Anthony Stuifbergen v. TD General Insurance Company, 2024 CanLII 126311

Citation and Parties

Citation: Anthony JJ Stuifbergen vs. TD General Insurance Company, 2024 ONLAT 22-013865/AABS

Licence Appeal Tribunal File Number: 22-013865/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:

Anthony Stuifbergen Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Lucy Lee, Counsel

For the Respondent: Karen Klaiman, Counsel

HEARD: By way of written submissions

OVERVIEW

1Anthony Stuifbergen, the applicant, was involved in an automobile accident on June 10, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2I have been asked to decide the following issues:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $189.08 per week from January 9, 2021, to June 9, 2021?
2. Is the applicant entitled to $2,178.50 for chiropractic services, proposed by Breslau Chiropractic & Wellness in a treatment plan (“OCF-18”) dated March 3, 2023?
3. Is the respondent entitled to a repayment for overpayment of past IRBs from June 19, 2019, to January 8, 2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3After considering both parties’ submissions and all the evidence I find as follows:

1. The applicant has not established entitlement to any of the benefits in dispute, interest, or an award.
2. The respondent is not entitled to repayment of past IRBs paid to the applicant from June 19, 2019, to January 8, 2021.

ANALYSIS

Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $189.08 per week from January 9, 2021, to June 9, 2021?

4The applicant is not entitled to payment of an IRB for the time-period claimed.

5Section 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.

6Prior to the accident, the applicant was employed as a telephone sales specialist with a bank. The essential tasks of the applicant’s employment included ensuring accuracy of customer transactions; support a positive work environment; provide advice to customers, provide broad knowledge on moderately complex financial products and services; and have the full proficiency to serve customers. His job required sitting for prolonged periods, using the computer, and making in and outbound calls using a headset. His job also required typing and prolonged concentration. In the three months prior the accident, the applicant was on short-term disability because of chronic migraines.

7The respondent paid the applicant an IRB in the amount of $400.00 per week from June 19, 2019, to January 8, 2021 and terminated the benefit relying on the insurer examination (“IE”) reports of Dr. Holland, chiropractor, Dr. Cobrin, psychologist, and Dr. Marchuk, physiatrist dated October 1, 2020, and Dr. Yahmad, neurologist, dated December 7, 2020. These assessors determined that the applicant did not have any physical, psychological, or neurological impairments or functional limitations as a result of the accident that would result in a substantial inability to perform the essential tasks of his employment.

8The applicant argues that he is entitled to an IRB from January 9, 2021, to June 9, 2021, in the amount of $189.08 per week because he continued to suffer a substantial inability to perform the essential tasks of his employment as a result of his accident-related impairments. He relies on a disability certificate (OCF-3) completed by Jennifer Harwood, physiotherapist dated July 6, 2020, the clinical notes, and records (“CNRs”) of Dr. Markovic, neurologist, a Manulife form completed by his family doctor supporting that he could only work modified hours, an employer’s absence report and IRB calculation report of Williams and Partner.

9The respondent submits that the applicant has not met his onus in proving entitlement to the benefit for the time period claimed because the medical records relied upon do not establish that he has any ongoing accident-related impairment which would interfere with his ability to perform the essential tasks of his employment. It relies on the above-noted IE reports. The respondent maintains that the applicant has not tendered any persuasive evidence to refute these opinions.

10I find the applicant has not met his onus in proving on a balance of probabilities that he meets the disability test for IRBs for the time-period claimed for the following reasons.

11First, other than the OCF-3 which I will discuss later, the applicant has not submitted any persuasive medical evidence which establishes that he is unable to work because of any accident-related impairment. Dr. Markovic’s consultation note dated April 15, 2020, indicates that the applicant’s headaches had worsened since the accident. I find it unclear if this is the doctor’s opinion or based on the applicant’s self-reports. A consultation note dated November 24, 2020, states that the doctor prescribed Aimovig to address the applicant’s migraines and the applicant reported significant improvement. The applicant also reported that he hoped to go back to work on a gradual basis which was supported by the doctor. In a subsequent consult note dated February 26, 2021, the doctor notes that the applicant was doing well and that the Aimovig had been extremely helpful in reducing his migraines.

12Other than the first consultation note, I find that the last two notes refer to significant improvement and do not discuss the accident at all or specify any impairments that would prevent the applicant from returning to work. Although the applicant was removed from the MIG because of his pre-existing migraines, I find the consultation notes do not establish to what degree the applicant’s migraines were exacerbated by the accident or that this was the reason he was unable to return to work. For these reasons, I have given Dr. Markovic’s consult notes little weight.

13Second, I find the Manulife insurance form completed by the applicant’s family doctor unhelpful in establishing that any accident-related impairment prevented the applicant from returning to work. The doctor recommends modified work and hours; however, the form does not discuss the accident or any impairments arising from it. What I find lacking in this case was the CNRs of the applicant’s family doctor referencing ongoing accident-related impairments which would impact the applicant’s ability to return to work. The only evidence before me which supports that the applicant has a substantial inability to carry out the essential tasks of his employment was the OCF-3 completed by Ms. Harwood. 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.

14Third, while the employer’s attendance forms demonstrate that the applicant worked modified hours from March to June 2021, I find it does not prove that he meets the disability test for entitlement because of any accident-related impairment for the time period claimed.

15Fourth, the applicant’s submissions provide a summary of the medical records and evidence but do not address their relevance or refer to the specific accident-related impairment which has resulted in a substantial inability for the applicant to perform the essential tasks of his employment. This is the test that must be met.

16Finally, in contrast, the reports of the IE assessors address the applicant’s employment in detail, conduct physical examinations and clinical interviews and provide opinions on whether the applicant meets the disability test. These reports provide a thorough analysis of the applicant’s occupation and impairments and render opinions that the applicant does not suffer a substantial inability to perform the essential tasks of his employment, as a result, of any accident-related psychological, physical, or neurological impairment. The applicant pointed out various flaws in these assessments. However, I note that the onus is not on the respondent to disprove entitlement. I accept the opinions of the IE assessors because the applicant has not submitted sufficient evidence or opinions to refute them.

17For the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that he had a substantial inability to carry out the essential tasks of his employment because of any accident-related impairment.

Is the applicant entitled to $2,178.50 for chiropractic services, proposed by Breslau Chiropractic & Wellness in a treatment plan (“OCF-18”) dated March 3, 2023?

18The applicant is not entitled to the OCF-18 in the amount of $2,178.50 for chiropractic treatment recommended by Breslau Chiropractic & Wellness.

19To receive payment for a treatment and assessment plan under s. 14 and 15 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. The case law also establishes that medical treatment is reasonable and necessary if it results in temporary pain relief if it leads to improved function.

20The OCF-18 dated March 3, 2023, was authored by Dr. Brander, chiropractor, and recommended 12 sessions of chiropractic treatment at $112.00 per session at a cost of $1,344.00, $215.00 for a total body assessment, $169.50 for a personal massager and $450.00 for an orthotic device for a total cost of $2,178.50. The goal of the OCF-18 was pain reduction and increase range of motion (“ROM”) to return the applicant to his activities of normal living. An additional comment indicated that the custom foot orthotic was being sought to assist with gait mechanics and help with tension in low back.

21The applicant argues that the OCF-18 for chiropractic treatment is reasonable and necessary because Dr. Marchuk’s IE noted that the applicant continued to have reduced ROM in his cervical spine, lumbar spine, and thoracic spine. The applicant submits that Dr. Marchuk failed to consider whether ongoing treatment would assist with the applicant’s function. The applicant relies on a CNR from the clinic dated March 6, 2023, where the applicant reported relief from previous treatment and the patient did well with acupuncture.

22The respondent argues that the OCF-18 is not reasonable and necessary and relies on the IE report of Dr. Marchuk dated May 18, 2023, who determined that the treatment being sought was beyond customary healing time for soft tissue injuries and would not assist in further recovery. The respondent also asserts that the applicant has not met his onus in proving that goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.

23I find the applicant has not met his onus in proving that the OCF-18 for chiropractic treatment is reasonable and necessary. I find the fact that the applicant reported to Dr. Brander on March 6, 2023 (over three and a half years post-accident) that he benefited from previous treatment is not sufficient to support that the OCF-18 for chiropractic treatment is reasonable and necessary. Further, the above CNR refers to acupuncture where this OCF-18 is seeking chiropractic treatment. I find the CNR of the clinic unhelpful because the note about improvement appears to be based on the applicant’s self-reports and does not provide any details about how the applicant benefitted from past treatment.

24I also find there is a significant gap in the medical records which preceded the submission of this OCF-18. What I find lacking in this case was evidence which supported that the applicant received temporary relief from pain from past treatment which led to improved function or that there had been some improvement to his ROM. Further, the applicant’s argument that Dr. Marchuk’s physical examination of the applicant found the same limitations in his ROM (compared to his previous assessment) does not support that the goal of the OCF-18 would be accomplished because his ROM remained the same despite receiving treatment. For these reasons, I accept Dr. Marchuk’s opinion that the OCF-18 would not assist in further recovery.

25For these reasons, the applicant has not met his onus in proving on a balance of probabilities that the OCF-18 for chiropractic treatment is reasonable and necessary.

Is the respondent entitled to a repayment for overpayment of past IRBS from June 19, 2019, to January 8, 2021?

26The respondent is not entitled to repayment for past payment of IRBs in the amount of $17,649.19.

27Section 47 of the Schedule provides that an insurer may deduct certain amounts from the amount payable to an insured person for IRB. This includes temporary disability benefits and any other periodic benefit being received by the insured person.

28Section 52(1)(a) of the Schedule provides that an insured person is liable to repay an insurer any benefit that is paid to the person as a result of an error on the part of the insurer, the insured person, or any other person, or as a result of wilful misrepresentation or fraud.

29Section 52(2) of the Schedule provides that the insurer must give the insured notice of the amount that is required to be repaid. Section 52(3) limits an insured’s liability to repay an amount if notice is not given within 12 months after the payment of the amount that is to be repaid, unless the overpayment is due to wilful misrepresentation or fraud.

30The overpayment in this case arises from the fact that the applicant was paid an IRB in the amount of $400.00 when the respondent was entitled to deduct amounts received by the applicant for both short-term disability (“STD”) and long-term disability (“LTD”). Both parties agree that the respondent did not give notice to the applicant of repayment of IRBs within 12 months. However, they disagree on whether the overpayment was due to willful misrepresentation, which I will discuss now.

Was the overpayment due to wilful misrepresentation?

31The Tribunal has defined wilful misrepresentation as any manifestation by words or other conduct by one person to another that, under the circumstances, amount to an assertion not in accordance with the facts.” The Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation.

32The applicant argues that there was no wilful misrepresentation with respect to his receipt of STD and LTD. He submits that he never concealed that he was receiving STD when he applied for IRBs. This was an error on the adjuster’s part because all the documents submitted to the respondent referenced that he was receiving STD benefits. Moreover, the adjuster should have been aware of it but paid him the maximum amount of IRBs without making any deductions. The applicant submits that since the respondent did not deduct STD, he did not think LTD was relevant and the respondent never asked him. His silence was not wilful as he did not know that it would have an impact on his IRBs because the STD did not. The LAT application noted that he was in receipt of LTD which supports he never deliberately tried to hide it.

33The respondent submits that the applicant was overpaid due to wilful misrepresentation because he knew or ought to have known that LTD benefits could result in an IRB repayment.

34I find the overpayment was not due to wilful misrepresentation for the following reasons.

35First, the respondent did not rely on any evidence to support its position that the overpayment in this matter was a result of the applicant’s wilful misrepresentation.

36Second, I accept that the applicant never hid the fact that he was receiving STD when he applied for benefits because it was clearly listed on his application for accident benefits, the employer’s confirmation form and paystubs. Despite this fact, I find the adjuster failed to take it into consideration when they calculated the applicant’s entitlement to IRBs. I find that this was an error on the part of the adjuster. Because of this, I accept the applicant’s explanation that because STD was not deducted, he did not think LTD was relevant and I believe him that he did not deliberately try to conceal it.

37Third, I agree with the applicant that the case law relied upon by the respondent is distinguishable from the present case. The respondent relies on this Tribunal’s decisions in Security National Insurance Company v Bradbury (“Bradbury”), 2023 CanLII 107287 (ON LAT); Certas Direct Insurance Company v Borja (“Borja”), 2023 CanLII 91451 (ON LAT); Aviva General Insurance Company v Muthusamythevar (“Muthusamytheyar”), 2020 CanLII 94791 (ON LAT) in support of its position that the applicant wilfully misrepresented that he was the recipient of disability benefits.

38The applicant submits that the circumstances in all three of these decisions are distinguishable from the facts before me. For example, the insured persons in all three of these decisions chose not to participate in the written hearings. In addition, in Bradbury the insured failed to cooperate and ignored numerous requests for information over a period of five years. Further, in both Borja and Muthusamytheyar, both insureds returned to work, failed to report it, and did not cooperate with the insurer’s requests for information. I find the circumstances in this case do not compare to the conduct of the insureds in those proceedings. Further, I find the applicant cooperated with the respondent’s request for information which is not consistent with an attempt to conceal or not be upfront with information.

39For the above-noted reasons, the respondent has not proven on a balance of probabilities that the overpayment was a result of wilful misrepresentation. Since it provided the applicant with notice of repayment outside of the 12-month period, it is not entitled to repayment in the amount of $17,649.19.

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

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any payments are 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?

41The respondent is not liable to pay an award.

42The 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”.

43The applicant submits that he is entitled to an award because the respondent pursued repayment of IRBs when it knew that its notice was outside the 12- month period. In light of my decision above, an award is not warranted in this case as I have not determined that the respondent unreasonably withheld or delayed payment of benefits. I find the fact the respondent pursued its rights under s. 52 and was unsuccessful in this hearing is not grounds for an award.

ORDER

44For the above-noted reasons, I order as follows:

1. The applicant has not established entitlement to any of the benefits in dispute, interest, or an award.
2. The respondent is not entitled to repayment of past IRBs paid to the applicant from June 19, 2019, to January 8, 2021.