21-000889/AABS

Licence Appeal Tribunal File Number: 21-000889/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:

Liridona Nura

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Stephen E Sloan, Counsel

For the Respondent: Rachelle Villanueva, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Liridona Nura, the applicant, was involved in an automobile accident on January 25, 2019, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) of $400.00 per week from February 1, 2019 to date and ongoing?

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

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

RESULT

3I find that:

i. The applicant has established entitlement to pre-104 week IRBs. However, the respondent is not liable to pay pre-104 week IRBs, as the applicant has failed to provide reasonably required information under s. 33 of the Schedule without reasonable explanation;

ii. The applicant is barred from proceeding with the issue of post-104 week IRBs due to non-attendance at a reasonably necessary scheduled insurer’s examination, pursuant to s. 55(1)2 of the Schedule;

iii. The respondent is not liable to pay an award under Regulation 664; and

iv. As no benefits are overdue, no interest is payable.

ANALYSIS

Pre-104 week IRBs

Entitlement to pre-104 week IRBs

4I find that the applicant has established entitlement to pre-104 week IRBs.

5The applicant claimed IRBs in the amount of $400 per week from February 1, 2019 to date and ongoing. Under s.5(1) of the Schedule, the respondent is required to pay IRBs if, as a result of and within 104 weeks of the accident, the applicant suffered a substantial inability to perform the essential tasks of her employment.

6The applicant was involved in a previous motor vehicle accident on November 16, 2006, where she sustained serious physical and psychological impairments, including a left hip injury. At the time, the applicant required an open reduction and internal fixation for her left hip fracture, with placement of three screws. The applicant submits that the subject accident aggravated her previous injuries.

7At the time of the subject accident, the applicant was employed as an employee and co-owner of a Montana’s Smokehouse (“Montana’s”). The tasks of her employment included: customer service, supervision, administrative tasks, serving, cooking and bookkeeping. The respondent submits that the applicant has not established entitlement to pre-104 week IRBs, relying on its s. 44 psychological and physiatry insurer’s examination (“IE”) assessments.

8Although the respondent relies on its IE assessments to deny the applicant’s claim, I do not find the assessments to be persuasive on the issue of a substantial inability to complete the applicant’s tasks of employment. With respect to the psychological IE assessment, Dr. Bradley opined that he was unable to render a DSM-5 diagnosis due to the incomplete nature of the assessment. However, I note that Dr. Bradley further stated that he believed that the applicant has accident-related psychological symptomatology, and queried possible diagnoses such as post-traumatic stress disorder, specific phobia (in the driving domain), and panic disorder.

9With respect to the physiatry IE assessment, in his report dated February 6, 2020, Dr. Khan found that from a physical perspective, there were no accident related physical diagnoses or impairments that would prevent the applicant from substantially performing the essential tasks of her employment. However, it does not appear that Dr. Khan reviewed extensive medical documentation relating to the applicant’s prior accident and pre-existing hip impairment. In his report, Dr. Khan notes that if any information regarding the applicant’s previous left hip injury became available, it would still be beneficial for him to review. The respondent’s subsequent physiatry IE assessor, Dr. Hosseini, did review diagnostic imaging relating to the hip injury in the context of post-104 week IRBs. Dr. Hosseini found that the applicant suffered a complete inability to engage in her employment from a musculoskeletal perspective, in large part due to her significant left hip and knee pain, the evidence of loosening of the screws of the left hip and the fact that the applicant will require a total left hip replacement surgery. As such, I find that the medical evidence supports the applicant’s position that she suffered a substantial inability to perform the essential tasks of her employment.

10Further, I note that in its correspondence with the applicant, the respondent did not appear to dispute the applicant’s entitlement to pre-104 week IRBs. In an Explanation of Benefits (“EOB”) dated July 31, 2020, although the respondent noted that Dr. Bradley’s psychological IE assessment was incomplete, it went on state “(g)iven that the assessment was not fully completed, at this time you continue to be entitled to income replacement benefit”.

11As such, I find that the applicant has established entitlement to pre-104 week IRBs.

Suspension of payment of pre-104 week IRBs due to non-compliance with s. 33 of the Schedule

12Although the applicant has established entitlement to pre-104 week IRBs, I agree with the respondent’s submissions that the applicant failed to provide information that was reasonably requested, pursuant to s. 33 of the Schedule. As such, pursuant to s. 33(6), the respondent is not liable to pay IRBs for any period that the applicant failed to provide the requested information.

13Throughout the period of the claim, the respondent has made multiple requests for financial documents which it submits were necessary to prepare an IRB calculation. The document requests changed, as more information became available and as the applicant was eventually established to be a self-employed business owner who was a 50% shareholder in the Montana’s business. The respondent contends that despite multiple requests, a number of necessary documents remain outstanding without reasonable explanation.

i. On May 15, 2019, July 16, 2019 and October 18, 2019 the respondent requested information including pre-accident pay stubs for four weeks pre-accident, all post-accident pay stubs from the date of accident, and the applicant’s Notice of Assessment for 2018;

ii. On November 28, 2019, January 2, 2020, January 30, 2020 and February 28, 2020, the respondent’s accountants, Davis Martindale, requested additional documents to calculate the IRB quantum, as it was now noted that the Montana’s was a family owned business. As such, Davis Martindale requested documentation including: the financial statements of Montana’s, detail and documentation supporting the amounts paid to the applicant by the business and details regarding the average weekly hours performed by the applicant;

iii. In its report dated August 6, 2020, Davis Martindale opined that it did not have sufficient information to calculate the applicant’s pre and post-accident income. It noted the outstanding documentation it still required, including: Montana’s financial statements for 2018 and 2019, Schedules 1, 8 and 50 to Montana’s Corporate Income Tax returns for 2018 and 2019; the CRA Corporate Notice of Assessment for 2018, and details and documentation supporting the amounts paid to the applicant and other family members and shareholders appearing on the business financial statements for 2018 and 2019.

14In a report dated February 8, 2022, Davis Martindale confirmed that these documents continued to be outstanding. While it provided a preliminary IRB calculation of $103.54/week it cautioned that it was unable to verify the number, as they had not received Montana’s financial statements for the fiscal years ended December 31, 2018 and 2019.

15The applicant does not appear to be disputing that these documents were not provided. However, she contends that the documents were unnecessary, and that sufficient documentation had already been provided. The applicant’s accountant, Ryan Benson, prepared an IRB calculation and the applicant submits an email from Mr. Benson stating that the outstanding documentation requested by the respondent was not necessary to calculate the IRB quantum.

16Upon a review of the submissions and evidence of the parties, I agree with the respondent that the outstanding documentation was information that was reasonably required to assess the quantum of IRBs.

17As the applicant was confirmed to be not only an employee, but also a co-owner of Montana’s, the applicant was considered to be a self-employed business owner. As such, the respondent asserts that in order to calculate IRBs it is necessary to determine the income/loss of the business by adding back all of the amounts paid to the business owners. The income/loss would then be allocated to the business’ owners on the basis of their relative contribution to the business.

18The respondent’s cited caselaw includes the Tribunal decision A.P and Economical Mutual Insurance Company 2019 CanLII 101433 (ON LAT), which I find to be persuasive on the issue. In this decision, similar documentation was requested for a self-employed hairstylist in order to calculate IRB quantum, namely, corporate income tax returns, documentation of the salon’s monthly revenues, labour costs, average costs and the insured’s pre and post-accident duties. The adjudicator held that by not providing this documentation, the insured had fallen short of providing documentation required to calculate IRBs under the Schedule as a self-employed person. I similarly find that the financial information requested by the respondent was reasonably necessary to calculate the quantum of IRB. The applicant has not provided any caselaw in support of her position that such documentation is unnecessary.

19As the applicant has failed to provide the respondent with reasonably required information to assess the quantum of the IRBs and failed to provide a reasonable explanation, pursuant to s. 33(6), the respondent is not liable to pay IRBs during this period of non-compliance. From the parties’ submissions, it appears that the period of non-compliance is the entire duration of the applicant’s claim for IRBs.

Post-104 week IRBs

20I find that the applicant is barred from proceeding with the issue of post-104 weeks IRBs, due to her non-attendance at a reasonably necessary scheduled IE.

21Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE¹.

22The respondent submits that the applicant failed to attend a properly scheduled vocational assessment without reasonable explanation. It submits an EOB dated August 10, 2021, which states that the applicant’s IRBs remain suspended, due to her non-attendance at the vocational assessment scheduled for June 14, 2021. I find that this assessment is reasonably necessary. The respondent’s physiatry IE assessor Dr. Hosseini expressly noted that as he was not provided with a vocational assessment, he could not determine whether the applicant suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

23The applicant did not provide any submissions or evidence disputing that the assessment was reasonably necessary. Nor did the applicant provide a reasonable explanation for her non-attendance. As such, I find that the applicant failed to attend a reasonably necessary IE meant to assess her entitlement to post-104 IRBs. Section 55(1) of the Schedule is triggered. I have not been given any rationale to exercise my discretion to permit her to proceed with this issue, pursuant to s. 55(2) and (3) and I decline to exercise it. Accordingly, the applicant is barred from proceeding with this issue.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

Award

25The applicant sought an award under s. 10 of Regulation 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.

26The applicant submits that the respondent’s position in refusing to pay the IRB constitutes bad faith and is the basis for her s. 10 award claim. In the matter at hand, I found that the applicant did not establish that IRBs are payable. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner on the issue of IRBs.

27From the submissions, it is unclear whether the applicant also contends that an award should be granted, due to the fact that respondent failed to remove her from the Minor Injury Guideline (“MIG”) even after receiving evidence of her significant pre-existing health history. However, I note that the MIG or treatment plans are not issues in dispute at this written hearing. Further, since there are no amounts owing to the applicant, there can be no withheld or delayed payments that could form the basis for an award. As such, I find that the applicant has not established the basis for an award.

ORDER

28For the foregoing reasons, I find that:

i. The applicant has established entitlement to pre-104 week IRBs. However, the respondent is not liable to pay pre-104 week IRBs, as the applicant has failed to provide reasonably required information under s. 33 of the Schedule without reasonable explanation;

ii. The applicant is barred from proceeding with the issue of post-104 week IRBs due to non-attendance at a scheduled IE, pursuant to s. 55(1)2 of the Schedule;

iii. The respondent is not liable to pay an award under Regulation 664; and

iv. As no benefits are overdue, no interest is payable.

Footnotes

1. 1State Farm Mutual Automobile Insurance Company v. S.R. and Financial Services Commission of Ontario, 2013 ONSC 2086.