Perrigard v. Primmum Insurance Company, 2023 CanLII 67905

Perrigard v. Primmum Insurance Company, 2023 CanLII 67905

Citation: Perrigard v. Primmum Insurance Company, 2023 ONLAT 19-010651/AABS

Licence Appeal Tribunal File Number: 19-010651/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:

Ian Perrigard

Applicant

and

Primmum Insurance Company

Respondent

DECISION

VICE-CHAIR:

Chloe Lester

APPEARANCES:

For the Applicant:

Maciek R. Piekosz, Counsel

For the Respondent:

Allison Webster, Counsel

Court Reporter:

Elaine Hale

Observer:

Bonnie Oakes Charron, Member

Heard by Videoconference:

May 29-30, 2023

OVERVIEW

1This application has a long history before the Tribunal.

2Ian Perrigard, the applicant, was involved in an automobile accident on December 28, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

3An initial case conference took place on April 1, 2020. The issues in dispute were whether the applicant was entitled to income replacement benefits (IRBs) and two treatment plans. The following two preliminary issues were raised by the respondent:

i. Is the applicant precluded from proceeding with his application because it was filed more than two years after the respondent denied each benefit claimed in the application?

ii. Is the applicant precluded from proceeding with the claim for IRB after March 3, 2017, because he failed to comply with the insurer’s request (i) that he submit a disability certificate (OCF-3); and (ii) that he attend s. 44 insurer examinations (IEs)?

4The preliminary issues were decided in a decision dated November 25, 2021, which determined that the applicant was precluded from proceeding with his application because it was not filed within two years of the respondent’s valid denial. The Tribunal noted that because the applicant had returned to full-time employment, and the respondent listed this as its reason to cease the benefit, it was not obligated to provide a “medical reason” in its termination letter. The Tribunal also decided that the notices for the IEs were clear and valid. Therefore, the applicant was obligated to attend the IEs before proceeding to a hearing.

5A few weeks after the Tribunal’s decision was released, Varriano v. Allstate, 2021 ONSC 8242 was released by Divisional Court. In that decision, the Divisional Court reiterated that even though an insured person returns to full-time employment, the letter terminating the IRBs must include the “medical” and all other reasons for doing so. The applicant then requested a reconsideration of the Tribunal’s decision. Based on the Varriano decision, the Tribunal on reconsideration overturned the original decision and allowed the matter to proceed to a hearing. The reconsideration decision confirmed that the scheduled IE notices were valid and provided enough information to the applicant to determine whether he wanted to attend. The applicant chose not to.

6Given that the application could proceed, another case conference was held, and a two-day videoconference hearing was scheduled.

7After the reconsideration was issued, and prior to the hearing on the substantive issues, the Court of Appeal overturned the Divisional Court decision on Varriano. Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 has now confirmed that when an insured person returns to work, the insurer’s termination letter does not need to provide a “medical reason” for ceasing the benefit. An application for leave to appeal the Court of Appeal's decision in Varriano to the Supreme Court of Canada is currently pending.

8This hearing concerns the substantive issue of the IRBs, but, also whether the respondent can reinstate the preliminary issues in dispute.

ISSUES

9The preliminary issues in dispute in this hearing are:

i. Based on the Court of Appeal decision of Varriano, is the respondent entitled to reinstate the preliminary issue of whether the applicant is barred from proceeding to a hearing on the issues in dispute because he failed to apply to the Tribunal for dispute resolution within two years of the denial of the benefit?

ii. If the answer is yes to question (i), is the applicant barred from proceeding to a hearing on the issues in dispute because he failed to apply to the Tribunal for dispute resolution within two years of the denial of the benefit?

iii. Since the reconsideration decision confirmed the respondent had issued valid requests for IEs and the applicant has not attended them, can the substantive issues proceed before me?

iv. Can the Tribunal compel the applicant to participate in an IE by imposing terms and conditions in accordance with s. 55(3)?

v. Is the applicant barred from proceeding to a hearing on IRBs because the applicant failed to attend IEs as per s. 55(2) of the Schedule?

10As amended by the applicant at the hearing, the substantive issues in dispute are:

i. Is the applicant entitled to IRBs in the amount of $400.00 per week from August 4, 2017, to August 8, 2022?

ii. Is the respondent liable to pay an award under 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

11The applicant is statute-barred from proceeding to a hearing because he failed to apply to the Tribunal within two years of the respondent’s denial.

12In addition, the applicant is not entitled to the benefits being claimed as he failed to attend properly scheduled IEs. The application is dismissed.

PROCEDURAL ISSUES

13The parties disagreed on how the hearing should proceed. The respondent argued that the preliminary issues must be heard first and decided before any substantive issues may proceed. The respondent also submits that as per the reconsideration decision, the applicant had an obligation to attend the IEs before proceeding to a hearing. The applicant argues that in accordance with the order dated April 27, 2023, all the issues in dispute were to be heard together.

14I find the April 27, 2023, order was clear that all issues were to be heard together in this hearing. This application before the Tribunal has been ongoing since 2019 and therefore, it is imperative that the parties have access to an efficient hearing and timely resolution. Therefore, I ordered that the parties present all arguments for the issues in dispute in this hearing.

15The next procedural dispute concerns the applicant as a witness. Originally the applicant was listed as a witness on the final witness list filed with the Tribunal 30 days before the hearing. A few weeks before the hearing, counsel for the applicant advised the respondent that the applicant would not be testifying. The respondent then summonsed the applicant. The respondent argues that it had issued a summons for the applicant to attend the hearing and testify because it was advised by counsel that the applicant would not be testifying. The applicant argues that since the respondent had no medical reports to defend its position, there was no need for him to testify. He submits the parties should be able to rely on the medical reports.

16The respondent requested that I allow it to treat the applicant as a hostile witness. The applicant argues that since the respondent has summonsed the applicant, it is only allowed to conduct an examination-in-chief.

17Rather than conducting an examination-in-chief, and the respondent treating the applicant as a hostile witness, I find that it is reasonable for the respondent to challenge the applicant’s evidence through cross-examination. The applicant bears the onus to prove entitlement to benefits and has produced his personal medical evidence in support of it. Many of the documents relied on are based on his self-reports to treating practitioners. I find that the respondent should be able to test the information provided to the various assessors upon which they based their opinions. The applicant filed an application to the Tribunal to determine his entitlement to benefits. I find it is procedurally fair to allow the respondent to cross-examine the applicant to test the evidence before the Tribunal. I ordered that the respondent may cross-examine the applicant.

18The respondent also requested to add additional decisions to its book of authorities. It argued these cases are in direct response to the issues in dispute and one is a Divisional Court decision which the Tribunal is bound by. The applicant opposed this and argued the parties were expected to present and exchange all cases that they would rely on in advance of the hearing.

19I find the respondent may rely on those decisions as the applicant was given enough notice in advance of closing submissions and as a result, should not be surprised by it. Further, the applicant will have an opportunity to comment on the applicability of the cases or lack thereof.

20Before deciding on the preliminary issues, it is important to understand the history of the accident benefits claim as it pertains to the IRB.

21The respondent paid IRBs to the applicant after he was injured in an accident on December 28, 2015.

22The applicant was cleared to perform modified duties and hours beginning November 14, 2016, and returned to full duties and hours by January 9, 2017. In a letter dated February 27, 2017, the respondent wrote to advise the applicant that the IRB would cease on January 9, 2017, the day he returned to full duties and hours.

23The applicant’s job was terminated on March 28, 2017. The parties disagree on the reason for the termination. The applicant argues that based on his injuries from the accident, he no longer could keep up physically and mentally with his job duties and was subsequently issued verbal warnings. The company then terminated his employment. The respondent argues that based on the record of employment, the applicant’s job was terminated based on a re-organization.

24After the applicant’s job was terminated, the adjuster was advised of his employment status. On April 21, 2017, the respondent wrote to the applicant advising him that to determine ongoing entitlement to a specified benefit, he was required to complete a disability certificate (OCF-3) by May 16, 2017.

25In a letter dated June 9, 2017, because the applicant had not produced a new OCF-3, the respondent requested that the applicant attend IEs. On the same day, the respondent sent another letter to the applicant requesting documentation to understand his medical status pursuant to s. 33 of the Schedule.

26The applicant failed to attend the scheduled IEs. As a result, the respondent issued a letter to the applicant advising him that his IRBs would be suspended as of June 19, 2017.

27On July 25, 2017, the respondent re-scheduled the IEs for August 2017 and the applicant failed to attend those as well.

28The applicant submitted an OCF-3 to the respondent on or around August 4, 2017.

29After the reconsideration decision was released, indicating that the respondent had issued valid IE notices, the respondent rescheduled the IEs so that the applicant had an opportunity to attend them before this hearing. He did not attend them.

ANALYSIS

The effect of The Court of Appeal’s decision on this hearing

30The applicant disagreed with adding the preliminary issue of the limitation period and the impact of the recent Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 decision. He claims that he had no knowledge that this issue might be added to the hearing and, therefore, it would be procedurally unfair to allow the respondent to make this argument. The respondent argues that the April 27, 2023, order makes it clear that the parties would have an opportunity to present additional submissions on the Court of Appeal’s decision.

31I find the applicant was aware that the respondent intended to bring the issue forward. It was discussed at the April 2023 motion hearing, and it was ordered in paragraph 15 of the motion order that the parties would have an opportunity to present submissions at the hearing. In addition, based on the discussions during the hearing, the parties were granted an opportunity to provide written submissions after the hearing on this very issue.

32The applicant then argued that the additional submissions should only deal with whether the preliminary issue of the limitation period should be added. Then once my decision is rendered, the applicant requested that he be given an additional opportunity to present arguments on whether the respondent issued a valid denial to begin the two-year time limitation for filing an application to the Tribunal. The respondent had no submissions on this request.

33I denied the request. As indicated earlier, this application was filed in 2019. To ensure efficiency and a timely resolution of the issues in dispute for the parties, I had previously ordered that during the hearing all issues would be argued in one hearing. The applicant is trying to bifurcate the hearing, which would not deliver expeditious results. The parties were directed to provide their full submissions on these issues after the hearing ends.

34As detailed above, the only reason the Tribunal in its reconsideration overturned the original decision and allowed the proceeding to a hearing was because of the Divisional Court’s decision in Varriano. That decision required the insurer to state the “medical” and other reasons for the denial. Therefore, based on the Divisional Court’s decision, the Tribunal’s reconsideration decision found that the respondent had not issued a valid denial and allowed the matter to proceed to a hearing.

35The respondent argues that the Court of Appeal decision in Varriano confirms the Tribunal’s original decision and therefore the preliminary issue of the limitation period should be added to this hearing. In support of its position, the respondent relies on Haig v. Director, Ministry of the Environment, Environmental Review Tribunal, 2008 O.E.R.T.D. No. 42; and Theivendran v. Canada (The Minister of Citizenship and Immigration), (1994) 88 F.T.R. 94 (TD), that the Tribunal has the discretion to entertain submissions on an issue when a new authority is released after the closing of a hearing. It also cites the Tribunal’s decision in Sinnicks v Northbridge General Insurance Company, 2023 CanLII 32790, and Davis v Aviva General Insurance Company, 2022 CanLII 70502, that it would be an error of law for the Tribunal not to follow binding court-issued decisions that are directly applicable to the set of facts in a case. Lastly, it argues that the Court of Appeal has held that if the decision of a court in an earlier proceeding is shown to be wrong by a later judicial decision, the issue of estoppel will not prevent relitigating that issue in subsequent proceedings. This is stated in Robb Estate v. St. Joseph's Health Care Centre, 2001 Can LII 481 (Ont. C.A.), and Apotex Inc. v. Shering Corporation et al., 2018 ONCA 890, which are both binding on me.

36The applicant argues that reinstating the preliminary issue of whether the applicant is time-barred from proceeding to a hearing based on the limitation period permits the respondent to re-litigate the reconsideration of the Tribunal. He argues the principle of res judicata applies because the reconsideration involves the same parties and the issues in dispute have already been decided. Further, the decision was within the Tribunal’s jurisdiction, it was made on its merits and the decision was final. He also argues that the respondent had an opportunity to appeal that decision to a higher court and it chose not to. He relies on a Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 at paragraph 18 quoting that “an issue, once decided, should not generally be relitigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause.” The applicant also argues that Haig and Theivendran are distinguishable because in both cases relevant case law was released prior to the hearing concluding and a decision being issued.

37I agree with the respondent and find that it is not estopped from raising the preliminary issue. In general, I agree issue estoppel is a remedy available to preclude an unsuccessful party from relitigating an unfavourable decision, but in my view, this is not a proper case for its application. As stated in Danyluk litigants are required to always put their best foot forward at the initial hearing to prevent abuse of the hearing process. It highlights that res judicata should be used to prevent abuse of the judicial system. The decision highlights that the courts have the discretion to refuse to apply issue estoppel, but it should be used in limited circumstances. Such discretion can extend in the cases of administrative tribunals because of the diversity of the structure and mandates.

38Although I agree that the test for issue estoppel has been met; the issue in dispute involves the same parties, the decision was within the Tribunal’s jurisdiction, and it was made on its merits. However, there are a few reasons why I should exercise discretion and refuse to apply issue estoppel.

39Firstly, the Court of Appeal’s decision on Varriano is directly on point, and it overturned the Divisional Court’s decision, which was the very basis for why the reconsideration allowed the application to proceed to a hearing. The Court of Appeal’s decision is binding on me and created a new understanding of the Schedule and therefore its results should be applied in the case before me.

40Secondly, the application is still before the Tribunal, therefore the decision is not final. Because the Tribunal’s reconsideration decision allowed the matter to proceed, the decision was not final. The Tribunal still has the jurisdiction to decide all matters pertaining to the application. The decision to allow the issue to be added to the hearing still results in a fair and expeditious resolution of the application. The parties have also had an opportunity to make full submissions on this preliminary issue and the additional issues that may flow from it.

41In Danyluk, the Supreme Court of Canada stated that “as a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.” I find that not considering the Court of Appeal’s decision in Varriano and its impact on this hearing would be an error of law because it is binding on me. This would create an injustice because it was the only reason why the reconsideration was overturned. Looking at the entirety of the circumstances, I find that ignoring the preliminary issue would result in an unfair adjudication of the claim.

42Another factor to consider is whether the parties have other appeal opportunities to remedy any issues of procedural fairness. In this case, there are opportunities to appeal after my final decision is rendered. However, I find that it would be wholly unfair to the parties if this issue is not considered in the first instance, and in an expeditious matter. Had I not allowed this issue to proceed, and a higher court decides I rendered a wrong conclusion, potential entitlement to benefits might be further delayed. This application was ultimately filed in 2019 and because of the delays of COVID-19, overturning of the decision on reconsideration, rescheduling of case conferences and booking a hearing, the applicant has been delayed by four years in having a final decision on his application.

43Therefore, I order that the issue of whether the applicant is precluded from proceeding to a hearing because he failed to file an application with the Tribunal within two years of the denial be added to this hearing.

44The respondent argues that if this issue is added to the hearing, the Tribunal’s original decision should be reinstated.

45I find that I do not have authority within any governing law, act or regulation that allows me to reinstate a fellow adjudicator’s decision in this current new hearing. The respondent is asking me to impose a remedy only available to Divisional Court. In my opinion, the results of the Tribunal’s reconsideration decision allowed the issues to proceed to a new hearing, on fresh submissions and evidence.

Is the applicant precluded from proceeding to a hearing because he failed to apply to the Tribunal within two years of the denial?

46The onus is on the respondent to show that the two-year limitation period started to run when a proper denial was served on the applicant. The respondent argues its letter dated February 27, 2017, complied with all statutory requirements to begin the limitation period. It argues, as per s. 56, the respondent is obligated to provide notice to the applicant that it is denying a benefit to invoke the two-year limitation period. As per Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R.129 (SCC), the denial must be clear and unequivocal, and in accordance with s. 54 of the Schedule, the letter must provide information on how to dispute the decision. The respondent submits all three obligations were followed by it in the letter to the applicant dated February 27, 2017.

47The applicant argues that the respondent did not provide a clear and unequivocal denial of IRBs. It argues that on at least 8 occasions from 2017 until 2019 the respondent advised him that he could not apply to the Tribunal and told him on at least 6 occasions that his application for IRBs will be reconsidered once certain criteria were met.

48I find the applicant is precluded from proceeding to a hearing on his entitlement to IRBs because he failed to apply to the Tribunal within two years of the denial. The applicant was advised on February 27, 2017, that his IRBs were terminated because he had returned to full-time work. The applicant did not provide submissions on why this letter should not be a valid denial triggering the two-year limitation period. The applicant focused his submissions on all the communication with the respondent that occurred afterwards; the letters that indicated how the applicant could reinstate his benefits and the repercussions that may ensue if he does not follow its requests.

49From reviewing the letter, the respondent proved it met all the statutory requirements for a proper denial. The letter advised the applicant it was ceasing the benefit because he had returned to his pre-accident employment, the benefit was terminated effective January 9, 2017, if any of the information was incorrect then the applicant should immediately advise the respondent and attached the dispute resolution process. I find the respondent proved that the February 27, 2017, letter was a valid denial by meeting all the required information set out in the Schedule. I find the information contained in the letter clear and unequivocal that the applicant could dispute it if he chose to. In accordance with s. 56, the denial letter was issued on February 27, 2017, and since the applicant applied to the Tribunal for dispute resolution outside of the two-year time limitation period, on September 30, 2019, I find his application is out of time.

50I do acknowledge that s. 7 of the Licence Appeal Tribunal Act provides me with the discretion to extend a limitation period if it determines there are reasonable grounds to do so. Consideration depends on the facts of each case but is based on four factors: a bona fide intention to appeal; the length of the delay; the prejudice to the other party; and the merits of the appeal. The applicant provided no submissions to support an extension to allow him to proceed with his application.

51Therefore, the applicant is precluded from proceeding to a hearing on the issue of IRBs.

52For completeness, and to ensure an efficient hearing with a timely resolution, I will provide additional reasons why the applicant’s case fails.

The reconsideration and whether the applicant is precluded from proceeding to a hearing because he failed to attend IEs

53Since the Tribunal’s reconsideration decision confirmed that the respondent issued valid requests for IEs and the applicant has not attended them, can this matter proceed to a substantive hearing before me?

54The respondent argues that the Tribunal’s reconsideration decision explicitly stated that the IE notices were sufficiently clear to allow the applicant to make an informed decision on whether to attend them, and he elected not to. Therefore, it argues that the applicant is precluded from proceeding to a hearing. The respondent asks that the Tribunal order the applicant to attend the IEs to assess entitlement prior to the substantive hearing.

55The applicant argues that the respondent cannot ask for IEs until a new OCF-3 was submitted to them as per s. 36. The applicant argues that since the respondent requested IEs before the OCF-3 was submitted, he had no obligation to attend them or prove entitlement to the benefit. The applicant argues that once the OCF-3 was submitted on August 4, 2017, the respondent had ten days to respond to it. He argues that because the respondent failed to respond to the request for benefits within the timelines prescribed in s. 36(4) of the Schedule, the respondent is subject to the “shall pay” provisions described in s. 36(6) and ends the day the respondent gives proper notice. He argues that case law has held the consequence of the “shall pay” provisions trump the obligation of the applicant to prove entitlement. He claims the respondent did not respond to the OCF-3 until August 9, 2022. Therefore, it is obligated to pay the IRBs for that five-year period.

56Before addressing the issue of whether the applicant had an obligation to attend IEs, the real issue in this hearing is how an insured person reinstates his IRBs after an attempt to return to work, and which sections of the Schedule apply. By determining this issue, then it answers the question of whether the respondent could request IEs or a new OCF-3.

57In this case, the applicant applied for and received IRBs for approximately one year, at which point he returned to full duties and full hours. The respondent then issued a letter on February 27, 2017, indicating that because the applicant had returned to work, his IRB would cease effective January 9, 2017.

58The applicant was then terminated from his employment on March 28, 2017.

59By April 21, 2017, the applicant advised the respondent he stopped working effective March 28, 2017, and wished to reinstate his IRBs. The respondent in a letter dated April 21, 2017, advised that to determine the applicant’s ongoing entitlement for IRBs, he must submit a new disability certificate (OCF-3) on or before May 16, 2017. Failure to do so by that date, the respondent warned that no benefit would be payable until the OCF-3 was received.

60Having not received a completed OCF-3 by that date, the respondent requested the applicant attend IEs.

61The question in this hearing is how an applicant reinstates an IRB claim after a temporary return to work.

62The applicant submits that when assessing a reinstatement of IRBs, the parties should refer to s. 36 of the Schedule for guidance. He argues that the ability of the respondent to request IEs can only be after an OCF-3 is received. In accordance with s. 36(4), the respondent must receive an OCF-3 first, at which point it has ten days to respond, and it is only then, it may ask for IEs. The applicant argues that since the respondent requested IEs in advance of receiving an OCF-3, the request was invalid, and therefore cannot be relied upon to bar the applicant from proceeding to a hearing in accordance with s. 55(1)2. He also argues that since the respondent did not respond to the new OCF-3 submitted on August 4, 2017, the consequences trigger the “shall pay” provisions under s. 36(6) of the Schedule. The applicant argues that the “shall pay” provisions continue until August 8, 2022, the day before the applicant received proper notice from the respondent requesting IEs.

63The respondent argues that s. 36 only applies to the initial entitlement. It argues that s. 37 should be followed because once IRBs began being paid, and even though it ceased, that section concerns ongoing entitlement to the benefit. Therefore, the respondent submits that when the applicant requested that IRBs be reinstated, it had every right as per s. 37 to request an OCF-3 and/or IEs.

64This is a novel issue, and the parties have not directed me to case law that interprets the Schedule in a way that clarifies the process for reinstating the benefit.

65The modern approach to statutory interpretation is set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC). The decision requires me to read the sections in their entire context and in the ordinary sense, harmoniously with the Schedule, with the object of the Schedule, and the intention of the legislature, which ought not to produce an absurd consequence that may be illogical or incompatible with the object of the legislation.

66I find that s. 36 provides instruction on how an insured applies for initial entitlement and s. 37 of the Schedule applies to ongoing entitlement to benefits including reinstatement of IRBs. What leads me to this conclusion is the fact that there are two instances in s. 36 of the Schedule which obligates the insured to provide a completed OCF-3 with his or her application for accident benefits (ss. 36(2) and (4)). Failure to do so could result in consequences, namely a delayed entitlement to benefits. The application referred to in s. 36 is the same one referred to in s. 32. That application is the first form received by an insured after he or she advises the insurer they have been in an accident and may need access to benefits. Once received, the form must be completed within 30 days. In contrast, s. 37 of the Schedule applies to ongoing entitlement to benefits including reinstatement of IRBs. Section 37(1) provides direction to the insurer that once IRBs are being paid to determine “if an insured is still entitled to a specified benefit” it may ask for an OCF-3, request IEs, or both. Section 37(2) provides that the respondent cannot discontinue paying the benefits unless one of the conditions are met. Also, s. 37(3) provides consequences to the insured if he or she fails to attend IEs or fails to complete an updated OCF-3. Specifically, the insurer may discontinue paying benefits.

67In this case, since the applicant returned to full-time work, one of the conditions was met under s. 37(2), which allowed the respondent to discontinue paying the benefit because he had resumed his pre-accident employment duties.

68Reading the Schedule in its entire context, s. 11 allows the insured anytime within the pre-104 timeframe to temporarily return to employment without penalty. It states:

A person receiving an income replacement benefit may return to or start employment or self-employment at any time during the first 104 weeks for which he or she is receiving the benefit without affecting his or her entitlement to resume receiving any benefits to which he or she is entitled under this Part if, as a result of the accident, he or she is unable to continue the employment or self-employment.

69Therefore, once the applicant advised the respondent that he could no longer work due to his accident-related injuries, it had an obligation to automatically reinstate IRBs. The only reason why the respondent ceased payment of the benefit was because the applicant had returned to his employment. Once that was no longer the case, the reasons provided in the applicant’s termination letter no longer applied, and therefore, it must pay the benefit. Once benefits are reinstated the respondent could ask for an updated OCF-3 and/or for IEs to determine whether the applicant is still entitled to the benefit.

70Section 11 supports that the applicant had the ability to attempt a return to work during the first 104 weeks, which he did, without affecting his ability to resume the benefit. The applicant worked for about 2.5 months before, and as he alleges, his employment was terminated because his accident-related injuries caused an inability to meet the physical demands of his job. Therefore, in accordance with s. 11, the applicant’s attempt to return to work should not affect his entitlement to resume the benefit. This leads me to conclude, that once advised, the respondent had an obligation to resume IRB payments.

71In my opinion, even though the respondent was required to, but did not reinstate the benefit immediately, it still could ask for a new OCF-3 or IEs to determine ongoing entitlement to benefits.

72The respondent initially requested a new OCF-3 in a letter dated April 21, 2017. It requested that the form be filled out and returned to the respondent by May 16, 2017. When a form was not returned by the date provided, the respondent requested that the applicant attend IEs to determine entitlement to the benefit. Since the applicant did not attend those assessments, in a letter dated June 19, 2017, the respondent suspended the benefits until such time he attends them. That suspension of benefits is permitted by s. 37(3) of the Schedule.

73Therefore, the respondent should have paid the applicant IRBs beginning March 28, 2017, until June 19, 2017, the day the respondent advised the applicant his IRBs were being suspended.

74To this day, the applicant has not attended any of the scheduled IEs.

75The applicant submits that IEs were not required or necessary because, firstly, the respondent had no authority under the Schedule to request them until an OCF-3 was submitted. Secondly, since the respondent did not respond to the OCF-3 within the required timeframe, it is required to pay the IRBs in accordance with the “shall pay” provisions and therefore there is no requirement to prove entitlement to the benefit.

76The applicant argues that the only valid request for an assessment was on August 9, 2022, after he submitted the OCF-3. Since he is not claiming any IRBs past that date, the applicant argues there is no need for the IEs. He argues that any request prior to August 4, 2017, should not be considered valid.

77I disagree. Section 44 explicitly allows an insurer to assess an insured to determine if he or she is, or continues to be entitled to a benefit, but not more often than is reasonably necessary. The applicant was requesting that IRBs be reinstated, therefore, the respondent can request an assessment to determine entitlement. Also, based on my decision above that the respondent ought to have reinstated the benefit immediately after being advised that the applicant was no longer working, the respondent had the right to ask for an OCF-3, request IEs, or both.

78The respondent argues that since the Vice-Chair’s reconsideration decision confirmed that the IE requests were valid, and since, the applicant chose not to attend them, he should not be allowed to proceed to a hearing on the substantive issue of IRBs. It asks that the hearing should not proceed in deciding entitlement to the IRBs until the applicant participates in the s. 44 IEs. It also asks that under s. 55(3) the Tribunal may impose terms and conditions on permission granted. Therefore, it requests, that the Tribunal force the applicant to attend before allowing the application to proceed on entitlement to the IRBs.

79The applicant does not argue that the IE notices themselves were improper, only that the respondent had no ability to request them until it had received an OCF-3. The applicant acknowledges the August 9, 2022, letter requesting IEs was proper as well, but since he is not claiming entitlement past this date, again, there is no obligation for the applicant to attend it.

80I disagree. Put simply, the applicant requested IRBs, the respondent can assess him to determine entitlement to the benefit. The applicant is interpreting the Schedule in a way that produces an absurd result. If I agreed with the applicant’s interpretation of the Schedule, this would allow an applicant to adjust the time period for claiming benefits to avoid attending assessments. This is surely not the intent behind the Schedule. As there is nothing in the applicant’s submissions that leads me to believe that the notices for IEs were insufficient, he had an obligation to attend them.

81Since he has not attended the IEs, the respondent asks me to invoke s. 55(3) and impose an obligation on the applicant to attend the IEs before a hearing on the substantive issue of entitlement to IRBs. I decline to do so. The applicant has had countless opportunities to attend the IEs. He has chosen not to. To delay this hearing further would go against the Tribunal’s mandate to provide decisions in a timely manner. Also, the applicant was aware from both the Tribunal’s initial and reconsideration decisions that the requests for IEs were valid, and again he chose not to attend. Assessing the applicant now, six years later, would also cause prejudice to the respondent. The respondent’s ability to assess the applicant for benefits should be close to the original request so that it may determine entitlement to benefits in a timely manner.

Conclusion

82The applicant is precluded from proceeding to a hearing on the substantive issues because he failed to apply to the Tribunal within the required timelines and failed to attend the IEs. However, although I agree the respondent had an obligation to pay him IRBs from March 28, 2017, until June 19, 2017, the applicant is not claiming entitlement to the benefit during that time. In the application, he asked for IRBs beginning August 4, 2017. Therefore, I cannot award him benefits that are not being sought.

Interest

83Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, the applicant is not entitled to interest.

Award

84The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

85The applicant argues that the request for an award is because the benefits were delayed by the respondent continuously requesting a record of employment (ROE) through s. 33 requests despite having it. He asks for a modest award of 10-15% of the benefits awarded.

86I do not find that the applicant’s benefits were delayed because the respondent continuously requested a copy of his ROE. The applicant’s delay in receiving benefits is because he failed to comply with the respondent’s request to assess his entitlement to the benefit. Therefore, the applicant is not entitled to an award.

ORDER

87I order that the application be dismissed.

Released: July 6, 2023

__________________________

Chloe Lester

Vice-Chair