Licence Appeal Tribunal File Number: 22-004199/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:
Danny Gryschuk
Applicant
and
CAA Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Michelle Velvet, Counsel
For the Respondent:
Anju Sharma, Counsel
Julia Loiacono, Law Clerk
Court Reporter:
Guido Riccioni
HEARD: by Videoconference:
November 28 and 29, 2023
OVERVIEW
1Danny Gryschuk, the applicant, was involved in an automobile accident on November 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 the respondent, CAA Insurance Company Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was involved in two separate accidents, one on November 26, 2019 and the subsequent accident which occurred sometime in October of 2021.
PRELIMINARY ISSUE:
3The preliminary issue in dispute before the Tribunal is:
i. Does the Tribunal have jurisdiction to determine whether the MIG applies in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies?
ii. Is the applicant’s impairment subject to the MIG?
RESULT
4I find the Tribunal does not have jurisdiction to determine whether the MIG applies in the absence of an underlying dispute relating to entitlement to a benefit which is itself dependent upon a determination of whether the MIG applies.
ANALYSIS
5The applied to the Tribunal requesting the applicant to be found outside of the MIG without the accompaniment of a denied specified benefit.
6The respondent in a notice of motion disagreed with the applicant’s position that the Tribunal had authority to hear the issue of MIG without the accompaniment of a denied specified benefit. However, at the hearing the respondent took no issue with the request and agreed with the applicant’s position that the Tribunal has the authority and jurisdiction to make a decision about the MIG in this application.
7Both parties pointed to the Tribunal’s authority to rule on a catastrophic (“CAT”) determination without a denied specified benefit, therefore there should be no hinderance to making the same type of ruling pertaining to the MIG.
8The Tribunal disagreed with the parties’ understanding of its jurisdiction and authority to make a determination where the applicability of the MIG is in dispute in the absence of a denied medical benefit such as an assessment or a treatment plan. The Tribunal also disagreed with the parties’ submissions that CAT and MIG can be equally treated as stand alone issues.
9I find that the Tribunal’s jurisdiction to make a CAT determination on a stand alone basis distinguishable from MIG as a stand alone issue for the following reasons.
10The Tribunal’s authority is guided by the powers conferred on it by statute. Section 5.1(4) of the Licence Appeal Tribunal Act states:
“Jurisdiction
The Tribunal has jurisdiction to determine all questions of fact or law that arise in matters before it.”
However,
11Section 280 (1) and (2) of the Insurance Act states:
“Resolution of disputes”
280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
Application to Tribunal
(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection.”
Based on the wording of section 280 of the Insurance Act, the Tribunal’s jurisdiction is limited to the “resolution of disputes” in respect of statutory accident benefits or the amount of statutory benefits a person is entitled to.
12The statutory benefits and the amount of statutory benefits a person is entitled to are set out in the Schedule. An insured is entitled to apply for a CAT determination pursuant to s. 45 of the Schedule, and a denial of such a determination then gives rise to a dispute that the Tribunal has jurisdiction to decide.
13I find in the Schedule there is no provision that that entitles an insured to apply for a MIG determination. As there is no entitlement to apply for a MIG determination under the Schedule, a denial of a MIG determination is not a denial of entitlement under the Schedule that gives rise to a dispute over which the Tribunal has jurisdiction.
14The Tribunal routinely makes decisions regarding the MIG, but it does so as a threshold issue in an application where entitlement to benefits provided for in the Schedule is in dispute, not as a stand alone issue.
15A CAT determination can be made by the Tribunal as a stand alone issue as a CAT determination is in itself an entitlement under the Schedule.
16Therefore, I find that the Tribunal does not have jurisdiction to determine whether the MIG applies in this case as there is no dispute before the Tribunal over which it has jurisdiction.
ISSUES
17The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 27, 2019, to November 26, 2021?
ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
18The applicant is not entitled to a non-earner benefit of $185.00 per week from December 27, 2019, to November 26, 2021.
19The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
20The applicant is not entitled to interest on any overdue payment of benefits.
MOTION TO EXCLUDE AN EXPERT REPORT
21The respondent filed a motion on November 29, 2023, the second day of the hearing objecting the admittance into evidence the report of Ms. Isakow-Weiss and submitting her report should be excluded from the within proceedings and that she should be prevented from being called as a witness by the Applicant.
22The respondent takes the position that she did not see the applicant until July of 2023, well after the 104 week period, therefore she cannot comment on the non-earner benefit test during the relevant period for the non-earner benefit issue in dispute. The respondent submits that Ms. Isakow-Weiss is only able to discuss function and is unable to discuss causation or give a diagnosis in her capacity as an occupational therapist. The respondent submits recommendations made by Ms. Isakow-Weiss, which were made outside of her professional scope, should not be considered. She made recommendations for the following; an orthopaedic assessment, a psychological assessment, to see a pain specialist, psychological treatment, and a cognitive assessment amongst other things. It submits by making those recommendations she took the position of an advocate rather than an impartial assessor which is not within her professional scope.
23The applicant took the position that Ms. Isakow-Weiss acted within the scope of her expertise and should be accepted as an expert witness.
24Rule 10.4 of the Common Rules states that “a party intending to challenge an expert’s qualifications, report, or witness statement shall give notice with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing….”
25Given that the respondent failed provide proper notice according to rule 10.4, her report will be allowed into evidence.
26Although Ms. Isakow-Weiss can offer some insight into the applicant’s abilities, I agree she did act outside of the scope of her profession when making recommendations for assessments and other treatment plans and she assessed the applicant beyond the scope of the 104 week period for non-earner benefits. I will take these factors into consideration and give her testimony limited weight based on the factors listed above.
MOTION TO ADMIT DOCUMENTS INTO EVIDENCE AFTER THE CASE CONFERENCE REPORT AND ORDER DEADLINES
27The applicant put forth a motion seeking to admit e-mails from Social Worker Betty Yan of UHN. He submits these documents are relevant to the hearing, did not exist or were not relevant and/or available within the final production deadline of 120 calendar days after the case conference or within 45 calendar days from the commencement of the November 28-29, 2023 Tribunal hearing. The applicant relies on the Common Rules of Practice & Procedure (“Common Rules”) sections 9.4.2 & 9.5.2 in support of his position.
28The respondent submits that the information contained in the e-mails is not relevant to the issues in dispute, has always been available to the applicant, and could have been submitted by the deadlines in the case conference report and order.
29The application was filed, and the first Notice of Case Conference was issued prior to August 2023 which means that the applicant erred in his submissions. The subsections that I am pointed to above apply to the Licence Appeal Tribunal Rules which took effect as of August 21, 2023 and not the Common Rules which apply to this proceeding.
30I decline the applicant’s request to submit further documents after the case conference deadlines. Common Rule 9.3 takes relevancy into consideration when ordering the production of documents. The accident took place on November 26, 2019, the issues in dispute are Minor Injury Guideline (“MIG”) and a non-earner benefit from December 27, 2019, to November 26, 2021. The emails and documentation the applicant is requesting to submit is from November 19, 2023, pertaining to occurrences in November 2023. I find it has no relevance to the issues in dispute. Further, I agree with the respondent, the applicant has not persuaded me that he could not obtain the information from the website within the production deadlines.
31Upon taking into consideration the submissions of both parties and the issues in dispute, I will not enter into evidence the information the applicant has submitted post the Case Conference Report and Order production deadline of March 29, 2023.
ANALYSIS
The applicant is not entitled to a non-earner benefit
32I find that the applicant has not established that he is entitled to a non-earner benefit.
33The applicant takes the position that he is entitled to the non-earner benefit for two reasons. The first reason is the applicant meets the test for eligibility and secondly the respondent failed to provide a proper denial in its letters.
ANALYSIS
34Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit 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) of the Schedule provides that “a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
35The applicant pointed to a report tendered by the respondent from psychiatrist Dr. Tam dated June 25, 2021 which indicated that he had retired as of February 2016 from his work as a fire sprinkler installer and a fire alarm technician. The applicant indicated to several treatment providers and assessors that he had retired in 2016, however, in his testimony he clarified that he had in fact retired in 2016 but clients he used to work for continued to reach out to him to have work done post retirement. He stated that he continued to work as an independent contractor up to and post the date of the subject accident. During cross-examination he was also asked if he worked post accident and he responded yes.
36The applicant has reported to several treatment providers and assessors that he is retired, which is contrary to his testimony during the hearing. Under oath he clarified his position that he was in fact retired but continued to work as an independent contractor.
37The applicant described his independent contract work duties as: he would collect pipes from suppliers, put them in the van, unload the van, set up the work tools, then remove and install new pipes in the ceiling for the new fire sprinklers. In the evenings he would review work notes, and plan for the next day. Post accident he stated that he had some difficulty lifting anything heavy but did not state that it stopped him from fulfilling his independent contract work post accident. By working it shows that he was able to substantially engage in the same work activities pre and post accident.
38He also testified that pre-accident he would go to work, and in the evenings, he would go to Tim Hortons, read the newspaper, grab a coffee, and do crossword puzzles. Post accident his testimony identified he has a remarkably similar daily routine, however he testified he had greater difficulty carrying the same load of groceries or anything heavy, mopping and doing dishes. He also testified that he was part of a pool league and had to stop participating due to his injuries.
39I find through his testimony that he was substantially able to continue with a large portion of his pre-accidnet activities. He testified that he had greater difficulty carrying the same load of groceries, and was struggling with mopping and doing dishes, but he was still able to engage in those activities. The only activity he was unable to continue with was his pool league. He was able to continue to go to Tim Hortons, read the newspaper, grab a coffe, do his crossword puzzles, walk to pick up groceries, and even work.
40The test for a non-earner benefit is a stringent test. The applicant must demonstrate a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Based on the applicant’s testimony, his pre and post activities have remained very close to the same. He continued to work by his own admission post accident, and very little has changed in his daily activities. He has not persuaded me that he has a complete inability to carry on a normal life as a result of the accident. Therefore, he is not entitled to the non-earner benefit.
Are the denial letters inadequate?
41The second argument the applicant makes is that the respondent failed to provide a proper denial persuant to 36.6 of the Schedule and therefore the benefit should have been paid.
42Section 36(4) of the Schedule sets out particulars which must be included in the denial letters when the respondent decides the applicant fails to meet the test for specific benefits. Should those requirements outlined in the Schedule not be met, the Schedule sets out the remedy.
43Under s. 36(4) (a) and (b), and section 36.6 of the Schedule states:
“Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
(a) “pay the specified benefit;” or
(b) “give the applicant notice explaining the medical and any other reasons why the insurer does not believe the applicant 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 subsection 33 (1) or (2). O Reg. 34/10, s. 36 (4).”
44Section 6 of the schedule states:
“ 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. O. Reg. 34/10, s. 36 (6).”
45The respondent sent a letter to the applicant on January 14, 2020 acknowledging receipt of an OCF-3 dated December 27, 2019 notifying the applicant that he was required to participate in an examination under oath.
46In a second letter dated January 29, 2020, the respondent outlines the denial is for the non-earner benefit and sets out the criteria that must be met according to the Schedule to be eligible for the benefit. It acknowledges the receipt of the OCF-3 and identifies the author, it then states that further investigation is needed by a section 44 assessor, as his reported injuries were considered minor in nature and fell within the MIG. It also outlines the discrepancy between the applicants position and the respondents.
47On February March 31, 2020, the respondent sent the applicant a third letter denying the non-earner benefit. It notifies the applicant that the results of the of the section 44 Insurer Examination reports from Dr. Anna Czok (Physiatrist) and occupational Therapist Ms. Linda Zelek did not support his position that he was eligible for the non-earner benefits. Copies of the reports were attached to the letter. It also states, “Pursuant to Section 36(7) of the SABS, we are providing a copy of this letter and Insurer’s Examination report to the health practitioner who prepared the Disability Certificate (OCF-3) to ensure that they are aware of our position.” Lastly, it states in the letter “Please find attached an Applicant’s Rights to Dispute detailing our position and your rights to dispute”.
48The applicant submits that the denial letter must be easy to read and understand, and according to the Schedule it must give medical reasons for the denial, the letters sent by the respondnet were written in legal ease and not easiy understood. He also argues that the respondent erred in law by not providing suffiient medical reasons in each individual letter sent. The Schedule does not state that the information can be disseminated in more than one letter to the applicant. Further, the applicant submits the proper denial was not sent to him within 10 days upon reciept of the application for the benefit, but he did not direct me to evidence which supported his position. According to the applicant, under section 36.4(a) of the Schedule the benefit should have been paid. Lastly, he argues that the documents were not sent to the practitioner as per the requirements of seciton 36 and 36.5 of the Schedule.
49The respondet takes the position that the notice was proper as per the requirements of the Schedule. The letters were clear, outlining the benefit and the reasons for the denial. It argues that the Schedule does not say the letters cannot provide the reasons when read together, it simplly states the reasons must be clear. The respondent submits that a medical reason cannot be given if one does not exist. It did in fact provide a medical reason. Medically the applicant did not meet the complete inability test as found by the assessors. The letter included the names of the assessors, their profession and it attached a copy of the reports for the applicnat’s review.
50I find the combination of the letters of denial sent to the applicant and applicant’s counsel were clear and unambiguous and met all of the reuqirements for a proper denial as per the Schedule.
51I find the letter(s) clearly and concisely communicated in a chronological order the steps it was taking to determine eligibility for the non-earner benefit.
52First it acknowledged the receipt of the OCF-3 and provided a clear outline of the test according to the Schedule, it then notified the applicant that further investigation was required as the reported injuries appeared minor and did not meet the test.
53In the joint document brief provided, it shows the reports were attached in a letter to the applicant as indicated in the body.
54The respondent directed me to, and I accept into evidence an entry on March 31, 2020 which indicates in the respondent’s log notes an entry which shows the denial letters were sent to the author of the reports. Although it does not name each author specifically it does indicate they have been sent. The applicant has not provided me with evidence to the contrary.
55Further, the applicant has not provided me with evidence that the denial letter was sent to the applicant post the 10 days upon receipt of the OCF-3 as set out in the Schedule.
56I find the letter of denial was sufficient.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 52(5) of the Schedule. No interest applies as the benefits have been denied.
Award
58The applicant submits an award is owing pursuant to s.10 of Regulation 664 because the insurer unreasonably withheld and delayed payment of benefits.
59The applicant alleges the respondent did not comply with the Case Conference Report and Order dated March 29, 2023 which ordered all redactions should contain an explanation for each redaction.
60The applicant also submits there has a breach under Section 44.9 of the schedule.
61Also, the applicant submits the respondent failed to refer the applicant to a section 44 assessment for neurology despite providing an OCF-18 received by the respondent on January 13, 2020, an OCF-3 dated December 27, 2019 and supporting clinical notes and records.
62He also submits that the adjuster failed to consider all of the medical evidence before her in adjusting the claim. Specifically, the adjuster failed to consider denials based on new medical evidence submitted by the applicant evidencing deterioration of his physical and psychological impairments.
63Further, the applicant takes the position that available documentation on file supports the payment of the denied benefits and that the respondent was not in a position to fairly or reasonably entitled to take.
64The applicant points to a log note entry March 21, 2020 which notes it chose not to reschedule a neurological assessment which was cancelled due to COVID. The log note entry indicates that the “….physiatry report states that no neurological impairments, as such will not reschedule IE, these 2 IE’s should be sufficient for determination that cm does not suffer complete inability to carry on normal life”
65Lastly, the applicant takes the position that the respondent failed to comply with s.38(8) of the schedule.
66Respondent submits that it has acted in good faith.
67The Case Conference Report and Order dated March 29, 2023 orders the adjuster’s log notes redacted for privilege and reserves and the basis for each redaction indicated. Contained within the joint document brief is a letter dated August 23, 2023 sent to the applicant’s counsel from the respondent itemizing each redaction in a numbered format and an explanation for each redaction. Directly following the letter is the redacted log notes. The applicant has not persuaded me that the respondent has breached the Case Conference Report and Order.
68I do not find the respondent breached the Case Conference Report and Order, an award will not be granted.
69The applicant submits the respondent is in breach of section 44.(9) of the Schedule but did not give me submissions as to how the respondent is non-compliant. Therefore, I am not persuaded that that an award should be granted.
70Regarding the respondent’s failure to reschedule the applicant for a neurological assessment, the respondent submits that upon adjusting the file and as medical evidence was updated, the need for a neurological assessment became unnecessary.
71Besides the dates provided by the applicant, he failed to point me to specific clinical notes and records or plans in support of the need for a neurological assessment. I have no submissions or evidence before me to consider that a neurological assessment may have change the outcome or the adjustment of the file.
72Given the submissions and evidence, I do not find the respondent acted in bad faith and an award will not be granted.
73The applicant has not demonstrated how the adjuster failed to consider denials based on new medical evidence provided by the applicant evidencing deterioration of his physical and psychological impairments.
74I am not persuaded by the applicants’ submissions; I do not find the respondent acted in bad faith and an award will not be granted.
75Further, the applicant takes the position that available documentation on file supports the payment of the denied benefits and that the respondent was not in a position to fairly or reasonably entitled to take.
76The applicant log note the applicant points to regarding the cancellation of the neurological assessment states that the “.. physiatry report states no neurological impairments, as such will not reschedule Neuro IE…” I find the respondent is entitled to adjust its file accordingly depending on the medical information it is provided. There is no requirement in the Schedule to require the respondent to schedule IE assessments once it determines the applicant does not meet the test.
77I am satisfied the respondent did not act in bad faith; an award will not be granted.
CONCLUSION AND ORDER
78The applicant is not entitled to a non-earner benefit.
79Is the respondent not liable to pay an award.
80Is the applicant not entitled to interest.
Released: April 5, 2024
Mary Henein Thorn
Adjudicator