 insurer’s examination assessment, conducted by Dr. Syed, on January 24, 2022.

50In a report, dated February 2, 2022, Dr. Syed opined that the applicant is suffering from an adjustment disorder with mixed anxiety and depressed mood. However, despite this, Dr. Syed found that the applicant did not endorse psychological reactivity at a level of severity that causes excessive distress or that substantially impairs her daily functioning.

51In cognitive section of Dr. Syed’s report, the applicant denied having any problems with money management in terms of paying bills and paying them on time, managing her own medication and keeping track of her own appointments. This shows to me an ability to plan and organize her life.

52In the post-accident psychological assessment of Dr. Syed’s report, the applicant claimed having “many” weekly treatment sessions over the phone with her treating provider. The applicant articulated that she is just learning how to “sleep better, relax and manage stress”, and she finds the sessions “somewhat” helpful to her. I find that there is no deterioration in her psychological health post-104 weeks.

53As such, Dr. Syed found that that the applicant does not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience, including the options listed in the concurrent vocational report.

Physiatrist Evaluation: Dr. Kekosz vs. Dr. Gwardjan

54The applicant asserts that “she is still not capable of resuming consistent part-time or full-time work even in a sedentary capacity”. The applicant relies on her s. 25 assessor physiatrist’s report, Dr. Kekosz, dated May 15, 2022.

55In her report dated May 15, 2022, Dr. Kekosz states: “During my assessment of Ms. Antony, she stated that she enjoyed her previous work as an Accounting Assistant and would wish to return to this type of work, if possible, in the future. I, therefore, do not believe that the proposed job positions would be suitable for her, based on her previous job experience, skills, and work preference.”

56Dr. Kekosz places a heavy emphasis on the applicant’s pre-accident job in highlighting that the applicant reports enjoying her previous work as an accounting assistant and would wish to return to this type of work if it all possible in the future. I find her analysis problematic as Dr. Kekosz does not provide any opinion on whether the applicant meets the “complete inability test.”

57The respondent relies on M.R. v. State Farm Mutual Automobile Insurance Company¹ where Adjudicator Paluch attributed little weight to one of the applicant’s expert reports on the basis that it did not address the “complete inability” test but rather opines only on the “substantial inability” test. I agree with Adjudicator Paluch on this point.

58It should be noted that in Dr. Kekosz’s report, the applicant did not feel that there were any major cognitive changes. Although the applicant found that she was thinking more slowly, nevertheless, she still felt that she would be able to return to her previous work from a cognitive point of view. Again, this indicates to me that the applicant is willing to return to work if her pain can be managed.

59The respondent relies on a s. 44 physiatry assessment, conducted by physiatrist, Dr. Gwardjan, on January 19, 2022.

60On physical examination, Dr. Gwardjan found that there was no ongoing evidence of physical impairment identified that would prevent the applicant from doing tasks for the positions identified by Ms. Billet. In fact, Dr. Gwardjan opined that, from a physical perspective, the applicant’s ongoing subjective complaints of pain failed to demonstrate any major consistently reproducible and collaborative residual objective signs of motor vehicle accident-related musculoskeletal physical impairments which would result in a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

61It should be noted that the applicant’s own physiatrist, Dr. Kekosz, agrees with the physical findings in Dr. Gwardjan’s s. 44 assessment with a caveat. In a report, dated May 14, 2022, Dr. Kekosz specifically notes “I do believe that Dr. Gwardjan is basing his final opinion primarily on his physical findings which do show evidence of soft tissue injury but no significant impairment. However, he has not given thought to the possibility that she is suffering with a Somatic Symptom Disorder with Prevalent Pain that would inhabit her ability to perform any consistent employment. In general, an office physical examination cannot predict one’s ability to return to their previous work.”

62The respondent submits that Dr. Kekosz is a physiatrist in the field of physical medicine and rehabilitation, not a psychologist or psychiatrist. I find that Dr. Kekosz is not qualified to opine on psychological impairments such as Somatic Symptom Disorder. This is confirmed by Dr. Gwardjan’s addendum report, dated June 23, 2022, whose opinion remains unchanged after reviewing Dr. Kekosz’s report, dated May 14, 2022.

63Again, I acknowledge the applicant’s testimony with respect to the pain she experiences after continuous sitting or standing for prolonged periods of time, however, the applicant’s self-reports of pain are not sufficient to persuade me on a balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

64In terms of pain management, in Dr. Syed’s report, the applicant relayed that her doctors have advised her to continue to take her medication and physiotherapy. The applicant affirmed that her medication, taking rest and putting on a heat pad sometimes helps to reduce her pain for a short period of time. She reasoned that her life would go back to normal in the absence of pain.

65Based on Dr. Gwardjan’s examination of the applicant, he found that the applicant’s physical impairments do not satisfy the complete inability test as outlined in the post-104-week IRB test. As a result, he found that the job options listed in the concurrent vocation report are appropriate for the applicant.

66Overall, I am persuaded by the evidence of Ms. Correiro, Ms. Billet, Dr. Syed, and Dr. Gwardjan. Their respective assessments lead me to conclude that the applicant has failed to prove her case on a balance of probabilities.

67The applicant does not meet the "complete inability" test and is therefore not entitled to post-104 weeks IRBs from February 28, 2022, and ongoing.

2. Are maternity leave EI benefits deductible from the income replacement benefits paid from June 23, 2018, to May 3, 2019?

68After the accident, the applicant was transported to Brampton Civic Hospital, where she was examined, and no objective injuries were found. She was discharged with a diagnosis of soft tissue injury. At the time of the accident, the applicant was on maternity leave, collecting EI benefits. The applicant testified at the hearing, she worked at RT Logistics until the day before the birth of her second child. As a result, the respondent paid the applicant IRB less EI benefits, as post-accident income until the end of her maternity leave on April 27, 2019. Following the applicant's maternity leave, she was paid the full $400/week by the respondent until the date of stoppage on August 17, 2019.

69The applicant contends that the respondent incorrectly deducted her maternity leave EI benefits from her IRB entitlement as post-accident income. The respondent submits that it is entitled to do pursuant to the Schedule and well settled caselaw.

70Subsection 7(3) of the Schedule states that an insurer can deduct 70% of gross employment income from the amount to be paid for an IRB. Subsection 4(1) of the Schedule defines gross employment income as: “salary, wages, and other remuneration from employment, including … and any benefits received under the Employment Insurance Act (Canada), but excludes any retiring allowance within the meaning of the Income Tax Act (Canada) and severance pay that may be received.” Maternity leave benefits are payments under the Employment Insurance Act. Maternity EI benefits also fall within this definition.

71Further, in S.W. v. Aviva Insurance Company of Canada², it was found that maternity leave EI benefits are considered "gross employment income" since they only become payable due to being employed. They are therefore deductible pursuant to the Schedule.

72The Tribunal in Mary Manuel v. Certas Direct Insurance Company,³ also concluded that EI maternity leave benefits are deductible for IRB entitlement. In that case, the applicant went on maternity leave shortly after a motor vehicle accident. Before beginning her leave she had applied to Certas for an IRB. Certas conceded the applicant was impaired for the purposes of qualifying for an IRB, but submitted it was entitled to deduct the EI maternity benefits from the applicant's IRB payments. The Tribunal agreed, relying primarily on S.W. v. Aviva Insurance Company of Canada as it was persuaded that EI maternity benefits are deductible from IRB entitlement payments.

73Therefore, I find that the applicant’s EI maternity leave benefits are gross employment income, deductible from any IRB payment she is entitled to.

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

74The applicant sought an award under s. 10 of O.Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

75The applicant alleges in her supplementary submissions that there were two periods of delay that should attract a special award: 1) from August 17, 2019, to September 9, 2021, with the most significant portion being from May 17, 2021, onward; and 2) from February 28, 2022, onward.

Delay from August 17, 2019, to September 9, 2021

76The applicant was paid an IRB less a deduction of maternity leave EI benefits as post-accident income until the end of her maternity leave on April 27, 2019. Following the applicant's maternity leave, she was paid the full $400/week until the date of stoppage of August 17, 2019.

77On May 8, 2019, in response to a revised OCF-3 that was received, Ms. Patel set up pre-104 weeks IRB s. 44 insurer examinations to determine the applicant's entitlement, as the applicant was still within 104 weeks following the accident.

78On August 7, 2019, the applicant was advised, by way of letter, that because of the s. 44 IEs dated July 31, 2019, it was determined that she did not suffer a substantial inability, thereby failing to meet the test for pre-104 weeks IRB entitlement. As such, she was advised that her benefits would be stopped effective August 17, 2019.

79On July 30, 2020, a case conference was held in this matter, presided by Vice-Chair Theresa McGee. The case conference report and order dated August 4, 2020, required all disclosure to be produced by April 1, 2021.

80On January 19, 2021, March 30, 2021, and April 1, 2021, counsel for the applicant provided medical records pertaining to the applicant's post-accident condition. In response, the respondent immediately requisitioned addendum reports following the productions received on April 1, 2021.

81The pre-104 weeks IRB addenda reports, dated April 26, 2021, opined that because of the significant time that had passed between the updated productions and the initial 2019 reports, in-person assessments were necessary to determine the applicant's medical status and consequently her entitlement to IRB.

82On May 17, 2021, the respondent filed a notice of motion requesting an adjournment of the hearing previously scheduled for July 12 to July 16, 2021, to accommodate those in-person assessments.

83On June 1, 2021, Vice Chair Ian Maedel ordered that the hearing be adjourned to allow for further in-person physiatry and psychology assessments to occur. He was persuaded that the respondent required additional assessments due to the new productions received on April 1, 2021, and because of the time that had elapsed since the previous assessments.

84Following these s.44 assessments, the applicant was found to meet the substantial inability test and was advised of same on September 1, 2021. The applicant was advised on September 9, 2021, that as a result, a lump sum of $43,200.00 plus $5,918.92 of interest for the period from August 18, 2019, to September 12, 2021, would be deposited into her account.

85In Luluquisin v Aviva Insurance Company of Canada,⁴ the adjudicator found that the respondent continued to adjust the applicant’s claim, as it is required to do, as updated medical and other information became available and in doing so has not unreasonably withheld or delayed payments.

86I find that there was no withholding of the benefit and payment was made with interest retroactive to the date of stoppage of August 18, 2019. I find that the respondent continued to adjust the applicant's claim as updated medical and other information became available, as there were significant post-accident records received by the respondent following the case conference in this matter. As per Luluquisin v Aviva Insurance Company of Canada, this conduct does not give rise to a special award.

87As such, payment was not unreasonably withheld or delayed during this period. I find that there is no entitlement to a special award.

88As per 17-001630 v Travelers Canada⁵, the Tribunal held that, “unreasonable” in the withholding or delaying of benefits is “behavior by an insurer which was excessive, imprudent, stubborn, unyielding or immoderate, in withholding or delaying payments.”

89An award is not punishment for payment which is simply delayed because of differing views of the claim. The insurer's handling of the claim is not to be held to a standard of perfection and should not be judged with the benefit of hindsight, rather, it should be evaluated considering the information available to it at that time.

90This principle was accepted by the court in Malitsky v. Unica Insurance Inc.⁶, in dismissing the appeal of the reconsideration decision of Adjudicator Boyce. The court accepted Adjudicator Boyce's comments that:

insurance adjusters are not medical professionals, and they should not be held to that standard… I find it is unreasonable and quite unfair to expect adjusters who come and go with some regularity to micromanage the assessments of qualified professionals to ensure that their reports respond directly to the specifics of a claim or else risk exposure to a s. 10 award if they do not.

Delay from February 28, 2022, onward

91The respondent submits that stoppage of post-104 weeks IRBs and the adjusting of the application should not attract a special award.

92As stated above, following the s.44 assessments, the applicant was found to meet the substantial inability test. The applicant was advised on September 9, 2021, that as a result, a lump sum of $43,200.00 plus $5,918.92 of interest for the period from August 18, 2019, to September 12, 2021, would be deposited into her account. I found that there was no withholding of the benefit as payment was made with interest retroactive to the date of stoppage.

93The IRB then continued to be payable until November 8, 2021, when the applicant failed to attend s.44 assessments. As a result of miscommunication, Ms. Patel testified that the IRB was reinstated, in a letter dated December 2, 2021, pending the rescheduling of the post-104 weeks IRB s.44 assessments. The applicant was given backpay for the pay period of November 8, 2021 – December 5, 2021, stoppage date with interest.

94Following the completion of s. 44 assessments with respect to post-104 weeks IRBs, the applicant was advised on February 10, 2022, that she did not meet the complete inability test and thus the benefit would be stopped effective February 28, 2022.

95I find that at no time did the respondent withhold IRB payments to the applicant. The applicant was paid IRBs, minus the deductions for maternity leave EI benefits, from the date of the accident until the date of stoppage of February 28, 2022, at which time post-104 s.44 assessments determined that she did not meet the "complete inability" test. For periods where the respondent paused the benefit pending receipt of more information, the applicant was subsequently paid retroactively with interest as soon as new information was received.

96I find that as an accident benefit claims adjuster, Ms. Patel is not a medical professional and thus it is entirely reasonable for her to defer to the opinions and to rely on the conclusions of the s. 44 assessors in determining that the applicant did not meet the complete inability test. The resulting dispute is simply a difference of opinion between the s. 25 and s. 44 assessors.

97As per 17-001630 v Travelers Canada, the Tribunal held that, “unreasonable” in the withholding or delaying of benefits is “behavior by an insurer which was excessive, imprudent, stubborn, unyielding or immoderate.” The insurer's handling of the claim is not to be held to a standard of perfection and should not be judged with the benefit of hindsight, rather, it should be evaluated based on the information available to it at that time.

98I find that the applicant has not discharged her onus of proving the respondent’s conduct amounted to "excessive, imprudent, stubborn, unyielding or immoderate." The applicant has been paid an IRB up until February 28, 2022. She was no longer entitled to the benefit after that date.

Interest

99Given my finding that there are no benefits owing, the applicant’s is not entitled to interest.

ORDER

100I find that:

i. The applicant does not meet the "complete inability" test and is therefore not entitled to post-104 weeks IRBs from February 28, 2022, onwards.

ii. Maternity leave benefits are deductible pursuant to the Schedule.

iii. The applicant is not entitled to a special award as the respondent has not unreasonably withheld or delayed payments; and

iv. The applicant is not entitled to interest.

101The application is dismissed.

Footnotes

1. 12017 CanLII 76930 (ON LAT) at paras 13, 16 and 26-27.
2. 22018 CanLII 83536 (ON LAT)
3. 32021 CanLII 2008 (ON LAT)
4. 42022 CanLII 14950 (ON LAT),
5. 52018 CanLII 76431 (ON LAT)
6. 62021 ONSC 4603