Jiang v. Co-operators General Insurance Company, 2024 CanLII 126309

Licence Appeal Tribunal

Citation: Jiang v The Co-operators General Insurance Company, 2024 ONLAT 21-003797/AABS

Licence Appeal Tribunal File Number: 21-003797/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:

Zihua Jiang

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Zihua Jiang, Applicant Zoe Meditskos, Paralegal Aline Avanessy, Counsel

For the Respondent: Bonnie Xie, Claims Representative Jamie R Pollack, Counsel Serena Gohal, Counsel

Interpreter: Yajun Wang (Mandarin)

HEARD: by Videoconference: October 7 to 11, 2024

OVERVIEW

1Zihua Jiang, the applicant, was involved in an automobile accident on June 9, 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, Co-operators General Insurance Company, insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant filed her application with the Tribunal on March 29, 2021. The Tribunal conducted a written hearing on the issue of whether the applicant was involved in an accident and issued a decision dated February 5, 2023. The Tribunal concluded that the incident of June 9, 2019 was not an “accident” as defined in section 3(1) of the Schedule.

3The applicant alleges that she and her husband argued as she drove the car. He grabbed and pulled her hair and smashed her head into the driver’s side window. The applicant further alleges that she subsequently veered to the right to avoid other cars and mounted a curb at which point she sustained an additional head injury. The Tribunal found that the intervening event of the assault was the dominant feature of this incident and the direct cause of the applicant’s alleged injuries.

4The applicant appealed the Tribunal’s decision. The Divisional Court found, in Jiang v. The Co-operators General Insurance Company, 2024 ONSC 1225, that the Tribunal erred in finding that the applicant was not in an accident because the intervening act of the alleged assault did not break the chain of causation:

I would allow the appeal to the extent that the appellant claims entitlement to accident benefits sustained as a result of her loss of control of her vehicle following the assault. The issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing.

5The Court returned this matter to the Tribunal for a new hearing to determine if the applicant is entitled to accident benefits for any alleged injuries sustained after the assault when she drove and lost control of her vehicle.

PRELIMINARY ISSUEs

Motion to issue a summons

6On September 25, 2024, the Tribunal issued an order that approved all but one of the applicant’s requests for summons. The summons request for Kreshini Moodley, adjuster, was denied because this witness was not noted in the Case Conference order, nor in the applicant’s witness list. The Tribunal found that the applicant gave insufficient notice of this witness being called and that it was procedurally unfair to now add this witness so late in the proceeding.

7On September 27, 2024, the applicant filed a Notice of Motion requesting the issuance of a summons for the adjuster, which did not allow for service of the summons no later than 10 days before the hearing as required by Rule 8.2 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”). At the hearing, the applicant argued that the adjuster is a crucial witness in regard to the issue of the award and that it would be unfair to not allow this testimony. She also pointed out that the respondent has had ample notice of the issue of the award, and as such, there was a reasonable inference to be made that the adjuster would be testifying. The applicant further argued that the adjuster is the respondent’s witness and that she made no previous effort to summons the adjuster because there was no point in double summonsing this witness.

8The respondent submitted that it never indicated the adjuster would be called as a witness and issuing a last minute summons is procedurally unfair due to the lack of notice that this witness would be testifying. The respondent also noted that it has always maintained the position that no accident took place. This is already in the log notes and there is nothing the adjuster can add to this. Consequently, the respondent submits that the adjuster’s testimony is irrelevant.

9Neither party asked for the adjuster to be a witness at the case conference. In my view, this was a clear signal that the adjuster would not be testifying. As such, there was no risk that both parties would be summonsing the same witness, nor was there an inference that the adjuster would be testifying. I further note that there is no ownership in witnesses and it was always open to the applicant to make the request for a summons in a more timely fashion and in compliance with the timelines for service set out in the Rules. For these reasons, I denied the applicant’s request to summons the adjuster.

Res judicata

10The following preliminary issue was identified at the case conference:

Does the doctrine of res judicata apply to the preliminary issue of whether the applicant’s injuries arose from mounting the curb on June 9, 2019, or rather from her assault?

11At the hearing, both parties submitted that res judicata does not apply. I agree. The three-part test for res judicata is well-established: the same question must have been decided, the decision at issue was final, and the parties to the decision are the same, see Toronto v. CUPE Local 79, 2003 SCC 63, at para. 23. In this instance, the issue of whether an accident occurred after the assault has not been decided. Consequently, I find that res judicata does not apply.

Did an accident occur as defined in 3(1) of the Schedule?

12I find that an accident occurred as defined in 3(1) of the Schedule.

133(1) of the Schedule defines accident as follows:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

14In Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA), the Ontario Court of Appeal defined the two part “purpose” and “causation” test to be used when determining if an incident is an accident.:

Purpose test:

• Did the incident arise out of the ordinary and well-known activities to which automobiles are put?

Causation test:

• Did the use and operation of the automobile directly cause the impairment?
• Was there an intervening act or acts that resulted in injuries that cannot be said to be part of the “ordinary course of use or operation of the automobile?”
• Is the use or operation of the automobile the dominant feature that caused the injury?

15The applicant testified that she was driving while being assaulted by her husband, and that she saw cars approaching. She veered to the right to avoid those cars and her vehicle hit and then mounted a curb, and subsequently stopped in a grassy area. According to the applicant, she hit her head in the car as a result of mounting the curb, and this caused a concussion that compounded the effects of the previous concussion she received from the assault. She also argues that she was traumatized by this event and sustained psychological injuries. The applicant submits that she has impairments arising from her physical and psychological injuries that were caused during the use of her car that are unrelated to the assault and that all these elements meet the definition of an accident.

16The respondent submits there is no evidence to support that the applicant’s version of what took place. In other words, the respondent disputes that the applicant’s car veered to the right, mounted the curb, and stopped in the grassy area. The respondent further argues that even if these events did take place, there is insufficient medical evidence to establish that she sustained any impairments as a result of this incident. Therefore, this incident meet neither the purpose or causation tests.

17I disagree with the respondent’s position in regard to there being no evidence confirming that the events described by the applicant took place. The day after the accident, on June 10, 2019, the applicant sought medical attention at the emergency room of Muskoka Algonquin Healthcare, a hospital in Huntsville. The intake form states that she “was struck in the head/hair pulled/head thrown against car window yesterday…” This is evidence of her reporting the assault in the car to the hospital, an incident that immediately preceded the accident. The same form also notes that she vomited two times on the day of the accident. This is consistent with her testimony in regard to how she exited the vehicle after it stopped in the grassy area and vomited.

18The Triage Notes dated June 21, 2019 from the Emergency Department of Mackenzie Health, a hospital in Richmond Hill, documents that the applicant was in a “motor vehicle collision.” This appears to be the earliest mention of a car accident taking place.

19The applicant did not apply for accident benefits until a year after the accident. The respondent points to this delay as a clear indication that the incident described by the applicant did not occur. I note that at the Examination Under Oath (EUO), on October 9, 2020, the applicant explained that she thought car insurance only covered vehicle repairs. It was only after speaking with friends in June of 2020 that she learned her car insurance also covers medical rehabilitation. She applied as soon as she learned this because, according to the applicant, she had not recovered from her accident related injuries and decided that she should seek rehabilitative benefits from the insurer. I agree that waiting one year to file an accident benefit claim is somewhat irregular. However, in my view, engaging in uncommon behaviour is not a clear indication that the applicant lacks credibility. Consequently, I accept the applicant’s explanation as there is no substantive basis to doubt her.

20The applicant has been asked numerous of questions regarding the events of June 9, 2019, at the EUO and at the hearing. In both instances she provided a consistent account of the events that lead to the accident. More specifically, she described being assaulted while driving her car, veering right, her vehicle mounting a curb, and stopping in a grassy area.

21The respondent raised an inconsistency regarding the number of times she hit her head. According to the respondent, in the EUO the applicant states that she hit her head three times in the car, and in an affidavit dated December 17, 2021 she says that she hit her head five times. However, a careful reading of the EUO, at page 18, lines 18-22, shows that the applicant confirms hitting her head five times, three times on the window and twice on the roof. In any event, I find the contemporaneous accounts given by the applicant at two hospitals and the applicant’s consistent retelling of the details of the accident over a five year period to be persuasive. For these reasons I find, on a balance of probabilities, that the applicant has given a credible account of the events that took place on June 9, 2019. I further find that the incident meets the purpose test because it took place while the applicant was driving her car, and therefore, arose out of the ordinary use of an automobile.

Did the applicant sustain a concussion after the assault?

22Both parties have submitted accident reconstruction reports which comment on the likelihood of the applicant’s head striking the interior of the car as it mounted the curb. The respondent’s Biomechanics Report dated November 30, 2021, by Sam Kodsi, engineer, and Karla Cassidy, engineer, concluded that there was a one percent chance of a concussion occurring. However, this estimate is based on the assumption that her vehicle was travelling 30 to 37 km/h. This is about half the speed reported by the applicant, who said that she was travelling 60 km/h, the posted speed limit, at the time of the accident. At the hearing, Ms. Cassidy testified that a lower speed was considered because there was no damage to the tires. The inference being that mounting the curb at the reported speed of 60 km/h would have caused tire damage. This is consistent with the respondent’s Report of Motor Vehicle Incident by Neil Bigelow, engineer, also dated November 30, 2020, where the lack of tire damage is given as a reason for estimating a lower speed at the time of the accident.

23Mr. Bigelow reviewed the EUO and assumed there was no tire damage based on the applicant’s statement that her tires “were good” after the accident. In my view, this evidence is not specific enough to meaningfully understand the condition of her tires post-accident. None of the engineers explain what particular type of tire damage they expect to see if the accident occurred at 60 km/h. For example, did the engineers expect to see a puncture, cuts to the tire, curb rash, cracks, scuffs, or perhaps something else? The applicant was not asked if any specific type of damage occurred to her tires. It is also unclear how well the applicant inspected her tires. Did she take the time needed to carefully inspect each tire for damage or did she just casually glance at the tires? Given this lack of detail, I find that the assumption that the applicant was travelling 30 to 37 km/h is not well founded and for this reason I give little weight to these reports.

24The applicant relies on the Biomechanical Assessment of a Single Motor Vehicle Collision report, dated July 9, 2024 by Jason Young, engineer. He concluded that the accelerations from the applicant’s impacts into the rigid side of the roof would have been capable of causing a concussion. To be clear, Mr. Young does not conclude that the applicant sustained a concussion. Instead, he finds that the mechanics of the accident make it possible for the applicant to have sustained a concussion.

25When the applicant sought medical attention from Muskoka Algonquin Healthcare on the day after the accident, she attributed her head injuries to the assault. There is no indication in these notes that she also hit her head on the interior of the car after the assault.

26In her statement to the Ontario Disability Support Program (ODSP), dated September 3, 2019, the applicant attributes her post concussion syndrome to the assault and does not mention the car accident. At the hearing, the applicant explained that a friend assisted her with writing the statement. She further testified that she mentioned going over the curb and the frustration that she felt in dealing with the insurance company, but the friend decided to leave these details out because too many details would be distracting. I do not accept this explanation for two reasons. Firstly, the applicant had not yet contacted the insurance company at the time this statement was written. Consequently, the friend could not have decided to edit out the details of events which had not yet occurred. Secondly, the statement to ODSP is quite detailed in regard to listing the applicant’s functional impairments. The decision to leave out crucial information about a serious injury is inconsistent with the nature of the statement, especially when it was clearly in her interest to notify ODSP that she sustained a further concussion from a car accident.

27In both instances, the applicant fails to mention hitting her head in the car after the assault. In my view, this is inconsistent with the actions of someone who believes that they sustained a head injury in a motor vehicle accident. Thus, Mr. Young’s report confirms the possibility of the applicant hitting her head in the car. However, I give weight to the fact that the applicant did not discuss the head injury in two instances that are contemporaneous to the accident. Consequently, I find that she did not hit her head inside the car after the assault.

28I further find that even if the applicant hit her head against the car during the accident, which she did not, she still has not put forward any medical evidence that confirms she sustained a concussion or a related impairment. She relies on Mr. Young’s evidence that a subsequent concussion from the accident would worsen the effect of a previous concussion from the assault. However, Mr. Young is not a doctor. He is not qualified to diagnose the applicant with a concussion or provide medical opinions on concussions. As such, the applicant has not pointed to any diagnosis or medical evidence that comments on whether she sustained a concussion after the assault.

29In my view, it is not possible to understand how an undiagnosed head injury effects the applicant’s ability to function. Consequently, I find that even if she hit her head inside the car after the assault, she still has not established, on a balance of probabilities, that she has an accident related impairment because she led no medical evidence that shows she sustained a concussion after the assault.

Did the applicant sustain a psychological injury after the vehicle mounted the curb?

30The applicant testified that she heard a loud bang when her car mounted the curb. She thought her car exploded and that she might have died. When the car stopped she realized she was still alive, but felt nauseous. She exited the car and vomited.

31The applicant relies on the Psychological Assessment Report, dated November 27, 2020, by Dr. Sharleen McDowall, psychologist. She diagnosed the applicant with Major Depressive Disorder with Anxious Distress, Somatic Symptom Disorder, predominated with pain, and Specific Phobia (Travel). The report also describes the resulting impairments which include her somatic symptoms leading to sleep disturbances, low energy, becoming emotional and overly sensitive, being socially withdrawn, sadness, loss of motivation, and excessive worry.

32The respondent argues that Dr. McDowall’s report should be given no weight because the Tribunal previously assigned no weight to her reports in other hearings. I disagree. Dr. McDowall is a practicing psychologist and her report must be considered on its own merit and in the context of the other medical evidence at this proceeding. It cannot be rejected outright, as suggested by the respondent, merely because Tribunal members in other hearings, with different facts and different evidence, decided to give little weight to her other reports.

33I also note that the respondent maintains its position that the applicant was not in an accident and did not ask her to attend a psychological assessment under s. 44 of the Schedule.

34Dr. McDowall’s report indicates that the applicant denied having any significant history of psychiatric issues before the accident. This is incorrect. The Mental Health Consultation Note of Dr. Ivy Quian Lee, psychiatrist, dated August 26, 2020 states that when the applicant was a teenager she was hearing voices at night. These auditory hallucinations stopped, but periodically recur. The most recent recurrence at that time was in the Spring of 2020. Dr. Lee’s diagnostic impression of the applicant was that she may have an anxiety disorder NOS, query illness anxiety disorder, query paranoid personality disorder, and query psychotic disorder NOS (rule out schizophrenia).

35Dr. Lee also documents a long history of insomnia. This is consistent with the report of Dr. Jay Sethi, psychiatrist, arising out of a pre-accident examination that took place on June 6, 2018. He diagnoses the applicant with an adjustment disorder with anxiety and also notes that the applicant suffers from insomnia.

36Dr. McDowall made her assessment without knowing about the applicant’s pre-existing psychological history. Consequently, she attributed the accident as being the cause of the applicant’s psychological disorders without having crucial information about the applicant’s medical history. For this reason, I give little weight to the findings made in regard to the accident causing the applicant’s psychological impairments. Even so, the report is still helpful because it provides a description of the applicant’s post-accident psychological symptoms which increased in severity compared to the pre-accident psychological symptoms noted in other pre-accident medical reports.

37For example, the applicant described herself to Dr. McDowall as becoming noticeably more irritable and easily annoyed, especially by students at the school where she taught Chinese. She became short-tempered and had gotten into arguments with strangers. This is consistent with her behaviour at the hearing. She appeared stressed and was combative with respondent’s counsel. At times she challenged him on why he was asking certain questions, and refused to answer questions if she did not understand the reason the question was being asked. This irritable and combative behaviour is not noted in Dr. Sethi’s pre-accident report. In my view, this indicates that her temperament changed post-accident.

38The applicant also reported to Dr. McDowall that she was no longer able to sleep without taking medications. In the year before the accident, she reported to Dr. Sethi that she took Melatonin only as needed.

39It should also be noted that the applicant denied having symptoms of psychosis to Dr. Sethi. Post-accident, she told Dr. Lee that she had again begun to hear voices. This also appears to be an indication of worsening post-accident psychological functioning.

40The increased severity of the applicant’s post-accident psychological symptoms was also noted in the testimony of Dr. Xu Xia Chen, physician. She has treated the applicant as a family doctor since September, 2018. Her initial impression of the applicant was that she is a “regular patient” with a higher-than-average level of anxiety. In her view, the accident made the applicant’s psychological symptoms worse. In particular, she testified that the applicant’s pre-existing anxiety was exacerbated by these events.

41The medical evidence shows that the accident exacerbated the applicant’s pre-existing psychological conditions. In particular, her pre-existing impairments of poor sleep and anxiety became worse after the sudden and frightening experience of mounting the curb and believing her car exploded and that she may have died. The preceding assault was also traumatizing but, in my view, cannot be characterized as an intervening event, nor a dominant feature that caused an increase in the severity of the applicant’s psychological injuries. This is because there is no medical evidence before me which shows that the assault somehow cancels or overrides the trauma caused by the applicant perceiving the incident as a near death experience. Consequently, I find, on a balance of probabilities, that the applicant sustained psychological impairments while operating a motor vehicle and that the operation of the automobile is the dominant feature that caused her psychological injuries. For these reasons, I also find that the applicant has established that the incident meets the causation test.

42Having found that the incident meets the requirements of the purpose and causation tests, I also find that the incident is an accident pursuant to s. 3(1) of the Schedule.

ISSUES

43As a result of my finding that the applicant sustained an impairment in an accident, the parties agree that the substantive issues in dispute are as follows:

I. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

II. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from June 16, 2019 to date and on-going?

III. Is the applicant entitled to $5,409.66 for Physiotherapy Services, proposed by Markham Health Care Clinic in a treatment plan/OCF-18 (“plan”) dated July 15, 2020?

IV. Is the applicant entitled to $1,829.25 for Other Goods and Services, proposed by Markham Health Care Clinic in a treatment plan dated July 21, 2020?

V. Is the applicant entitled to $2,082.85 for Psychological Services, proposed by Markham Health Care Clinic in a treatment plan dated August 8, 2020?

VI. Is the applicant entitled to the treatment plans proposed by Myo Health and Wellness, as follows:

1. $2,452.71 for Psychological Services, in a treatment plan dated November 19, 2020; and

2. $1,927.33 for Other Goods and Services, in a treatment plan dated November 19, 2020?

3. $3,715.69 for Occupational Therapy Services, in a treatment plan dated November 19, 2020?

4. $3,112.00 for Chiropractic Services, in a treatment plan dated December 14, 2020?

5. $2,793.27 for Physiotherapy Services, in a treatment plan dated December 1, 2020?

6. $840.20 for Other Goods and Services, in a treatment plan dated December 22, 2020?

7. $2,100.00 for Other Goods and Services, in a treatment plan dated December 22, 2020?

VII. Is the applicant entitled to $1,242.68 for Medicine and expenses, submitted on a claim form (OCF-6) dated March 10, 2021?

VIII. Is the applicant entitled to attendant care benefits in the amount of $10,653.27 per month from June 9, 2019 to date and on-going?

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

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

RESULT

44The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule.

45The applicant is not entitled to an income replacement benefit.

46The applicant is not entitled to the treatment plans.

47The applicant is not entitled to the expense claim form.

48The applicant is not entitled to attendant care.

49The applicant is not entitled to interest.

50The respondent is not liable to pay an award.

ANALYSIS

Minor Injury Guideline

51Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

52An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

53Neither party made submissions on this issue.

54I have found that the applicant’s documented pre-existing psychological disorders were exacerbated by the accident. In my view, this warrants removal from the MIG because the injury is psychological in nature.

Income Replacement Benefit (IRB)

55To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

56The applicant submits that she is entitled to receive the IRB because she was employed at the time of the accident and has been unable to work since the accident. In particular, she submitted that her accident-related depression and anxiety are impediments to employment. The applicant further submitted that the respondent is required to pay the IRB until it has a medical opinion on whether she suffers a substantial inability to work.

57The respondent submits that there is no expert report that supports the applicant’s self reported position that she is unable to work. The respondent also points to the ODSP statement in which the applicant does not blame the accident for being unable to work, but rather, states that problems with her uterus stopped her from engaging in any work in the previous three years. The respondent further argues that there is evidence which contradicts the applicant’s claim that she has not worked since the accident. In particular, the clinical notes and records of Cover Health from April 22, 2020 document the applicant working as a caregiver in a resident home. The fourth point raised by the respondent is that the applicant has unexplained income in her 2020 tax return and that she has not disclosed her more recent tax returns despite being ordered to do so by the Tribunal in the case conference order. According to the respondent, it is open for the Tribunal to make a negative inference and find that those undisclosed income tax returns would show other incomes being earned by the applicant. For all these reasons, the respondent submits that the applicant is not entitled to an IRB.

58The applicant’s submission seems to be that she cannot work because of her accident related injuries and is automatically entitled to an IRB until the respondent obtains a medical report that says otherwise. I disagree. Entitlement requires the applicant to establish that she was working prior to the accident, which is not disputed, and to also establish that the accident caused her to suffer a substantial inability to perform the essential tasks of her pre-accident employment. The applicant has not done this. She made no submissions on what the essential tasks of her employment are, nor did she refer to any evidence which shows that her accident-related injuries caused a substantial inability to perform those essential tasks. The applicant has also not made any submissions on the extent to which she is unable to perform the essential tasks of her employment. On this basis, I find that she is not entitled to an IRB.

59To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

60The applicant does not argue that the treatment plans are reasonable and necessary. Instead, she points out that the insurer did not provide medical reasons for the refusal of the treatment plans. Consequently, she submits that she is entitled to payment for all the treatment plans in dispute as section 38 of the Schedule applies.

61The respondent maintains its position that the applicant was not in an accident, and therefore, not entitled to medical rehabilitation benefits.

62I agree with the applicant that the denial letters of the respondent do not provide medical reasons for the denials of the treatment plans and that providing medical reasons for the denials is a requirement in section 38(8) of the Schedule. Under these circumstances, section 38(11) of the Schedule applies:

38(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

63Consequently, I find that the respondent must pay for all goods, services, assessments and examinations in the treatment and assessment plans that relate to the period starting on the 11th business day after the day the insurer received the applications.

64Even so, in Aviva General Insurance Company v. Catic, 2022 ONSC 6000, the Divisional Court determined that only incurred expenses are payable under s. 38(11)(2) of the Schedule. The applicant has not provided evidence of incurred expenses related to the denied treatment plans. Consequently, I cannot order payment under 38(11).

65As the hearing has occurred, the applicant may incur the treatment and it is payable if I find that the plans are reasonable and necessary. However, as noted above in paragraph 60, the applicant does not argue that the treatment plans are reasonable and necessary. Therefore, the applicant has provided no basis for me to find that she is entitled to these treatment plans.

Expense claim

66Neither party made submissions on the expense claim in the amount of $1,242.68. As such, there is no basis to find the applicant is entitled to payment for this expense claim.

Attendant care benefit (ACB)

67Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

68The applicant submits that she is entitled to the payment of attendant care because the respondent did not provide medical reasons for the denial of the ACB, which is contrary to section 42(3) of the Schedule.

69The respondent notes that the applicant’s Form 1 is not in evidence and that an assessment of the applicant’s attendant care needs is not possible without this document. The respondent also notes that there is no evidence showing that she needs attendant care, nor is there any evidence that the applicant incurred attendant care expenses. Consequently, the respondent submits that the applicant is not eligible to receive attendant care, nor is she entitled to payment for attendant care expenses.

70I agree with the respondent. Section 19(2) requires the monthly amount of reasonable and necessary attendant care benefits to be calculated in accordance with the Form 1. The absence of a Form 1 does not permit the Tribunal to make any calculations on the amount of this benefit. For this reason, I find that the applicant cannot establish her eligibility to the ACB because there is no way to calculate the monthly benefit.

71Additionally, even if a Form 1 was in evidence, the applicant made no submissions on whether attendant care is reasonable and necessary. In my view, the reasonable and necessary test must be addressed before the applicant can be found to be eligible for an ACB. The applicant has not done this, and for this reason as well, I find that she is not eligible to receive attendant care.

72As the applicant has been found to not be eligible for attendant care, it follows that she is not entitled to receive payment for the ACB.

Interest

73Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, the applicant is not entitled to interest.

Award

74The 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. “Unreasonable” is defined in Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 and constitutes behaviour by an insurer in withholding or delaying payments that can be characterized as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

75The applicant submits that the respondent breached its duty of good faith to her, ignored the consumer protection context of the Schedule, and unreasonably withheld payment. She makes the following points:

i. five years have passed since the accident and the respondent still has not properly opened and adjusted her claims for benefits.

ii. The respondent had substantial medical documents on the applicant’s physical and psychological injuries, yet made no efforts to obtain s. 44 reports and also limited its assessment of benefits to her head injury and closed its mind to the possibility of her sustaining a psychological injury and thereby improperly limited the scope under which a claim could be opened.

iii. The respondent did not comply with section 38(8) of the Schedule by not providing medical reasons for its denial of treatment plans. The requirement of providing clear medical reasons must be met in order to meaningfully uphold the Schedule’s consumer protection role.

76The respondent notes that the Tribunal previously found that the applicant was not in an accident. The matter proceeded to Divisional Court where the Court upheld the Tribunal’s decision that the assault portion of the incident was not an accident. In this light, the respondent submits that it is not possible to conclude that the respondent unreasonably withheld benefits.

77I agree that it took a lengthy period of time to determine that an accident took place. However, it is not clear to me that the respondent is to blame for the passage of time or that it acted unreasonably. The applicant was in an accident that she did not report to the police. She also did not report it to the insurer until a year after the accident took place. Given these circumstances, it was reasonable for the insurer to investigate to determine if an accident took place. After conducting an EUO and commissioning engineering reports, the insurer concluded that no accident had taken place within the meaning of section 3(1) of the Schedule. I disagree with this conclusion, however, my disagreement does not mean that the insurer arrived at its conclusion arbitrarily and or that it did not exercise its duty of good faith to the applicant.

78I also agree with the respondent’s point that the Tribunal’s initial finding at the previous written hearing bolstered its position that an accident had not taken place. This is significant insofar as how they viewed the medical evidence prior to this current hearing. It is not correct to say that the respondent ignored the evidence. In its view, there was no accident, and as such, the medical evidence was not a relevant factor in adjusting the claim. Likewise, the requirement to provide medical reasons under s. 38(8) was not engaged because medical reasons to deny benefits are not needed if an accident has not taken place and the applicant would not be entitled to rehabilitative benefits under such circumstances.

79For these reasons I find that the respondent did not unreasonably withhold or delay the payment of benefits in a manner that justifies an award.

ORDER

80I order the following:

i. An accident occurred and the applicant sustained psychological injuries and these injuries are not predominantly minor as defined in s. 3 of the Schedule.

ii. The applicant is not entitled to an income replacement benefit.

iii. The applicant is not entitled to the treatment plans.

iv. The applicant is not entitled to the expense claim form.

v. The applicant is not entitled to attendant care.

vi. The applicant is not entitled to interest.

vii. The respondent is not liable to pay an award.