Citation: Manosingham v. Commonwell Mutual Insurance, 2023 ONLAT 21-000106/AABS

Licence Appeal Tribunal File Number: 21-000106/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:

Markandu Manosingham

Applicant

and

Commonwell Mutual Insurance

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Alex Nikolaev, Counsel

For the Respondent:

Cecil Jaipaul, Counsel

HEARD:

In writing

OVERVIEW

1Markandu Manosingham (the “applicant”), was involved in an automobile accident on September 26, 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 Commonwell Mutual Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant passed away on June 23, 2022, and his representative filed an appeal with the Tribunal on the applicant’s behalf.

3The Tribunal issued a Motion Order on November 14, 2022, adding the respondent to the file, with an amended order issued on November 18, 2022.

4On November 28, 2022, the matter was adjourned.

5A second Motion Order was released on January 19, 2023, which appointed a Litigation Administrator for the applicant’s estate.

6The applicant withdrew the issue of an award in his written submissions.

ISSUES

7The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 1, 2020, to October 1, 2021?

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

RESULT

8The applicant is not entitled to a non-earner benefit of $185.00 per week from October 1, 2020, to October 1, 2021.

9The applicant is not entitled to interest.

ANALYSIS

The applicant is not entitled to the non-earner benefit

10The applicant submits that the respondent’s denial of the non-earner benefit (“NEB”) and request for examinations do not comply with the Schedule. The applicant also submits he is entitled to the NEB because he suffers a complete inability to live a normal life as a result of the accident. The respondent disagrees.

11Section 36(4) of the Schedule states that when an insurer receives an application and completed disability certificate, within ten business days, it shall either pay the specified benefit, give notice of the medical and any other reasons for the denial and advise the applicant to attend an examination, or send a request for information under section 33 of the Schedule.

12Section 36(6) of the Schedule states that if the insurer fails to comply with section 36(4) within the applicable time, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending when the insurer gave notice described in section 36(4) of the Schedule.

13Section 37(6) of the Schedule states that within 10 business days of receiving an Insurer’s Examination (“IE”) report, the insurer shall provide a notice to the insured person with the specified benefit it will and will not pay, the medical and any other reasons for the decision and the date that the payment of the benefit will be stopped if applicable.

14Section 44(5)(a) of the Schedule states that if an insurer requires an IE, it shall arrange for the examination at its expense and provide the insured person with a notice setting out the medical and other reasons for the examination.

15The applicant submits that the respondent requested that the applicant attend an IE with Dr. Eric Silver, general practitioner, and Rasul Kassam, occupational therapist, by letter dated December 30, 2019. The medical reason provided for this IE is: “The disability period appears to be inconsistent with the diagnosis or mechanism of injury”.

16The applicant argues that this letter failed to provide medical and any other reasons for requesting an IE based on section 44(5) and therefore, is not a valid notice. The applicant submits that any evidence produced from these IEs should be excluded.

17The applicant also submits that the letter sent by the respondent denying the applicant’s NEBs, dated September 28, 2020, fails to comply of the Schedule. The applicant submits this letter does not address the applicant’s specific, medical condition and instead only refers to the IE of Dr. Sabrina Ming-Wai Tu, general practitioner, dated September 15, 2020, and the “medical documentation on file”. The applicant submits that the respondent failed to provide medical and other reasons for the denial.

18The applicant also submits that since English is not his first language, it is vital that the applicant be provided with reasons he can understand that are simple, which the respondent failed to provide. Instead, the applicant submits that the letter fails to comment on the applicant’s medical condition. The applicant submits that as the respondent claims it has the applicant’s “medical documentation on file” it ought to have been aware of his specific conditions.

19The applicant did not specify which conditions failed to be named by the respondent in its notice nor provide evidence as to when information regarding his conditions was submitted to the respondent.

20The respondent’s letter of September 28, 2020, states: “Based on Dr. Tu's opinion and the medical documentation on file available for review, you do not suffer a complete inability to carry on a normal life as a direct result of injuries sustained in the subject motor vehicle accident. As such, your non-earner benefit stoppage date is October 1, 2020.”

21The applicant relies on the Tribunal’s decision of Mahhamoud v Aviva General Insurance, 2022 CanLII 11144 (ON LAT), where the Tribunal found that the medical reasons, which are the same as those in the subject matter, were not sufficient and were instead “boilerplate”.

22The applicant relies on the binding matter of Varriano v. Allstate, 2021 ONSC 8242, which adopts the reasoning found in the Tribunal’s decision 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). The applicant submits that based on these matters, the respondent is required to provide the applicant with medical and any other reasons for terminating a specified benefit, such as the disputed NEB. The applicant also submits that he is entitled to adequate information to allow him to decide if he would like to appeal the respondent’s decision and submits this was not the case in the subject matter.

23The respondent submits its request for IEs dated December 30, 2019, is valid under the Schedule. To this point, the respondent relies on the disability certificate (“OCF-3”) authored by Piramilan Thuraisingam, physiotherapist, and dated October 12, 2019. The respondent noted that the OCF-3 noted that the applicant suffered a whiplash-associated disorder II (“WAD-II”), sprain and strain of the lumbar spine and thoracic spine and tension-type headaches as a result of the accident. The respondent submits that the applicant’s period of disability of more than twelve weeks is inconsistent with his accident-related injuries.

24The respondent also notes that under the section related to the applicant’s disability lasting more than twelve weeks, Mr. Thuraisingam noted: “Patient has significant soft tissue injuries. He has functional limitations such as bending, climbing up the stairs, and doing house chores. He is also on dialysis and suffers side effects including fatigue. He has multiple comorbidities that will delay the healing process.” The respondent also submits that the OCF-3 expressed concerns regarding the applicant’s functional limitations that were unrelated to the applicant’s accident.

25Mr. Thuraisingam also noted under the section related to pre-existing diseases, conditions and injuries that: “Knee injury, sleep deprivation, nervousness and anxiety”.

26The respondent submits that the respondent found that the applicant’s disability period was not consistent with his diagnosis, and it required an IE to determine if the applicant was eligible for an NEB. The respondent submits its IE request communicated how the respondent required information in terms of the applicant’s medical records.

27The respondent submits the reasons section of the IE request is clear and sufficient enough to provide an unsophisticated person to make an informed decision and satisfies the consumer protection goals of the Schedule.

28To this point, the respondent relies on the Tribunal’s decision of K.K. v Aviva Insurance Canada, 2020 CanLII 72510 (ON LAT). In K.K., the Tribunal found that an insurance company’s request for an IE based on the same medical reasons as the subject matter was valid, clear and sufficient enough to provide an unsophisticated person to make an informed decision. The respondent relied on several other decisions from the Tribunal where insurance companies’ denials based on the same reasons as the subject denial were also found to be valid and sufficient.

29In terms of the respondent’s denial of the applicant’s entitlement to an NEB in its letter of September 28, 2020, the respondent also submits the denial was sufficient and valid under the Schedule, as it provided the applicant with the medical and other reasons for the stoppage of the applicant’s NEB; namely that based on its IE, the applicant did not suffer a complete inability to live a normal life as a result of the accident.

30The applicant submits that the caselaw relied on by the respondent is “bad caselaw” as it fails to refer to 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) which provides parties with the definition of valid medical reasons. The applicant argues that many of the cases relied upon by the respondent predate both 16-003316/AABS and the binding matter of Varriano, and therefore, are not relevant.

31I find that the respondent’s request for an IE of December 30, 2019, complies with the Schedule. I agree that I am required to follow the binding matter of Varriano and that both IE requests and denials of benefits must provide “medical and any other reasons”. I also agree with the applicant that cases that fail to follow this decision are not persuasive.

32I was not provided with the specifics as to what conditions(s) the respondent failed to address beyond the applicant’s OCF-3 stating that the applicant was on dialysis, had a knee injury, sleep deprivation, nervousness and anxiety. I was surprised that the applicant did not provide the Tribunal with information as to when he informed the respondent of the condition(s) that were not named in its notices and how this was communicated.

33After considering all of the evidence and submissions, I agree that the based on the circumstances of the applicant’s OCF-3, the respondent had concerns regarding the nature of the applicant’s accident-related injuries, in light of his serious, pre-existing conditions. However, as noted above, the applicant did not address specifically which conditions the respondent failed to address and when the applicant provided information regarding his conditions to the respondent.

34Though the OCF-3 provides the respondent with some information regarding the applicant’s pre-existing issues, it did not actually name the reason the applicant was on dialysis or provide information regarding his knee injury and mental health, and this information supplements through the applicant’s treating doctors’ clinical notes and records (“CNR”s).

35I also agree with the respondent and find that based on this context, meaning that the applicant was aware of his pre-existing conditions, that the respondent, the medical and other reasons provided by the respondent satisfy the requirements of the Schedule.

36I found the respondent’s arguments regarding Mr. Thuraisingam’s OCF-3 provided context as to why the respondent required further information regarding the applicant’s disability period and his diagnosis or mechanism of injury, given my comments regarding the applicant’s conditions.

37I agree that based on the situation at hand, meaning the respondent’s concerns regarding the applicant’s OCF-3, the notice was clear given the applicant’s circumstances, the applicant was provided with all the required information to determine why the respondent required the applicant to attend an IE. Therefore, I find the notice to be sufficient.

38I also found the matter of K.K. persuasive, as it addressed the issue of a respondent providing sufficient “medical and any other reasons” for an IE based on a near identical reasons as those in dispute This matter was convincing, as it also relied on the matter of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), where the Tribunal established the framework related to sufficiency of notice.

39I also find that the reasons provided in the respondent’s request for an IE comply with Varriano, as they provide the applicant with medical and other reasons. In this case, the other reasons are that the applicant’s period of disability does not match his injuries in light of his OCF-3.

40In the context of considering the OCF-3 of Mr. Thuraisingam, I agree that there was a lack of clarity regarding the applicant’s limitations and the causation of these limitations, meaning if they were related to the applicant’s pre-existing limitations or his accident-related limitations. I also agree that this concern was communicated to the applicant clearly and sufficiently for an unsophisticated person to understand.

41In terms of the applicant’s request that the IEs from this letter be excluded since I have found the IE notice to be valid, I will consider the evidence. However, since the respondent did not rely on this evidence, this argument is moot.

42In terms of the respondent’s denial of the NEB dated September 28, 2020, I also find that the denial complied with the Schedule. The issue in dispute, namely the applicant’s entitlement to an NEB, was denied based on medical and any other reasons. In this case, the denial was based on Dr. Tu’s IE, which found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

43As discussed in Varriano, the respondent is required to provide the “medical and any other reasons”. In this case, though the medical reasons or condition was not specifically discussed, the respondent did prove reasons by “any other reasons”, meaning the findings of the IE, which found that the applicant did not meet the legal test.

44Though I did consider the matter of Mahhamoud v Aviva General Insurance, I did not find it persuasive, as it addressed a request for an IE and an insurer’s request for information under section 33 of the Schedule. The request for an IE was found to be invalid in the context of receiving an applicant’s CNRs. In this case, as discussed above, the applicant did not provide evidence as to when he provided the respondent with his CNRs or disclosed his pre-existing conditions beyond the previously discussed OCF-3. Therefore, I did not find this matter persuasive. Instead, in the context of this matter, I find the respondent’s denial of the NEB is found to be valid.

45I must now address if the applicant has met the NEB test. Section 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.”

46The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

47The applicant relies on the OCF- of Mr. Thuraisingam, physiotherapist, and dated October 12, 2019. The OCF-3 provided that the applicant suffers a complete inability to carry on a normal life, with an estimated duration of disability lasting more than twelve weeks.

48The respondent relies on the applicant’s OCF-3 of Mr. Thuraisingam . The respondent noted that the OCF-3 noted that the applicant suffered a whiplash-associated disorder II (“WAD-II”), sprain and strain of the lumbar spine and thoracic spine and tension-type headaches as a result of the accident.

49The respondent also notes that under the section related to the applicant’s disability lasting more than twelve weeks, Mr. Thuraisingam noted: “Patient has significant soft tissue injuries. He has functional limitations such as bending, climbing up the stairs, and doing house chores. He is also on dialysis and suffers side effects including fatigue. He has multiple comorbidities that will delay the healing process.” The respondent also submits that the OCF-3 expressed concerns regarding the applicant’s functional limitations that were unrelated to the applicant’s accident.

50Mr. Thuraisingam also noted under the section related to pre-existing diseases, conditions and injuries that: “Knee injury, sleep deprivation, nervousness and anxiety”.

51The respondent submits that based on Heath, the applicant carries the onus of proving entitlement to an NEB and submits he has not done so. The respondent submits that the applicant has failed to compare his pre- and post-accident activities and how those have changed due to his injuries, causing a complete inability to live a normal life.

52I find that the applicant is not entitled to an NEB. I agree with the respondent, and that, under Heath, the applicant must compare his “normal life” before and after the accident over a reasonable period. In this case, I have not been provided with information on how the applicant spent his time before the accident, and after. Therefore, I was not provided with information as to what impact the applicant’s accident-related injuries have had on him and how they cause a complete inability to live a normal life. Without this, the applicant has not met his evidentiary burden.

53Though the applicant’s OCF-3 provides limited information, this does not speak to the legal test before the Tribunal, given the issue of causation. The applicant did not provide any direct evidence that spoke to the Heath factors or gave the Tribunal a “fulsome” idea of how his life was impacted by the accident.

54Therefore, I find that the applicant has not shown that he suffers a complete inability to live a normal life as a result of the accident, and is not entitled to the NEB.

Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is outstanding.

ORDER

56The applicant is not entitled to a non-earner benefit of $185.00 per week from October 1, 2020, to October 1, 2021.

57The applicant is not entitled to interest.