Sun Pingrong v. Safety Insurance Company, 2024 CanLII 33178

Citation: Pingrong v. Safety Insurance Company, 2024 ONLAT 21-010728/AABS - R

RECONSIDERATION DECISION

Before: E. Louise Logan

Licence Appeal Tribunal File Number: 21-010728/AABS

Case Name: Sun Pingrong v. Safety Insurance Company

Written Submissions by:

For the Applicant: Miryam Gorelashvili, Counsel

For the Respondent: Crystal Schulz, Counsel

OVERVIEW

1On December 12, 2023, the respondent requested reconsideration of the Tribunal’s decision dated November 22, 2023 (“decision”).

2In the decision, the Tribunal found the applicant failed to demonstrate she sustained a catastrophic impairment or that she is entitled to non-earner benefits. The Tribunal found the applicant is entitled to attendant care benefits of CN ¥159,705 yuan, medication expenses of CN ¥612.32 yuan and interest on those benefits. The Tribunal also found the applicant is not entitled to the remainder of the disputed treatment plans or expenses for medication, transportation costs, or the cost of assessments/treatment that were claimed as procedural fees.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The respondent is seeking reconsideration pursuant to Rule 18.2(a) and (b) with respect to attendant care benefits and related interest. The respondent’s submissions are not clear about the remedy it is seeking pursuant to Rule 18.4, but based on its submissions it is my understanding that it is seeking to vary the Tribunal’s decision with respect to entitlement to attendant care benefits and related interest.

5The applicant seeks to have the reconsideration request dismissed.

RESULT

6The respondent’s request for reconsideration is granted, in part.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

8Although the respondent indicates it is requesting reconsideration under Rule 18.2(a) and (b), its supporting submissions only refer to errors of fact and law. Therefore, I find the respondent has not established grounds for reconsideration under Rule 18.2(a).

Rule 18.2(b) - Entitlement to attendant care benefits

9The respondent argues the Tribunal made an error of fact by finding the respondent did not deny entitlement to benefits. It also argues the Tribunal made an error of law by finding the applicant had no functional limitations as a result of the accident, but still awarded attendant care benefits contrary to section 19(1)(a) of the Schedule.

10Specifically, the respondent submits that, notwithstanding the Tribunal’s determination that the applicant suffered no functional limitations as a result of the accident, the Tribunal found that attendant care benefits were payable from June 16, 2018. This was on the basis that the respondent did not deny that the applicant was entitled to attendant care benefits. The respondent submits that this was an error, and that the applicant’s entitlement to attendant care benefits was a live issue at the hearing, and was addressed in the application to the Tribunal, the amended application, the response dated September 13, 2021, the amended response dated August 23, 2023 and the parties’ written submissions. The respondent submits that each party has confirmed throughout the proceeding that the denial of attendant care benefits on March 9, 2020 was based on Dr. Bernstein’s report.

11The respondent also argues the Tribunal failed to determine if the attendant care invoices and services were reasonable and necessary as a result of the accident. It submits the awarding of benefits in this case is contrary to section 19(1)(a). It submits that awarding attendant care benefits to the applicant, after a determination that she suffered no functional impairments resulting from the accident, is an absurd result. It cites Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC) at para 27 in support of its position.

12The applicant submits that the respondent’s denial of attendant care benefits was not done in compliance with section 44(9)(3). Dr. Bernstein did not and could not have completed a Form 1 as he is not a licensed occupational therapist, as required by section 42(1)(b). This rendered the denial notice insufficient. The applicant submits the Tribunal exercised its authority to conclude the attendant care benefits were incurred by the applicant. The applicant paid for an occupational therapist to fly to China and conduct the assessment of attendant care needs. As a result, the applicant produced the required Form 1 and complied with section 42(6). The applicant submits that the respondent did not conduct a section 44 assessment and did not comply with section 42(7) to obtain a Form 1. She argues the respondent cannot argue on reconsideration there is an issue of substantive entitlement when it failed to comply with the Schedule. She submits the respondent is attempting to reargue its case, which is not grounds for reconsideration.

13The issue of accident care benefits is addressed at paragraphs 75 to 89 of the decision. The Tribunal considered the evidence, the positions of the parties, and the relevant provisions of the Schedule. It found that the respondent had not denied the applicant’s benefits in compliance with the requirements of the Schedule and the applicant was therefore entitled to attendant care benefits. I see no error of fact or law in this determination.

14Specifically, at paragraph 75, the Tribunal set out the legal test for entitlement. At paragraph 76, it set out the applicant’s position. At paragraph 77, it noted that the respondent had not conducted any attendant care IE assessments to determine whether the applicant is entitled to the benefit claimed. At paragraph 78, it stated that any attendant care required by the applicant is due to her psychological impairments, which the Tribunal found were due to health complications that resulted from or caused the applicant to fall post-accident. The Tribunal found that the respondent had not denied that the applicant is entitled to attendant care benefits, despite Dr. Bernstein’s opinion that the applicant did not require attendant care as a result of her accident injuries.

15At paragraph 79, the Tribunal noted that under section 42(6), the respondent is required to begin paying attendant care benefits incurred based on the most recent Form 1, pending an attendant care IE assessment and Form 1 which, as noted above, the respondent had not done. The Tribunal noted that the only reason the respondent hadn’t paid attendant care benefits was that it claimed it did not have enough information to determine whether the expenses were incurred as defined under section 3(7)(e). The Tribunal then set out the respondent’s position that the applicant’s failure to provide an OCF-3 means no attendant care is payable from March 20, 2019. The Tribunal found that there is no requirement in the Schedule for an insured person to produce an OCF-3 to be entitled to an attendant care benefit.

16At paragraph 81, the Tribunal found that the evidence showed the applicant had been receiving attendant care from Mr. Wu, who was providing the care in the course of his employment. At paragraph 82, the Tribunal set out the respondent’s position as follows:

The respondent asked for confirmation of whether Mr. Wu was normally employed as an attendant care giver prior to the accident as early as January 19, 2019 but was not provided with Mr. Wu’s CV until October 2022. The respondent also asked the applicant to translate Mr. Wu’s invoices and to produce the applicant’s bank information to confirm that she paid for the attendant care. The respondent submits that the request for this information was made under s. 33 of the Schedule and that attendant care is not payable for the period of time the information was not forthcoming under s. 33(6). I do not agree.

17At paragraph 83, the Tribunal set out its reasons for finding the respondent did not intend to rely on section 33(6) to deny attendant care. It concluded that the absence of an explanation of the consequences to the applicant for failing to comply with section 33(1) meant the applicant was not required to provide a reason for her delay in providing the information sought by the respondent. At paragraph 84, the Tribunal found the respondent had enough information to adjust the applicant’s claims by October 22, 2022.

18At paragraphs 85 to 88, the Tribunal set out its reasons for finding that the applicant incurred the expenses. At paragraph 89, the Tribunal found that the applicant had proven the expenses were incurred, and as the respondent had not denied entitlement, attendant care benefits were payable.

19I do not agree with the respondent that the Tribunal erred in fact when it found the respondent had not denied benefits. I do not agree that the Tribunal erred in law in finding benefits were payable under the Schedule. Further, I do not agree that the Tribunal’s determination that the applicant is entitled to attendant care benefits even though it found her attendant care needs did not result from the accident is an “absurd result”. Rather, the Tribunal’s findings on these points are clearly rooted in the provisions of the Schedule as set out in the decision and noted above.

Rule 18.2(b) - Period of attendant care benefits and interest payable

20The respondent submits that if the Tribunal finds attendant care benefits are owing to the applicant, benefits should only be awarded from March 9, 2020 forward. It submits the Tribunal erred in fact by finding the applicant was entitled to benefits between June 16, 2018 and March 7, 2020, or in the alternative, between June 16, 2018 and January 28, 2019. It submits that in her application, the applicant only sought attendant care benefits from the date of denial, March 9, 2020. It submits the applicant did not amend her application or bring a motion to change the Care Conference Report and Order (CCRO) dated September 28, 2022 before the hearing. In the alternative, the respondent submits that pursuant to section 42(5), an insurer is not required to pay attendant care before a Form 1 is submitted. The Form 1 was submitted on January 29, 2019, therefore attendant care benefits should not be payable between June 16, 2018 and January 29, 2019.

21The respondent also seeks a determination that if attendant care benefits are owing, interest is only payable for the period in which the attendant care benefits were in dispute, commencing March 9, 2020. In the alternative, it seeks confirmation that if attendant care benefits are owing, interest is only payable when the payment for attendant care benefits became overdue, being 10 days after the Form 1 was received by the insurer on January 29, 2019.

22The applicant submits that attendant care benefits should be payable as determined by the Tribunal in the decision, starting on June 16, 2018. She submits the respondent failed to comply with section 54, and the failure to provide the applicant with the official date of denial prior to March 9, 2020 forced her to choose March 9, 2020 as the denial date on her application. She submits her application could not have been amended to include an earlier date due to the insurer’s failure to deny the benefit until March 9, 2020.

23As set out above, once the Tribunal determined the respondent did not deny entitlement to attendant care benefits, it turned to the question of whether the applicant had incurred expenses for attendant care benefits. At paragraph 88, it found the evidence showed the applicant incurred expenses beginning on June 16, 2018. At paragraph 89, the Tribunal then calculated entitlement based on the invoices submitted by the applicant as of June 16, 2018.

24I find the Tribunal did not err when it determined the applicant was entitled to a longer period of attendant care benefits than the period of dispute set out in the CCRO. It is clear from paragraph 76 of the decision that the Tribunal was aware that the applicant had claimed attendant care benefits from March 9, 2020 to date and ongoing. As noted above, when the Tribunal considered the evidence before it in light of the provisions of the Schedule, it found the applicant was entitled to attendant care benefits for a longer period. I see no error in this finding.

25However, I agree with the respondent that the Tribunal erred in not considering section 42(5) when establishing the period of entitlement to benefits. Of note, the period of entitlement set out in the decision includes a “retroactive” period of benefits. That is, a period before the applicant submitted the Form 1 as required by section 42(5). Furthermore, I find that in not considering section 42(5), the Tribunal made an error that would likely have changed the result of the decision.

26Section 42(5) provides that the insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs is submitted to the insurer. As noted above, the respondent indicates it received the Form 1 on January 29, 2019. The applicant does not dispute this.

27Instead, the applicant argues that technical compliance with section 42(5) was impossible in this case, and she is therefore entitled to retroactive benefits. The applicant relies on 18-000790 v. Jevco Insurance Company, 2019 CanLII 22200 (ON LAT). In Jevco, the Tribunal found that if technical compliance with section 42(5) is impossible, the question is whether “urgency, impossibility or impracticality” prevented the applicant from complying with section 42(5). If the answer is yes, then payment for retroactive benefits may be warranted. The applicant argues that she is a citizen of the People’s Republic of China which made it practically impossible for her to find an Ontario-licensed occupational therapist to conduct an assessment and prepare a Form 1 in China. It took time for the applicant to arrange for an Ontario-licensed therapist to fly to China and conduct the assessment and complete the Form 1. It would have been impossible and impracticable for her to complete this task earlier.

28The respondent did not file reply submissions and therefore did not respond to the applicant’s argument with respect to retroactive benefits.

29I agree with the applicant that impracticality initially prevented her from compliance with section 42(5). The applicant is a resident of China who was injured in Canada on June 4, 2018. The applicant identified an Ontario-licensed occupational therapist who would fly to China to conduct the attendant care assessment in October 2018. This was documented in a report dated January 7, 2019 submitted to the respondent on January 29, 2019.

30I note, however, that in Jevco the parties agreed the applicant was entitled to past and present attendant care benefits. That is not the case here. In this case, the Tribunal found that the applicant’s need for attendant care did not arise out of the accident. The applicant’s entitlement to attendant care benefits flows from the fact the respondent had not denied entitlement. While retroactive benefits may be payable under section 42(5), I do not find retroactive benefits are appropriate in this case.

31As a result, I find that attendant care benefits are owing as of January 29, 2019 which is the date the Form 1 was received by the insurer. As noted in the decision, the applicant submitted invoices for expenses from June 16, 2018 to July 17, 2022, but did not demonstrate she incurred expenses after July 17, 2022. Therefore, I find that attendant care benefits are payable for the expenses incurred during the period January 29, 2019 to July 17, 2022.

32I also find that interest is payable from the time payment for attendant care benefits became overdue, being 10 days after the Form 1 was received by the respondent on January 29, 2019.

CONCLUSION & ORDER

33The respondent’s request for reconsideration is granted, in part.

34Pursuant to Rule 18.4, the decision is varied to find that:

i. Attendant care benefits are payable for the expenses incurred for the period January 29, 2019 to July 17, 2022; and

ii. Interest is payable from the time payment for attendant care became overdue, being 10 days after the Form 1 was received by the respondent on January 29, 2019.

E. Louise Logan

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal