Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-006609/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:
Wendy Dunn
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Sagar Shah, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD: By way of written submissions
OVERVIEW
1Wendy Dunn, the applicant, was involved in an automobile accident on November 30, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute as listed in the Case Conference Report and Order are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 3, 2020 to date and ongoing?
ii. Is the applicant entitled to $1,196.93 ($3,192.25 less $1,995.32 approved) for psychological services, proposed by Imperial Medical Assessments Inc. in a treatment plan submitted March 9, 2020?
iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit or the treatment plan in dispute.
4Since there are no benefits owing, the applicant is not entitled to interest.
5The respondent is not liable to pay an award.
PROCEDURAL ISSUES
6After the parties’ written hearing submissions were provided, the respondent filed a Notice of Motion objecting to portions of the applicant’s reply submissions. The motion was to be addressed as part of this written hearing. The respondent requests that paragraphs 10, 12, 13, 15 and 16 of the applicant’s reply and the corresponding evidence be struck from the evidentiary record. The respondent argues that these paragraphs contain new evidence and arguments that were improperly raised for the first time in reply, rather than in the applicant’s initial hearing submissions. It relies on Rules 3.1 and 15 of the Licence Appeal Tribunal Rules (“Rules”) and Tribunal decision Spence v. Aviva General Insurance, 2023 CanLII 84381 (ON LAT), to argue that it would be a breach of procedural fairness to allow new evidence and arguments in reply.
7I agree with the respondent and strike paragraphs 10, 12, 13, 15 and 16 of the applicant’s reply submissions. These paragraphs and the referenced evidence will not be considered as part of this written hearing.
8The referenced paragraphs introduce new evidence and arguments which should have been raised in the applicant’s initial hearing submissions. The new evidence includes clinical notes and records (“CNRs”) from the applicant’s family physician and pain clinic, treatment records from her physiotherapy clinic and a prescription record summary. In the referenced paragraphs the applicant for the first time summarizes clinical visits with various physicians and her rehabilitative treatment.
9It is well settled that the purpose of reply submissions is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues or submit new evidence that should have been raised in initial submissions. As a general rule, parties are expected to make the entirety of their cases in their main submissions. New evidence as part of a reply typically is not permitted, because the respondent does not have the opportunity to respond to new evidence that is tendered as part of a reply.
10The applicant has not provided any responding motion submissions, or offered any explanation as to why the new evidence and arguments were not raised as part of her initial hearing submissions. I find that the respondent would be prejudiced if the new evidence and arguments were included as it does not now have an opportunity to respond. It would be a breach of procedural fairness for the applicant to address her medical and treatment record for the first time in reply submissions. This also runs counter to Tribunal Rule 3.1, and the effective participation of all parties. As such, paragraphs 10, 12, 13, 15 and 16 of the applicant’s reply submissions are struck from the evidentiary record and will not be considered as part of this hearing.
ANALYSIS
Income Replacement Benefit (“IRB”)
11I find that the applicant has not established entitlement to IRBs. Nor has the applicant established that IRBs should be payable pursuant to s. 36(4) and s. 36(6) of the Schedule.
Substantive Entitlement to IRBs
12To 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.
13The applicant has provided limited submissions on her substantive entitlement to IRBs. In her submissions the applicant does not refer to s. 5(1) of the Schedule, provide any details of her employment or explain how any accident-related impairments have affected her ability to perform her workplace tasks. Rather, the applicant states the issue of IRBs can be disposed of by considering the procedural requirements of s. 36(6), 44(5) and 38(8) of the Schedule.
14In terms of medical evidence to support a substantial inability to perform the essential tasks of her employment, in her initial submissions the applicant has solely relied upon a Disability Certificate (“OCF-3”) provided by her chiropractor. In her reply submissions the applicant provided a s. 25 assessment report from Dr. Eugene Hewchuk, psychologist, which the respondent did not dispute. Although in her reply submissions the applicant further attempted to submit CNRs from her family physician and pain clinic, a prescription summary and physiotherapy records, as previously noted, this evidence was the subject of the respondent’s motion and will not be considered as part of the evidentiary record.
15The applicant argues that Dr. Yusuf Rujeedawa, chiropractor, had diagnosed her with “several upper body injuries” as a result of the subject accident and had “certified” that she was unable to perform the essential tasks of her employment. The applicant further relies on the psychological report of Dr. Hewchuk, who diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, and specific phobia – passenger. Dr. Hewchuk found that the applicant was substantially unable to perform the essential tasks of her employment.
16The respondent argues that the applicant has not established entitlement to IRBs. Firstly, it submits that the applicant did not stop working as a result of accident-related impairments. Rather, it argues that the Employer Confirmation form (“OCF-2”) confirms that the applicant had stopped working over a month prior to the subject accident. The applicant had requested a medical certificate for sick leave from her family physician due to anxiety and financial stress due to her hours being cut. The applicant further reported to the respondent’s assessor that she was unsure if her job was still available, as the business had been severely impacted by the pandemic.
17As such, the respondent submits that the applicant did not stop working due to the accident, but rather, stopped due to a pre-accident sick leave, and later due to pandemic related slowdowns. The respondent further relies on the reports of its s. 44 psychological and general practitioner assessors both of whom found that the applicant did not suffer a substantial inability to perform the essential tasks of her employment.
18I find that the applicant has not met her onus to prove that as a result of the accident, she suffers from a substantial inability to perform the essential tasks of her employment.
19Firstly, despite providing reply submissions, the applicant did not address the respondent’s argument that the applicant stopped working due to pre-accident stressors and pandemic related reduction of hours, rather than the subject accident. I agree with the respondent that the OCF-2 indicates that the applicant’s last date worked was October 13, 2019 and that the referenced CNR entries indicate that the applicant had taken sick leave due to stress as a result of her reduced hours. The applicant further reported to her s. 25 psychological assessor Dr. Hewchuk that at the time of the accident she had taken time off to reflect on her reduced hours and possibly look for other employment. She also reported to Dr. Hewchuk in March 2020, that she would not be returning to her pre-accident employment due to “imposed fewer work hours” and instead would be seeking employment at places where she had worked previously. As such, I agree with the respondent that the evidence does not establish that the applicant stopped working due to the accident.
20Further, I do not find that the applicant has led sufficient evidence to establish that she suffers from a substantial inability to perform the essential tasks of her employment. The only evidence in support of the applicant’s claim is a s. 25 assessment report with respect to the applicant’s psychological impairments, and an OCF-3 with respect to her physical impairments.
21When comparing the s. 25 psychological assessment report of Dr. Hewchuk to the psychological IE report of Dr. Ratti, I prefer Dr. Ratti’s report. The respondent’s assessor found that the applicant did suffer from an adjustment disorder as a result of the accident. However, he went on to consider the applicant’s description of her pre-accident employment and her reported normal employment duties including serving customers, sorting garments, bagging orders, billing, standing, using a computer and talking to customers on the telephone. After conducting psychometric testing and a clinical interview, Dr. Ratti concluded that there was no evidence that the applicant’s psychological factors resulted in functional limitations or caused a substantial inability to perform the essential tasks of her employment.
22In contrast, the applicant’s s. 25 assessor Dr. Hewchuk did not identify the applicant’s pre-accident employment tasks or provide any description of the applicant’s pre-accident employment. While he was noted that the applicant had previously been employed at Drape master, a dry cleaning business, no assessment was provided as to the how the applicant’s adjustment disorder and passenger phobia rendered her unable to complete workplace tasks. As such, I find the more comprehensive assessment of the respondent’s IE assessor to be persuasive.
23Further, with respect to the applicant’s physical impairments, the only evidence the applicant has submitted is an OCF-3 prepared by her chiropractor Dr. Rujeedawa. I agree with the respondent and its cited Tribunal decisions that an OCF-3 alone is not sufficient evidence to support entitlement to an IRB without additional medical evidence. Further, the respondent’s general practitioner IE assessor Dr. Dharamshi found that while the applicant had sustained accident-related myofascial impairments, including right shoulder strain and possible rotator-cuff tendinopathy, the applicant would still be able to perform her pre-accident employment tasks. Dr. Dharamshi considered the applicant’s specific workplace tasks when rendering his opinion. I am persuaded by Dr. Dharamshi’s report and his finding that the applicant did not meet the test for entitlement to IRBs.
Respondent’s IE Reports
24I further am not persuaded by the applicant’s argument that the respondent should not be permitted to rely on its s. 44 reports, as these reports were procured as a result of “defective Insurer Notices” and therefore are void ab initio. The applicant appears to be arguing that since the underlying notices requesting s. 44 assessments did not comply with s. 44(5) of the Schedule, the respondent cannot now rely on the s. 44 reports that had been produced as a result of these assessments. In support of her argument, the applicant references s. 38(11) and 44(6) of the Schedule. I do not agree with the applicant that these sections of the Schedule support the position that an insurer cannot reply on IE reports obtained by way of insufficient notices.
25Firstly, Section 38(11) addresses insurer notices provided in relation to treatment plans, not specified benefits. Therefore, I do not find that this section is applicable to IRBs. Nor does s. 38(11) address s. 44 reports. Further, s. 44(6) of the Schedule simply states that if an insurer requires a claimant to attend at an IE, it must provide a notice in compliance with s. 44(5). However, it does not state that if a notice is non-compliant with s. 44(5) of the Schedule, an insurer is prohibited from relying on any subsequently obtained reports. Rather, from my review of the Schedule, if a notice of examination does not comply with s. 44(5), then the consequence is that the statutory bar for non-attendance at the requested IE specified in s. 55(2) of the Schedule is not available to an insurer. The applicant does not direct me to any statutory authority or caselaw in support of her claim that non-compliance with s. 44(5) renders a subsequent IE report void.
26As such, I have considered the respondent’s s. 44 assessment reports and am persuaded by the assessors’ findings that the applicant does not suffer from a substantial inability to perform the essential tasks of her employment.
Procedural requirements of s. 36(6), 44(5) and 38(11) of the Schedule
27I find that the applicant has not established that IRBs are payable pursuant to s. 36(6), 44(5) and 38(11) of the Schedule.
28Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed disability certificate (“OCF-3”) for IRBs, the insurer shall:
a) Pay the specified benefit;
b) Give the applicant a 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 s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) Send a request to the applicant under s. 33(1) or s. 33(2).
29Section 36(6) of the Schedule states that if an insurer fails to comply with s. 36(4), the insurer shall pay the specified benefit until it provides a subsequent compliant notice.
30The applicant does not dispute the respondent’s submissions that it first received a completed OCF-3 on February 5, 2020. By way of Explanation of Benefits (“EOB”) dated February 6, 2020, the respondent confirmed receipt and stated that it had determined that IRBs will be payable in in the amount of $400 per week. The respondent also retroactively paid IRBs in the amount of $3,542.86 for the period of December 7, 2019 to February 6, 2020.
31I do not agree with the applicant that the respondent’s February 6, 2020 EOB was non-compliant with s. 36(4) of the Schedule.
32Upon receiving an OCF-3, the respondent had three options: pay the specified benefit, provide medical and any other reasons for the denial and if required, request a s. 44 examination, or make a s. 33 request for additional information. In its February 6, 2020 EOB, the respondent chose to pay the specified benefit. As such, I find that the respondent complied with s. 36(4)(a) of the Schedule.
33I further am not persuaded by the applicant’s additional argument that IRBs should be payable pursuant to s. 44(5) and 38(11) of the Schedule.
34With respect to s. 44(5), the applicant argues that the respondent’s various Notices of Examination (“NOEs”) failed to provide sufficient medical and other reasons for the proposed IEs. I agree with the applicant and her cited caselaw that the reason provided by the respondent in its NOE, that the “disability period appears to be inconsistent with the diagnosis or mechanism of injury”, is not a sufficient medical reason and is boilerplate language.
35However, the applicant does not direct me to any section of the Schedule which supports her claim that non-compliance with s. 44(5) renders IRBs payable. Rather, as previously noted, if an NOE does not comply with s. 44(5), then the applicant would not be required to attend the scheduled examination. Further, from the evidence it appears that the respondent was paying IRBs throughout the period that s. 44 examinations were being scheduled. As such, I fail to see how any s. 44 non-compliance renders IRBs payable, particularly as IRBs were already being paid at the time IEs were being requested and conducted.
36Finally, the applicant raises s. 38(11) of the Schedule and the respondent’s December 3, 2020 denial of ongoing IRBs. In this EOB, the respondent relied on its recently obtained IE reports to deny the applicant’s IRBs after December 3, 2020. The applicant argues that s. 38(11) is a mandatory “shall pay” provision in the case of deficient denials. I am not persuaded by the applicant’s argument.
37Firstly, I find that the respondent’s denial letter dated December 3, 2020 was a clear and unequivocal denial. It expressly referred to and enclosed its IE reports and referenced its assessors’ findings that the applicant did not suffer from a substantial inability to perform the essential tasks of her employment. As such, the reason provided was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision.
38Further, even if the denial was insufficient, I do not find that s. 38(11) would be applicable to the payment of IRBs, as this section relates solely to treatment and assessment plans, and not specified benefits.
39As such, the applicant has not established that IRBs are payable pursuant to s. 36(6), 44(5) or 38(11) of the Schedule.
The applicant has not established entitlement to the outstanding balance of OCF-18 for psychological services
40The applicant submitted an OCF-18 dated March 6, 2020 in the amount of $3,192.25 for psychological treatment. By way of letter dated March 16, 2020, the respondent initially denied the treatment plan, pending the scheduling of a s. 44 assessment. After completion of the scheduled IE, the respondent partially approved the OCF-18 in the amount of $1,995.32. In its EOB dated December 3, 2020, the respondent stated that it would not pay portions of the OCF-18, including planning services or progress reports exceeding $299.22. It further specified the rates it would pay for different treatment providers.
41The applicant has not provided any specific submissions on the outstanding balance in dispute or why the denied portion of the plan is reasonable and necessary. Without any specific submissions from the applicant on the denied amount, I am unable to find that she has met her onus to prove that the remainder of the OCF-18 is reasonable and necessary.
42I further do not find that the applicant has established that the remainder of the OCF-18 is payable as a result of non-compliance with s. 38(8) of the Schedule. Upon review of the respondent’s EOBs, while I find that the initial EOB dated March 16, 2020 was non-compliant with s. 38(8) of the Schedule, the respondent subsequently cured this non-compliance by way of its EOB dated December 3, 2020.
43The initial EOB dated March 16, 2020 provided a boilerplate explanation, and did not provide any specific details about the applicant’s condition or impairment forming the basis for the decision. Nor did the respondent specify what information it did not have, but still required from the applicant. However, the respondent’s subsequent EOB dated December 3, 2020 cured this non-compliance. As previously noted, this EOB was provided after the respondent conducted its s. 44 assessments, and partially approved the OCF-18. It further specified which portions of the OCF-18 it did not approve.
44As such, as per the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000, the respondent would only be liable to pay for the OCF-18 if the services were incurred during the period of non-compliance, from March 16, 2020 to December 3, 2020. Although the applicant argues that the psychological treatment was incurred, from my review of the evidence it does not appear that psychological treatment began to be incurred until December 11, 2020 after the period of non-compliance. As such the applicant has not established that the remainder of the OCF-18 is payable pursuant to s. 38(11) of the Schedule.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
Award
46The applicant sought an award under s. 10 of Regulation 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. As no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
47For the foregoing reasons I find that:
i. The applicant is not entitled to income replacement benefits.
ii. The applicant is not entitled to the OCF-18 in dispute, or interest.
iii. The respondent is not liable to pay an award.
48The application is dismissed.
Released: August 28, 2024
Ulana Pahuta
Adjudicator