Citation: Semyonov v. TD Home and Auto Insurance Company, 2024 ONLAT 22-009608/AABS

Licence Appeal Tribunal File Number: 22-009608/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:

Anna Semyonov

Applicant

And

TD Home and Auto Insurance Company

Respondent

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal Antonella Santi, Counsel

HEARD: By way of written submissions

1Anna Semyonov, the applicant, was involved in an automobile accident on July 14, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties were unable to resolve their dispute at a case conference so the matter proceeded to a written hearing.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 21, 2019 to date and ongoing?

ii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments, in a treatment plan (“OCF-18”) submitted March 29, 2022, and denied April 7, 2022?

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

v. Is the applicant entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”)?

RESULT

4After considering the parties’ submissions and all the evidence, I find as follows:

i. The applicant is entitled to payment of an IRB in the amount of $9,783.83, inclusive of interest.

ii. The applicant is not entitled to the OCF-18 in the amount of $2,460.00 for a neurological assessment proposed by 101 Assessments.

iii. The applicant is not entitled to an award.

iv. The applicant is entitled to costs in the amount of $500.00.

PROCEDURAL ISSUES

5The applicant requested that the respondent’s accounting report completed by Price Waterhouse Cooper (“PWC”) dated November 28, 2023, be excluded as evidence on the basis that it was not served by the deadline provided in the Tribunal’s case conference report and order (“Order”). The Order provided a deadline of August 6, 2023 (75 calendar days from the case conference) for the parties to exchange any evidence they intend to rely upon for the hearing; and a final deadline of September 20, 2023 (120 calendar days from the case conference) to exchange any responsive records or reports.

6The applicant submits that the respondent first served her with the PWC report on February 8, 2024, which was several days after the deadline for her to file her written submissions. The applicant argues that admitting the report would be procedurally unfair and highly prejudicial because she did not have the opportunity to respond to it. Further, the respondent did not provide an explanation for the lengthy delay in serving the applicant with the report when it was dated November 23, 2023. Instead, the respondent waited over two months to serve it on the applicant when it was aware of the written hearing date and deadlines for submissions.

7Section 15 (1) of the Statutory Powers and Procedures Act provides the Tribunal with the authority to admit any evidence that is relevant to a proceeding. I decline to exclude the report of PWC because it is relevant to the issue in dispute. However, due to the late service, the timing of that service and lack of explanation from the respondent for the delay I have given the report little weight because of the prejudicial impact on the applicant.

ANALYSIS

Has the applicant established entitlement to an IRB?

8The applicant has not proven on a balance of probabilities that she meets the pre- or post-104 disability test for entitlement to an IRB.

9Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. At the post-104 mark, the applicant must prove she has a complete inability to engage in any employment for which she is suited by education, training, or experience.

10Prior to the accident, the applicant was self-employed as the Director and part-owner of a medical assessment clinic. The insurer examination (“IE”) reports state that prior to the accident, the applicant worked full-time,10 hours per shift, 80 hours per week. Her job was sedentary from a physical perspective and involved desk work, cognitively demanding tasks involving the use a computer, and the ability to problem solve, compute, converse, multitask, focus and concentrate. Her position also involved case management where she would speak with patients and refer them to the appropriate doctors.

11The applicant submits that following the accident she took a few months off work but resumed working modified duties and hours and then stopped work completely on December 31, 2022. The applicant’s submissions indicate that she is claiming an IRB from July 22, 2019, to May 14, 2023. I find the applicant’s submissions unclear because she then states that she meets the post-104 test.

12The applicant argues that she sustained various physical and psychological impairments as a result of the accident which has resulted in a substantial inability to perform the essential tasks of her employment. The applicant relies on the clinical notes and records (“CNRs’) of her family doctor, Finch Physiocare Clinic and a disability certificate (“OCF-3”) dated January 7, 2020, which establishes that she sustained a substantial inability to carry out her employment tasks, but she could work modified hours and duties. She also relies on the psychological report of Lital Grinberg, psychological associate, dated January 11, 2022. The applicant submits that the respondent is not disputing whether she is entitled to an IRB. Instead, the respondent disputes the quantum of the benefit and improperly suspended the benefit on February 18, 2020, based on deficient notices.

13I find the applicant’s position that the respondent is not disputing her entitlement to an IRB is not accurate. In fact, the respondent does dispute that the applicant meets the disability test for entitlement to an IRB. Further, the respondent argues that the medical evidence relied upon by the applicant does not demonstrate that she meets the disability test for entitlement to an IRB. It relies on the IEs of Luigi Grimaldi, kinesiologist, dated May 20, 2021, Dr. Seon, psychologist, and Dr. Marchuk, physiatrist, both dated August 20, 2021, and addendum reports dated December 30, 2021.

14I find the applicant has not met her onus in proving on a balance of probabilities that she meets the pre- or post-104 test for IRBs for the following reasons.

15First, I find that the applicant’s family doctor’s CNRs unhelpful because she made very few visits to her family doctor post-accident where she made any accident-related complaints. Nor were there any entries in these records which reference the applicant’s inability to work because of any accident-related impairment. I also find the CNRs of Finch Physiocare Clinic do not assist because they are not legible and do not speak to the applicant’s inability to work because of any accident-related impairment. Further, while the OCF-3 may support that the applicant meets the disability test, it is well established that insurance forms on their own are insufficient evidence to prove entitlement to a benefit.

16Second, the applicant’s submissions did not address what the applicant’s pre-accident occupation was or what the essential tasks of her employment or self-employment were. In fact, the only information pertaining to the nature of the applicant’s employment came from the IE reports, which do not support entitlement. Nor do the applicant’s submissions address what accident-related impairment prevented her from carrying out the essential tasks of her employment during the time-period claimed. This is the test that must be met. Moreover, although Ms. Grinberg’s psychological report renders a psychological diagnosis, it contains very little about the applicant’s employment. For example, the report states that “prior to the accident the applicant did not experience any difficulties with reading reports or completing work activities such as accounting reports. It takes her longer to complete simple tasks.” However, Ms. Grinberg does not discuss the applicant’s occupation in any detail or render an opinion that the applicant is unable to work because of a psychological impairment. Further, the applicant’s self-reports to Ms. Grinberg about her post-accident limitations were inconsistent with her self-reports to Dr. Seon which note that she was not responsible for accounting or reports.

17Third, the applicant’s submissions indicate that she is claiming an IRB until May 23, 2023, however, other than Ms. Grinberg’s report from January 2022, which is unhelpful, there is no medical evidence beyond that time period which establishes that the applicant meets the stricter post-104 test for entitlement to IRBs.

18In contrast, the IE reports of Dr. Seon and Dr. Marchuk address the applicant’s employment in detail. Both reports provide a thorough analysis of the applicant’s occupation and impairments and render an opinion that the applicant does not suffer a substantial inability to work, as a result, of any accident-related psychological or physical impairment. I accept these opinions because the applicant has not submitted sufficient evidence to refute them.

19For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that she has a substantial inability to carry out her pre-accident employment as a result of any accident-related impairment. Nor has she established that she has a complete inability to engage in any employment for which he is suited by education, training, or experience.

20The applicant also alleges that the respondent did not comply with several of its procedural obligations pursuant to the Schedule which I will address next.

Did the respondent comply with its procedural obligations under the Schedule?

21I find that the respondent did not comply with its procedural obligations as its notices suspending and terminating the applicant’s IRB were deficient.

22Section 33(1) of the Schedule supports that an applicant shall, within 10 business days, provide the insurer with any information reasonably required to assist the insurer in determining entitlement to a benefit. Section 33(6) states that an insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s.33(1) or (2).

23Section 36(4) of the Schedule indicates that within 10 business days after the insurer receives the application and completed OCF-3 it shall: a) pay the specified benefit; b) give the applicant notice explaining the medical and other reasons why the insurer does not believe the insured is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or c) send a request to the applicant under s.33 (1) or (2).

24Section 36(6) provides that if the insurer fails to comply with subsection (4) or (5) within the applicable time limit, 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, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.

25Section 36 (7) states that if the insurer requires an insured to undergo an examination under section 44, the insurer shall, within 10 days after receiving the report of the examination, (a) give a copy of the report to the applicant and to the person who completed the OCF-3 submitted with the application; and (b) provide the applicant with a notice indicating the amount, if any, that the insurer agrees to pay in respect of the specified benefit, the amount, if any, the insurer refuses to pay in respect of the specified benefit and the medical and any other reasons for the insurer’s decision.

26The applicant submits that the respondent did not comply with its procedural obligations in the following ways:

a) It did not respond to the OCF-3 within 10 days as per s. 36(4) and consequently must pay the benefit pursuant to s.36(6) of the Schedule.

b) The s. 33 request was invalid because the letter requesting the records was vague and unclear.

c) The letter suspending the applicant’s IRBs was deficient because it contained factually incorrect information.

d) The respondent’s letter denying the applicant’s IRB was deficient because it did not include a termination date.

27The respondent submits that it did respond to the OCF-3 within 10 days. It maintains that although the OCF-3 was dated January 7, 2020, it was not received by the respondent until January 24, 2020. It responded to the OCF-3 on January 30, 2020, which was within 10 days.

28As a starting point, I find the respondent responded to the OCF-3 within 10 days because although the OCF-3 was dated January 7, 2020, the OCF-3 relied on by the respondent had a fax transmission date of January 24, 2020. As a result, I find that the OCF-3 was received on January 24, 2020, thus, the respondent complied with s.36 (7) of the Schedule.

29Overall, I agree with the applicant that the various correspondence sent by the respondent in response to the OCF-3 was vague, unclear and contained some errors and deficiencies. The following are some examples.

i. In its letter dated January 30, 2020, the respondent acknowledged receipt of the OCF-3 and requested the following documents to calculate the IRB: employer’s confirmation of employment form; T1 personal tax return and Notice of Assessment (NOA) and T2 corporate tax return and NOA. The notice informed the applicant that the information was being requested pursuant to s. 33 of the Schedule and provided a deadline of February 14, 2020, to comply.

ii. In its letter dated February 18, 2020, the respondent advised the applicant that her IRBs were being suspended because she failed to comply with its s. 33 request by February 4, 2020. The evidence shows that this error continued in subsequent letters.

iii. Following receipt of the IE reports the respondent sent the applicant a letter dated August 25, 2021, advising her that her IRB was being denied based on the results of the IE reports. The letter proceeded to provide a summary of the IE assessors’ findings, however, did not provide a termination date for the denial of the applicant’s IRB.

30I agree with the applicant that the s.33 request was unclear in that the respondent did not specify the years or the time period that it was requesting the applicant’s personal and corporate tax returns. The applicant submitted the employer’s confirmation form but not the tax returns. I find the applicant had a valid explanation for not providing the balance of the requested records because the respondent’s s.33 request was vague and unclear.

31I find the respondent’s suspension of the applicant’s IRB improper because a) as noted above, its initial request was vague and unclear and as a result the applicant had a reasonable explanation for non-compliance; and b) its suspension letter contained factually incorrect information about the deadline missed. The applicant did not receive a proper request for documentation until PWC sent her a letter dated November 2, 2021, requesting a detailed list of various income tax records, financial and business records. I find this letter was clear as far as setting out what documentation was required and the time period the records were being requested for.

32I also find the respondent’s notice denying the applicant’s entitlement to the benefit deficient because it did not comply with s. 36(7) (b) and provide the amount that it refused to pay or a termination date. I find the respondent did not cure its deficient notice until February 8, 2024, when it advised the applicant of its calculation of the quantum of IRBs and advised her that the stoppage date was August 25, 2021.

33Although I acknowledge that s. 33 of the Schedule does not prescribe the requirements of the notice, I find the case law is well established that a letter from an insurer must be clear and free of ambiguity. The letter should be so easy to follow that an unsophisticated person would understand what is being requested, their rights and obligations, and the potential repercussions for not complying. I find that the s. 33 notice and subsequent correspondence did not contain enough information for the applicant to comply or understand important information such as the date the benefit was being terminated. Further, what followed was a series of correspondence which did not properly explain the status of the applicant’s claim for IRBs. For these reasons, I find the respondent must pay for the IRB until it issued a notice which complies with the Schedule, which in this case is February 8, 2024. However, I am unable to order the respondent to pay the applicant an IRB beyond May 14, 2023, because the accounting report of S&T only calculated the quantum of the applicant’s IRB up until that date, which I will discuss now.

What is the appropriate quantum of IRBs payable?

34I find the applicant is entitled to payment of an IRB in the amount of $9.783.83, in accordance with the calculations of the accounting report of S & T.

35Section 4(3) of the Schedule states that a self-employed person’s weekly income at the time of the accident is the amount that would be 1/52 of the amount of the person’s income for the last completed taxation year. Section 4(4) provides the calculation for post-accident self-employment losses. Section 7(2) of the Schedule sets out the mathematical formula for how IRBs are to be calculated including what may be deducted from IRB payments for self-employed individuals.

36The applicant relies on the accounting report of S & T dated June 14, 2023, which calculated the quantum of IRBs the applicant is entitled to (for the period of June 22, 2019, to May 14, 2023) in the amount of $9,783.83 which includes interest payable under the Schedule. S & T relied on the applicant’s personal and corporate tax returns from 2018 to the date of the report, and accounted for losses from self-employment and deducted any post-accident income.

37The respondent relies on the accounting report of PWC dated November 28, 2023, which calculated the applicant’s IRB entitlement to be $907.19, for the time period of November 1, 2020, to August 25, 2021. No explanation was provided for why the applicant’s IRB were only calculated for this time period. The respondent submits that PWC highlighted a number of errors in S &T’s calculation of the applicant’s entitlement to IRBs.

38I accept the amounts calculated by S &T for the quantum of IRBs payable for the time period noted above because it is the only accounting report before me which I can assign any weight. On its face it appears that S&T calculated the applicant’s IRB entitlement pursuant to ss. 4 and 7 of the Schedule. Further, as already highlighted above, I assign the report of PWC and the respondent’s submissions about it little weight because the report was first served on the applicant after she filed her submissions for this hearing. The applicant’s reply submissions were due 7 days after the respondent’s submissions. In my view, this was not enough time for the applicant to adequately respond to the report of PWC.

39Consequently, I accept the amounts calculated by S & T and find the applicant is entitled to payment of an IRB in the amount of $9,783.83, inclusive of interest from June 22, 2019, to May 14, 2023, because the respondent’s correspondence suspending and terminating the benefit were deficient. However, I do not have any evidence before me to order ongoing payment of the applicant’s IRB because the report of S &T only calculated the benefit until May 14, 2023.

Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments, in an OCF-18 submitted March 29, 2022?

40I find the applicant has not established that the OCF-18 for a neurological assessment is reasonable and necessary as a result of any accident-related impairment.

41Section 25 (5) of the Schedule provides that an insurer shall pay reasonable fees charged for preparing an examination expense and places a cap of $2,000 per each assessment excluding HST. The case law supports that there needs to be a link between the assessment being sought and an accident-related impairment.

42The OCF-18 dated March 17, 2022, was authored by Dr. Nikols, chiropractor and the goal was to determine whether the applicant has a neurological dysfunction as a result of the accident in order to make treatment recommendations. Under the additional comments section, the doctor refers to Ms. Grinberg’s report which notes the applicant’s complaints of headaches, poor sleep, pain symptoms and cognitive complaints. The applicant also relies on a few entries in the family doctor’s CNRs: On October 14, 2021, she reported dizziness associated with a migraine; on March 18, 2022, she reported getting more frequent episodes of headaches with nausea and problems with light; and finally, on June 29, 2023, she complained of migraines once a week and her family doctor referred her to a neurologist.

43The respondent denied the OCF-18 on the basis that there was no evidence of an accident-related neurological impairment. It relies on the IE of Dr. Moddel, neurologist dated February 10, 2023, who after conducting a physical examination determined that there was no evidence of an accident-related neurological impairment. I prefer the opinion of Dr. Moddel for the following reasons.

44I find the CNRs of the applicant’s family doctor do not link the applicant’s complaints of migraines to the accident. Further, on the last visit on June 29, 2023, the CNR notes that the family doctor conducted a neurological examination which was normal. I find the normal neurological examination of the family doctor consistent with the opinion of Dr. Moddel.

45Dr. Moddel’s report notes that the doctor conducted a physical examination and determined that the applicant’s headaches are tension-vascular in nature and that her neck, shoulder and back pain were muscular in nature. Further, the doctor’s examination of the head and neck revealed that she had normal neck movements with no evidence of radicular pain. The rest of the physical examination was normal, and the doctor found no evidence of an accident-related neurological impairment.

46The applicant submits that Dr. Moddel’s IE was flawed because the doctor did not do any testing. I find the report supports that the doctor did a thorough physical examination to investigate the applicant’s complaints. Further, the applicant’s submissions were unclear about what testing Dr. Moddel should have done. In addition, the applicant has not submitted sufficient evidence to refute Dr. Moddel’s opinion. For these reasons, I find the applicant has not met her onus in proving on a balance of probabilities that the OCF-18 for the neurological assessment is reasonable and necessary.

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

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to payment of interest on IRBs as calculated in the report of S & T because I find the benefit is overdue due to the respondent’s deficient notices. The applicant is not entitled to interest on the OCF-18 for a neurological assessment because I have not determined that the benefit is overdue.

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

48The applicant sought an award under s. 10 of 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

49The applicant submits the respondent has unreasonably withheld and delayed the calculation and payment of her IRB, despite her submission of various financial documents and responses to numerous questions regarding her pre- and post-accident employment. Further, the respondent failed to respond to the accounting report of S & T or provide notice with any reasons as to why it has failed to calculate the applicant’s IRBs. The applicant argues that the respondent has a duty to adjust the claim on its merits at the time of the submission of documentation. The applicant asserts that she is a vulnerable person who relies on the respondent to adjust her claim in good faith. This requires the respondent to investigate, assess, and resolve claims in a fair, prompt, and good faith manner.

50The respondent maintains that the applicant is responsible for any delay because she was noncompliant with its request for tax records and financial information needed to calculate her IRB from the beginning. It submits that she has ignored numerous requests between November 2, 2021, and March 16, 2022, made by both it and PWC for various records needed to calculate her IRB. Finally, there were delays in having her assessed by the IE assessors because the applicant cancelled two and was a no show for one appointment.

51I find the applicant is not entitled to an award because although I find that some of the respondent’s correspondence and denials were deficient, I find that the applicant is partly responsible for the respondent’s delay in calculating her entitlement to an IRB. For example, a letter from PWC to the applicant dated November 2, 2021, set out in clear and unambiguous language the income tax records and financial documentation required to calculate her IRB. Further, the applicant did not respond to PWC, or the respondent’s follow up correspondence for these records. In fact, as of the date of the case conference in May 2023, there were numerous financial records that remained outstanding that were required to calculate the applicant’s IRB. Emails between PWC and the applicant’s legal representative support that in November 2023, PWC still had questions that needed to be answered about the applicant’s post-accident employment which was not straightforward. For these reasons, I find the applicant has not established that the respondent unreasonably withheld or delayed the calculation of her IRB. Consequently, the applicant is not entitled to an award.

Is the applicant entitled to costs pursuant to Rule 19?

52The applicant is entitled to costs in the amount of $500.00 for the following reasons.

53Rule 19.1 provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.2 provides that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

54The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award and is an exceptional remedy. Rule 19.6 provides that the amount of costs shall not exceed $1000 for each full day of attendance at a motion, case conference or hearing.

55In her reply submissions, the applicant requested an order for costs in the amount of $5,000.00. The applicant submits that the respondent acted unreasonably, frivolously and in bad faith in that it fabricated untruths in its submissions, failed to properly serve evidence by the deadline and failed to comply with a production order of this Tribunal.

56As a starting point, I have no authority to order costs above the maximum amount provided for in Rule 19.6, and the Rules do not address costs for written hearings. I find that because the applicant disagrees with some of the respondent’s submissions is not worthy of an order for costs. In addition, I find the applicant’s submission that the respondent failed to comply with a production order unsubstantiated as it is unclear what records the respondent failed to provide. However, I agree with the applicant that the respondent’s service of the PWC report after her written submissions were due was unreasonable. Further, the fact that no explanation was provided by the respondent for the delay when the report predated service by two months to be an additional aggravating factor.

57I find the respondent is a sophisticated party and at the very least should have acknowledged that the PWC report was served on the applicant for the first time after her written submissions were due. Moreover, the respondent should have provided an explanation for the delay in serving the applicant with the report. Consequently, I order the respondent to pay costs in the amount of $500.00. I find this amount proportionate for its conduct.

ORDER

58For all the above-noted reasons, I make the following order: