Licence Appeal Tribunal File Number: 22-010646/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:
Andres Zabarain
Applicant
and
Coseco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Peter Murray, Counsel
Eric Winkworth, Counsel
For the Respondent:
Daniel M. Himelfarb, Counsel
Caleb Medeiros, Counsel
Court Reporters:
Kyle Climans, Joyce Espinal
Interpreters (Spanish):
Rossana Ibarra, Carmen Smith, Diana Karam
Heard by Videoconference:
January 8-12 & 15-16, 2024
OVERVIEW
1Andres Zabarain (the “Applicant”) was involved in an automobile accident on November 5, 2019, and sought benefits from Coseco Insurance Company (the “Respondent”) 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY MOTIONS
Motions for Summons
2The parties advanced motions at the outset of the hearing. First, the Applicant sought an extension of time to serve a summons upon a previous adjuster to his claim. His position is that the previous adjuster was the person who was responsible for the denial of benefits on his file, and he seeks an extension of time to serve a summons on the witness because his initial summons was rejected due to a minor error and he was unable to serve the corrected summons on the witness during the holidays. The Respondent opposed the motion, submitting that the motion was untimely. It submitted that the Applicant has known who the adjuster on file was at the time of the case conference, when potential witnesses were identified, and that the Applicant should have sought to serve the summons at an earlier date.
3I agreed with the Respondent and denied the Applicant’s motion to extend the deadline to serve a summons. I appreciate that the holidays made it difficult to effect service of the summons in a timely manner however, the holidays are an expected event which the Applicant must plan around accordingly. The Applicant was aware that the Respondent was not producing the previous adjuster and ought to have addressed the issue when this was discovered – not at the outset of the hearing.
4The Respondent then sought an extension of time to serve a summons on a person described as the Applicant’s roommate or girlfriend. It submitted that the summons was sought more than 10 days in advance of the hearing but was initially denied by the Tribunal due to a minor error on the form. The Applicant opposed the motion. He submits that it would be unfair to grant the Respondent an extension of time to serve the summons following a similar denial against him.
5I denied the Respondent’s motion because it was untimely and was previously addressed by the Tribunal. I noted that I agreed with the previous motion decision that the request was untimely and, moreover, there was no material change in circumstances between the initial motion decision and the motion brought at the outset of this hearing.
Motion for additional documents
6The Applicant then brought a motion to obtain more documents from the Respondent. Specifically, he sought additional information from a computer program called Claims Centre, and instruction letters and invoices from an investigation company. He submitted that the adjuster’s log notes were initially disclosed with more redactions and later with less, and that they include redactions for “reserve strategy”, which to the Applicant appears to be a new category of privilege or may be improper. To the Applicant, the Respondent waived litigation privilege by disclosing and relying on the surveillance evidence and he should be given access to the instruction letters and any invoices related to the surveillance evidence. In the end, the Applicant frames this behaviour as contempt in that the Respondent is intentionally not meeting the Order to produce the log notes and surveillance evidence and asked me to refer the matter to the Superior Court or, in the alternative, have the unredacted log notes produced to me for inspection.
7The Respondent first noted that the Applicant’s motion is untimely and done in a way that makes it difficult to respond in a meaningful way. It highlighted that the communications between the parties indicate that the Respondent was willing to provide the requested information. It submitted that it provided all communications between the Respondent and the investigator, that there is no instruction letter to provide, and that the cost of the investigation is not producible because it is covered under litigation privilege. The Respondent highlighted that the Schedule does not limit the amount an insurer can spend on investigations. With respect to the Claims Centre information, it submitted that it is a diary program that the adjuster’s log notes are produced from and that it intends to call an adjuster witness who can speak to the issue. It submits that this is not a case for contempt because there is no intentional withholding of information.
8I concluded that the information from the computer program called Claims Centre and the adjuster’s log notes are the same thing and that there was no order from the production of Claims Centre activities. Instead, the Order was for the production of the adjuster’s log notes, subject to redactions for litigation privilege and reserves – which is what was provided. I acknowledge that the Respondent’s actions while disclosing the log notes, redacting more at first and then paring the redactions back, may have led the Applicant to believe there may be more that could be unredacted. However, I accept the Respondent’s explanations for the redactions and highlight that the adjuster on the file is a witness to the proceeding and the Applicant may test the evidence through a cross examination. Further, it appeared that the term “reserve strategy” is nothing more than a typographical error or an issue regarding semantics considering that the other category is “litigation strategy”. This labelling did not compel me to upset solicitor/client privilege.
9I found that the Respondent is not required to produce the instruction letter to the investigation company and the invoice for services. The Respondent was not ordered to produce these documents and the Applicant has not established their relevance. The Order states that all surveillance evidence, such as documents, recordings, investigation notes, etc. be produced. It appears that they were. I disagree with the Applicant that the instruction letter is relevant to the award claim because I do not see how the documents could be relevant to the unreasonable withholding or delayed payment of benefits. Further, the Respondent will produce an adjuster as a witness to this hearing and the Applicant may test the evidence in that forum. Similarly, the Respondent was not ordered to produce the invoices related to the surveillance obtained and such invoices are irrelevant to the dispute. Unlike the funding cap for assessments, there is nothing in the Schedule that prohibits the Respondent from conducting surveillance in accordance with the applicable laws and there is no evidence that it acted in contravention of applicable law.
10I concluded that a contempt referral pursuant to section 13 of the Statutory Powers Procedure Act (“SPPA”) is not appropriate in this case. The actions identified by the Applicant to not rise to the level to refer the Respondent or counsel for the Respondent for contempt. I am not convinced that the documents were withheld despite orders to produce them.
SUBSEQUENT MOTIONS
Request for recusal
11I reserved my decision on the Applicant’s motions until the second day of the hearing. Upon delivering my reasons, the Applicant asked that I recuse myself from the hearing on account of bias. He submitted that I am biased because I interpreted the Order as narrowly as possible when dealing with his motions for additional documents. Further, counsel for the Applicant submitted that information from his colleague is that there is a small team of adjudicators that are assigned to their firm, with instructions on how to adjudicate their claims, and claims that I am one of these adjudicators.
12The Respondent objected and submitted that there is no evidence to support the Applicant’s claims. Similarly, the Respondent argues that I did not exhibit any bias and notes that the outcome of a motion does not show grounds for a reasonable apprehension of bias.
13I denied the Applicant’s request that I recuse myself of the hearing on account of bias. The threshold for a finding of bias is high and there must be a real likelihood of bias, rather than suspicion: see Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369. My interpretation of the Order and the production requests, or a finding in favour of the Respondent on a point of issue is not evidence of bias but rather an adjudicative function. The Applicant’s bias claims are baseless and unsubstantiated. No evidentiary foundation is present to ground a reasonable apprehension of bias to establish bias.
Request for privileged information
14After I denied the Applicant’s request for recusal, and during another point in the hearing, counsel for the Applicant asked whether I had sought an opinion from anyone with respect to his request. I expressed my view that counsel’s question was inappropriate. There is no merit to this line of inquiry, and it does not warrant a response. I provided my order with reasons for refusing the Applicant’s motion for the production of privileged material, and that order was final.
Second request for recusal
15Following the cross examination of the Applicant’s second witness, Ms. M. Ross, occupational therapist, the Applicant again asked that I recuse myself from the hearing. During the examination, I allowed the Respondent to ask questions of the witness regarding her compliance with the Schedule, as it applied to the treatment and assessment plan she submitted. To the Applicant, this line of questioning was improper because compliance with the Schedule was not a reason to deny the benefit. I allowed the line of questioning because the Respondent is permitted to test the evidence by exploring other issues which may arise during the hearing. The Applicant objected to this, stating that my authority is limited to the Schedule and submitted that I, as the adjudicator, had no intention to limit my authority to the Schedule and will consider reasons that are not part of the Schedule, which would be outside my authority.
16In response, the Respondent highlighted that the Applicant has not provided caselaw to consider with the request and submits that unfavourable interlocutory decisions are not grounds to allege a reasonable apprehension of bias. To the Respondent, interpreting and applying the Schedule and the SPPA does not constitute a reasonable apprehension of bias, and that if I exceed my authority, it should be dealt with on appeal.
17I found no evidence of a reasonable apprehension of bias in my response to the Applicant’s objection. I reiterated that counsel for the Respondent was exploring factors that are outside of the reasons provided at first instance but highlighted the nature of a cross examination and that the Respondent is permitted to explore other issues which may arise during the hearing.
Second motion for an order of contempt
18At the beginning of the fifth day of the hearing, the Applicant made another motion for contempt. He submitted that the Respondent had withheld documents and that the invoices produced by the Respondent indicated that the Respondent has not paid out the value of benefits it purported to have paid, as outlined in a summary of payments made. Counsel for the Applicant advised that motion materials are being compiled and will be submitted and asks that the hearing be adjourned to address this issue.
19The Respondent objected to adjourning the hearing and submitted that this is the same motion and reasons as the Appellant’s first contempt motion, which was ruled on. The Respondent characterized the motion as an attempt to avoid completing the hearing and submitted that it can be addressed at the end of the hearing and that adjourning the hearing is not appropriate.
20I reserved my ruling on the second motion for contempt and advised the parties that I will not stop the hearing and will provide the parties an opportunity to review the motion materials.
21Following this, the Respondent sought to have one of the Applicant’s co-counsel removed from the record because he swore an affidavit related to the last motion and may be a witness to the hearing. The Applicant disagrees that co-counsel would be a witness to the hearing and it would be unfair to require his removal.
22I denied the Respondent’s motion. I concluded that while one of the Applicant’s co-counsel may become a witness at the hearing, he currently is not and his participation in the hearing would not prejudice the Respondent. I reiterated that the motion materials were not before me so any ruling on them or the contents of them would be premature prior to reviewing the materials.
Motion to adjourn hearing, strike response, and refer the matter to the Divisional Court
23At the beginning of the sixth day of the hearing, the Applicant moved to adjourn the hearing, strike the Respondent’s Response, and refer the matter to the Divisional Court for a case of contempt. The Respondent objected to the motion and suggested that it relied on the same arguments as the Applicant’s earlier motions. It noted that it provided the Applicant with a document it created during the hearing in response to allegations that the Respondent failed to pay the amounts it alleged to have paid. The Respondent characterized the new document as a summary of the payments made on the Applicant’s file in an effort to clarify the amounts paid.
24I denied the Applicant’s motion to strike the Response, adjourn the hearing, and refer the matter to the Divisional Court. I found that striking the response, adjourning a matter, and referring a party to Divisional Court for contempt is an extraordinary remedy and I was not convinced that it should occur in this scenario before exhausting the tools immediately available to myself and the parties. Further, I reminded the Applicant that it is possible the issue supports his claim for an award and/or costs and advised that he could make submissions on the weight of evidence during closing arguments.
Motion to exclude witness Dr. Getahun
25The Respondent sought to exclude Dr. Getahun’s evidence at the hearing. It submits that Dr. Getahun’s participation was unclear until just prior to the hearing, that there is no evidence to confirm that the report was served before the disclosure deadline provided by the Tribunal, and because the report was written for the purposes of a tort claim. On the latter note, the Respondent characterized it as an attempt to cherry pick evidence and submitted that, in the alternative to excluding Dr. Getahun’s evidence, that all tort reports be produced for the hearing.
26In response, the Applicant noted that Dr. Getahun was on the anticipated witness list, and the Respondent was aware of his involvement since 2022. Further, counsel for the Applicant noted that the Respondent is the insurer of the tort defendant and suggested that the reports can be obtained from the tort file. Nevertheless, counsel for the Applicant agreed to produce all the medical reports related to the tort matter.
27I appreciate counsel for the Applicant’s agreement to provide all the medical reports from the tort matter and found that to be the best remedy for the issue. As a result, I allowed Dr. Getahun’s evidence be included in the hearing and noted that any issue with the veracity of the reports can go to the weight of the evidence and be addressed in closing submissions.
Post-Hearing Conduct
28In addition to the above, I must also address the fact that counsel for the Applicant emailed the Tribunal after closing submissions were made and after the hearing concluded. In the email, the Applicant made further submissions and included additional evidence. The Respondent replied to the email to note its objection to the filing of additional evidence and offered to make submissions on the issue, if required.
29I have not considered the Applicant’s post-hearing email – the submissions in it and the document(s) attached to it – on the grounds that it was submitted improperly and is untimely.
30While the Applicant is free to file motions following closing submissions, he must do so in accordance with the Rules, which includes provisions outlining the content and service requirements for motions. Here, the Applicant has failed to comply with any of those requirements and this, alone, is sufficient to dismiss the Applicant’s motion without seeking input from the Respondent.
ISSUES
31The issues in dispute are:
i. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from May 13, 2021 to-date and ongoing?
ii. Is the Applicant entitled to medical benefits proposed as follows:
$1,632.00 for a physiotherapy treatment plan by F. Ramirez, dated July 10, 2020;
$2,200.00 for a psychological assessment plan by Critical Trauma Therapy, dated April 5, 2021;
$3,492.00 for an occupational therapy plan by Critical Trauma Therapy, dated April 5, 2021;
$2,135.54 for a physiotherapy treatment plan by F. Ramirez, dated April 16, 2021;
$3,831.19 for an occupational therapy plan by Innovative Occupational Therapy, dated August 3, 2021;
$3,862.95 for an occupational therapy plan by Innovative Occupational Therapy, dated December 22, 2021;
$3,830.95 for an occupational therapy plan by Innovative Occupational Therapy, dated December 22, 2021;
$2,075.00 for an MRI proposed by MRI Marketing and Business Developments Inc, in a plan dated March 17, 2022;
$2,200.00 for a psychological assessment proposed by Hamilton Health Sciences Centre, in a plan dated May 21, 2021;
$2,200.00 for a neurocognitive assessment proposed by Hamilton Health Sciences Centre, in a plan dated May 21, 2021;
$6,200.00 for a situational and functional capacity evaluation proposed by Ross Rehabilitation in a plan dated July 5, 2021; and
$2,200.00 for a physiatry assessment proposed by Dr. Unarket in a plan dated June 17, 2022?
iii. Is the Applicant entitled to lost educational expenses in the amount of $190.00, submitted via OCF-6 dated July 20, 2020?
iv. Is the Applicant entitled to a medical benefit in the amount of $18,000.00 for a bicycle, submitted via OCF-6 dated March 7, 2020?
v. Is the Respondent entitled to a repayment of benefits in the amount of $10,513.56 relating to IRBs paid during the period from April 6, 2020 to November 1, 2021?
vi. Is interest applicable?
RESULT
32I find that the Applicant is not entitled to IRBs as claimed.
33At the start of the hearing, the Applicant withdrew his claim for a bicycle, the issue is no longer in dispute.
34The Applicant has not demonstrated that the treatment and assessment plans are reasonable and necessary as a result of the accident. He is not entitled to payment for them, nor interest.
35The Applicant is not entitled to lost educational expenses as claimed, nor interest.
36The Respondent is entitled to a repayment of IRBs in the amount of $10,513.56, plus interest pursuant to section 52(5) of the Schedule.
BACKGROUND
37The Applicant was struck by vehicle while he was out cycling and has no recollection of the accident. He sustained fractures to his hip and right 5th digit metacarpal as a result of the collision. The Applicant’s hip fracture required surgical intervention which included internal fixation.
38The Applicant was studying music in Ontario as an international student at the time of the accident and did not have OHIP coverage. The lack of OHIP coverage, combined with his surgeries and hospital stay, led the Applicant to consume accident benefits at a much higher rate than typical accident victims who have OHIP coverage.
39The Applicant has exhausted the non-catastrophic impairment funding provided by his policy. His application for a determination of catastrophic impairment is pending and he currently does not have access to funding above the non-catastrophic funding limits but seeks a finding that the medical and rehabilitation benefits claimed are reasonable and necessary as a result of the accident and that he is entitled to the benefits, subject to the funding limit.
ANALYSIS
Income Replacement Benefits
40Pursuant to section 5 of the Schedule, IRBs are payable to the Applicant if he can demonstrate on a balance of probabilities that he is unable to perform the essential tasks of his employment as a result of accident-related impairments within 104 weeks of the accident (“the pre-104 test”).
41Pursuant to section 6(2)(b) of the Schedule, the Applicant may be entitled to IRBs, following the first 104 weeks after the accident, if he can demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience as a result of accident-related impairments (“the post-104 test”). The period for which the Applicant seeks IRBs straddles both the pre- and post-104 week periods.
42Pursuant to section 4(6) of the Schedule, IRBs are calculated based on the insured person’s income as it is reported to the jurisdiction, if that jurisdiction imposes a tax calculated by reference to income.
The Applicant’s pre-accident employment and income is unclear
43The Applicant claims that he was employed as a lawyer at his mother’s construction company and as a freelance musician prior to the accident, but these claims are poorly substantiated. His testimony was that he worked as a lawyer during the week and earned cash as a drummer on weekends. The Applicant testified that, as a lawyer, he was required to work at a computer or stand in court for periods of up to eight hours. During the hearing, the Applicant’s mother testified that he was not required to work a certain number of hours per week.
44I find no compelling evidence demonstrating that the Applicant was employed or self-employed as a drummer. Other than his own testimony, the Applicant has no evidence that he earned any income as a drummer. He provided no business or tax records to demonstrate his earnings leading up to and at the time of the accident that substantiate his claim. Nothing in the Applicant’s testimony or evidence causes me to conclude that he earned a taxable income from drumming. While his mother suggested that he earned an income from drumming, her testimony was unpersuasive because she could not speak to the amount that was earned but, instead, testified that the information is available in the Applicant’s income tax reports, which were never produced for this hearing. Consequently, I find that the Applicant’s ability to drum is something that should not be considered when assessing whether he is entitled to IRBs as there is no compelling evidence demonstrating he was employed as a drummer during the 52 weeks preceding the accident.
45The Applicant never provided any credentials to substantiate his employment as a lawyer in Colombia. Typically, employment relationships involving family members are scrutinized with greater detail. This does not disqualify the Applicant from receiving IRBs however, the non-arm’s length relationship with his employer invites additional scrutiny. Nevertheless, he testified that there is no government entity regulating lawyers, rather a group of lawyers with “nothing else to do” who got together and created a database of the lawyers in Colombia. He advised that he was not in the database because it is a “waste of time” and that he was not required to register with the database before practicing law in Colombia. Here, the Applicant has never provided any objective or independent evidence that persuasively demonstrates that he was employed as a lawyer prior to the accident. The documents he provided originate from either the Applicant or his mother and none are from an independent source such as a government entity which would withstand additional scrutiny.
46The Applicant’s employment records are limited and none of them pre-date the accident. The OCF-2, dated May 25, 2020, completed by the Applicant and signed by his mother as the manager of the company, states that he was employed as a lawyer, earning $54,000.000.00 Colombian Pesos annually. The document states that the Applicant is employed as a “lawyer/legal advice” and that his essential task of employment is making contracts. A notarized document, dated July 2, 2020, states that the Applicant’s compensation at his mother’s company was $4,500,000.00 Colombian Pesos per month for the period from February 13, 2017 to August 15, 2019. Another notarized documented, dated June 6, 2021, states that the Applicant earned $3,000.000.00 Colombian Pesos per month for the period from April 6, 2020 to-date. However, during her testimony the Applicant’s mother stated that the dates on the notarized document, which is in her spoken language of Spanish and was signed by her, must be erroneous. Given the origin of the documents, the fact that the documents post-date the accident, and the discrepancy regarding the dates, I find the evidence to be unpersuasive.
47The Applicant appears to also be a partner in his mother’s construction company. His mother testified that he was a partner of the company and shared in the profits and losses of the company. If true, this would impact the Applicant’s quantum of an IRB, depending on the income reported as a partner of the company as the Respondent is permitted to deduct amounts related to post-accident income from the amount of IRB payable, pursuant to section 7(3) of the Schedule. At the least, this information invites additional scrutiny in calculating the quantum of the Applicant’s income loss, if any, because it indicates that the Applicant failed to disclose his sources of income from employment or self-employment. Section 4(5) of the Schedule provides that a person’s income before an accident shall be determined by the relevant government or agency under the legislation of another jurisdiction that imposes a tax calculated by reference to income. In the Applicant’s case, he has provided no independent information regarding the income he reported in Colombia. Considering the uncertainty regarding the Applicant’s income, both before and after the accident, it follows that the Applicant has not met his onus to demonstrate his entitlement to IRBs.
Accountant’s report
48The Applicant suggests that the Respondent failed to properly adjust his claim because it never advised him that he was entitled to funding for an accountant’s report. Yet, he directs me to no authority to support this claim. The Respondent submits that entitlement to an accountant’s report is not a benefit, and it is not obliged to advise the Applicant of it. In the alternative, it submits that failing to advise the Applicant that he is entitled to funding for an accountant’s report does not make IRBs payable and that the Applicant must still establish that he is entitled to the benefit and an accountant’s report only speaks to the quantum of the benefit.
49I find that the Respondent is not obliged to advise the Applicant that he is entitled to funding for the production of an accountant’s report to determine the quantum of his IRBs. Pursuant to section 7(4) of the Schedule, the Respondent shall pay an expense incurred by the Applicant for the preparation of a report for the purpose of calculating his income from employment and self employment. Pursuant to section 7(5), the Respondent is not required to pay more than $2,500.00 + HST for the report.
50I further find that, while the Respondent ought to have informed the Applicant that he is entitled to funding for an accountant’s report, the Applicant is not entitled to IRBs due to this issue. I agree with the Applicant that informing him about the ability to obtain an accountant’s report generally falls within the Respondent’s obligation to provide the Applicant with information to assist him in applying for benefits, pursuant to section 32(2)(c) of the Schedule. However, there is nothing in the Schedule, nor in the caselaw provided, that suggests that this inaction entitles the Applicant to IRBs as claimed. This is unlike the other notification provisions outlined in the Schedule. For example, section 38(11) clearly state that an insured person is entitled to the goods and services incurred during a period of non-compliance by an insurer. There is no such provision for claiming entitlement to IRBs and I have no authority to impose such a provision.
51All the above-noted discrepancies surrounding the Applicant’s employment, potential self-employment, and taxable income are sufficient to conclude that the Applicant has not met his onus to establish that he qualifies for IRBs. However, in the event I am wrong on this front, I will proceed to assess the Applicant’s entitlement based on his disability.
The Applicant has not demonstrated that he is disabled from working during the period of claim
52The Applicant has not provided any medical evidence to support his claim that he is disabled from working as a lawyer or in the legal field for the period from May 13, 2021 to-date.
The disability certificates are uncompelling
53The disability certificate dated December 3, 2019, completed by nurse practitioner B. Zywine, supports the Applicant’s claim for an estimated period of 9-12 weeks, or until February 25, 2020. This document is consistent with the overall narrative that the Applicant was able to return to work, sometime in early 2020.
54I place no weight on the disability certificate dated June 19, 2020, completed by K. Amaya R., who reports to be a physician in Colombia. The document holds no weight because it is inconsistent with the Applicant’s medical record and the other information in document is unclear. The injuries listed in this disability certificate include hip fracture and characterizes his metacarpal fracture as a fracture at wrist and hand level, which on their own are unproblematic. However, the document also incorrectly states that the Applicant sustained multiple fractures of his forearm, where there is no evidence of multiple forearm fractures. This statement alone, in light of the evidence before me, is significant enough to discount the weight of the document entirely. Further, the document notes that the Applicant is unable to run, jump, and cook, and is unable to walk or move normally. However, no medical records were provided to support the assertions in this disability certificate. Considering this, and the fact that the document lists injuries that the Applicant never sustained, I find that the disability certificate holds no weight.
55I find the disability certificate completed by occupational therapist, M. Nehal, dated May 31, 2021 to be uncompelling evidence when determining the Applicant’s entitlement to IRBs. The document is uncompelling because it is not accompanied by any clinical notes and records in order to permit the reader to determine the reasons for the disability reported in the document. The reader is unable to determine what the Applicant is unable to do and how his accident-related injuries prevent him from completing his essential tasks of employment. The document also notes that the Applicant is able to return to work on modified duties and hours for two days a week, two to three hours per day, which is inconsistent to the testimony of the Applicant and his mother, who both reported that the Applicant returned to work as a lawyer in Colombia for 2020 only.
56The disability certificate completed by occupational therapist, L. Wainer, dated January 31, 2022, is unpersuasive. This disability certificate is also provided without any CNRs which would shed light on the reasons why occupational therapist Wainer determined that the Applicant was unable to complete the essential tasks of his employment as a lawyer. The document provides no information on the Applicant’s tasks of employment, nor does it provide any information on how the Applicant’s accident-related injuries impair him from working.
57The submission of a disability certificate initiates the Applicant’s application for IRBs. However, the disability certificates ought to be accompanied with evidence to support the claim when the extent of a person’s disability is unclear. Here, the Applicant’s employment relationship is a non-arm’s length relationship, which warrants additional scrutiny and his evidence regarding his level of disability following the accident is inconsistent. Accordingly, I find that the disability certificates submitted by the Applicant are unpersuasive evidence in favour of his claim for IRBs.
No other compelling medical evidence of disability
58The Applicant has provided no other compelling medical evidence to clearly indicate that he is unable to work as a result of the accident.
59Occupational therapist M. Ross testified at the hearing and explained that her proposal for a vocational assessment was based on the significant injuries the Applicant suffered as a result of the accident and the other information in his medical records. However, occupational therapist Ross’ recommendation is unpersuasive in light of her confirmation that she never spoke with, met with, or examined the Applicant. Moreover, occupational therapist Ross testified that the focus on the assessment she proposed would be on the Applicant’s ability to drum because that is what he was studying at the time of the accident. I find this focus to be misguided considering that the Applicant was most likely employed in the legal field leading up to and at the time of the accident. As a result, I give no weight to the opinion of occupational therapist Ross.
60The Applicant’s physiotherapist, H. Jones testified that from a physical perspective he could return to sedentary employment. Physiotherapist Jones last met with the Applicant in January 2020 and, at that time, expected the Applicant to be able to return to sedentary employment, which includes prolonged sitting. Physiotherapist Jones deferred comment on any mental and behavioural impairments as such is beyond the scope of a physiotherapist.
61I give no weight to the testimony of Dr. B. Fulton, neuropsychologist, as he never met with, spoke to, or examined the Applicant. Dr. Fulton testified at the hearing that he endorsed the Applicant’s need for a neuropsychological assessment because the Applicant sustained a head injury with amnesia and ongoing symptoms, which led Dr. Fulton to conclude that most of the Applicant’s problems were going to be in the domain of neuropsychology. However, Dr. Fulton confirmed that the entirety of his opinion is derived from a combination of the Applicant’s medical record and a review of a psychometrist’s report, which appears to have been based on an email exchange with the Applicant. In fact, there is no evidence before me that indicates that the psychometrist or Dr. Fulton ever spoke with the Applicant in any fashion, be it in person, on the telephone, or via video.
62I find the report by Dr. T. Getahun, orthopaedic surgeon, dated January 5, 2022 to be unpersuasive when determining whether the Applicant suffers a substantial inability to complete the essential tasks as an in-house lawyer. Dr. Getahun’s testimony and report are inconsistent – the report notes that the Applicant’s cognitive and mental and behavioural symptomology adversely affect his ability to function as a lawyer. Yet, in testimony Dr. Getahun stated that he had no notes to suggest that the Applicant had difficult focusing or had cognitive issues. In testimony Dr. Getahun highlighted that the Applicant had a somewhat tender low back and was unable to straighten his pinky finger but had symmetrical grip strength. I find that this information is insufficient to find that the Applicant suffers from a substantial or complete inability to complete his essential tasks working in the legal field.
63Dr. Getahun’s report is inconsistent with the Applicant’s and his mother’s testimony, who stated that the Applicant stopped working as a lawyer sometime in early 2020. Whereas the report states that the Applicant returned to work as a lawyer about a year and a half following the accident, but stopped that work when he started a new music program in the fall of 2021. Similarly, the report states that the Applicant attempted to work in the kitchen at a restaurant but suggest that he couldn’t continue with it due to an inability to engage in the prolonged standing and walking required for the job. However, the Applicant testified that he was unable to continue work in the restaurants mostly because he was having arguments with co-workers and arriving late.
64Dr. S. Blitzer, physician, testified but provided no meaningful evidence that would lead me to conclude that the Applicant suffers from a complete inability to work in the legal industry. Dr. Blitzer’s involvement in the Applicant’s recovery is limited to completing an application for a determination of catastrophic impairment with a two-page addendum. The catastrophic impairment application and report was based on a document review and a 15-to-20-minute videocall with the Applicant. It was not a very detailed assessment by Dr. Blitzer’s own account. The application and addendum, both dated August 18, 2022, do not included an index of the documents reviewed, thus I am unable to determine the basis for Dr. Blitzer’s findings, which is important in light of the inconsistent evidence and reporting.
65Lastly, the psychovocational assessment report by Dr. I. Valentin, psychologist, dated July 4, 2022 is relevant, but not persuasive enough for me to overlook that the Applicant has failed to quantify his claim for IRBs. The Applicant was referred to Dr. Valentin by his counsel – not another medical professional, the report is for tort purposes, and Dr. Valentin was not called as a witness to test the evidence. Dr. Valentin had limited access to the Applicant’s medical record and never reviewed any contemporaneous documents other than Dr. Getahun’s report dated January 5, 2022. Dr. Valentin’s report notes that the Applicant’s impairments affect his ability to work, but the report does not give enough detail to determine that his impairments substantially or completely impair him from working in the legal industry. Dr. Valentin’s opinion is undermined by comments outside of the scope of a psychologist. For example, the report notes that the Applicant’s dominant hand is significantly impaired when it comes to motor abilities and processing speed however, Dr. Getahun, an orthopaedic surgeon who is more qualified to comment of physical injuries, found a minor deformity and a lag at the PIP joint. Dr. Getahun also noted grossly symmetrical grip strength and testified that it was expected that the Applicant could grip and pick things up, contrary to Dr. Valentin’s report regarding the Applicant’s hand.
66Overall, there is insufficient evidence to establish that the Applicant is physically impaired from completing the essential tasks of employment as an in-house lawyer. Similarly, the evidence does not persuade me to conclude that he is impaired from working in the legal field due to mental and behavioural impairments, or a combination of both physical and psychological impairments. This conclusion is coupled with the fact that the Applicant has failed to establish his pre-accident employment status and income in order to calculate an income loss, if any.
67In addition, I note that the Applicant engaged in employment following the accident but delayed disclosing this fact to the Respondent and never disclosed some of his post-accident earnings, which the Respondent is permitted to deduct from any IRBs payable. The OCF-3, dated May 31, 2021 and a letter from the Applicant’s counsel to the Respondent dated July 29, 2021 noted that the Applicant returned to work after April 6, 2020 and that his post-accident income was approximately $960.00 per month. The Applicant also testified that he attempted to work in the back end of several restaurants following his return to Canada in 2021 but did not sustain the employment due to anger and irritability, which he attributes to the subject accident. He never provided any information regarding the income earned through this employment. Therefore, even if the Applicant met the disability test, which I have found he had not met, the Respondent remains unable to determine its liability considering the Applicant has not disclosed the quantum of his post-accident earnings.
Medical and rehabilitation benefits in dispute
68The Respondent has paid medical and rehabilitation benefits totalling $65,000.00, the funding limit for a non-minor, non-catastrophic impairment. The Applicant has not been determined to be catastrophically impaired as a result of the accident and is therefore not entitled to more than the $65,000.00 funding limit.
69However, of the Applicant submits that I consider Tomec v Economical Mutual Insurance Company, 2019 ONCA 839 (“Tomec”). To the Applicant, I must address whether the benefits are reasonable and necessary as a result of the accident, considering that it is possible that the Applicant will later be deemed to have sustained a catastrophic impairment, which would then remove the only barrier to funding put in place by the Respondent.
70I find that this is not a case to apply the principles of Tomec. Tomec addressed the interplay between a pre-emptive denial of benefits and the discoverability of entitlement to those benefits, in keeping with the consumer protection mandate of the Schedule. The court concluded that the limitation clock does not start following a pre-emptive denial of a benefit when the denial occurs before the insured person may be entitled to the benefit. The effect of Tomec is that the limitation clock does not start until an insured persons entitlement to a benefit crystalizes. The limitation clock is not in play here. It is the funding limit which prevents the Applicant from receiving benefits and it is not whether his access to the benefits have crystalized. Accordingly, there is no application of Tomec in this matter and it is unnecessary to conduct an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary since the $65,000 funding limit has been exhausted.
$190.00 for lost educational expenses
71I find that the Applicant is not entitled to $190.00 in lost educational expenses because the expenses he claims entitlement to are not captured under section 21 of the Schedule.
72The Applicant may be entitled to up to $15,000.00 in lost educational expenses incurred by him or on his behalf if at the time of the accident he was enrolled in post-secondary education and is unable to continue his program as a result of accident-related injuries. “lost educational expenses” means expenses incurred before the accident for tuition, books, equipment or room and board in respect of the program term or program year in which the insured person was enrolled at the time of the accident, if the expenses are related to the program that the insured person is unable to continue.
73The Applicant claims entitlement to a $190.00 health insurance fee he incurred with his college. He submits that he was refunded his tuition as a result of being unable to continue with his studies but was unable to recoup the health insurance fee.
74I find that the health insurance fee is not captured in the lost educational expenses provision outlined in section 21 of the Schedule. The Applicant has not demonstrated that the health insurance fee is captured in the categories of “tuition”, “books”, “equipment”, or “room and board”. Accordingly, he has not met his onus to demonstrate entitlement to lost educational expenses and I am unable to award payment to his as a result.
Interest
75Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no payments went overdue and the Applicant is not entitled to interest.
Award
76The applicant sought an award under section 10 of Regulation 664. Under section 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. The Applicant frames the Respondent as stubborn and inflexible, noting that it failed to accommodate him by providing information in Spanish, rather than English, and by paying his hospital bills without being directed to do so. He further submits that the Respondent asked numerous questions of the Applicant during testimony at the hearing and submits that it is unfair for the Respondent to ask questions outside of the scope of the denials. The Respondent submits that an award is not payable simply because an insurer made an incorrect decision. Rather, it submits that it paid benefits at a time when it didn’t have all the information and that there is no evidence to suggest that its actions were stubborn or imprudent.
77Having concluded that no benefits are payable, it follows that I find that no award is payable because no benefits have been unreasonable withheld or delayed.
78The Applicant is not entitled to an award based on a lack of accommodation with respect to his proficiency in the English language. Throughout the hearing, counsel for the Applicant highlighted that English is not the Applicant’s first language and regularly suggested that the Respondent failed to accommodate him in this regard. I find this argument to be frivolous as the Applicant has demonstrated that he does not require accommodation in the form of interpretation services. None of the Applicant’s medical assessors used the services of an interpreter when conducting assessments with the Applicant. Likewise, all the medical professionals who testified at the hearing confirmed that the Applicant spoke English during the assessments and that they had no concern regarding their ability to communicate with the Applicant. The Applicant’s proficiency in the English language was also on display during the hearing – he corrected the interpretation of his testimony on more than one occasion.
79The Applicant suggests that the Respondent has failed to properly account for the spending on his claim and submits that it should have sought from the Applicant what hospital expenses would be payable beyond 5 days following the accident. He further submits that the Respondent’s actions of accepting the hospital expenses after 5 business days following the accident, it has tacitly advised the Applicant that expenses would be considered outside of the proper procedure for claiming benefits and that any denials based on a lack of treatment and assessment plan. The Applicant submits that the onus rests with the Respondent when it comes to demonstrating that payments were made in accordance with the Schedule. The Applicant also highlights that the Respondent often would seek documents instead of information when adjusting his claim. He seems to suggest that the Respondent ought to have contacted the Applicant and asked for information instead of documents.
80The Respondent contends that this is not a case for an award. It submits that an insurer is not held to a standard of perfection and that there is no evidence of stubborn or imprudent behaviour. Rather, it submits, it paid benefits to the funding limit despite not having all the information required to adjust the Applicant’s claim. It further submits that paying hospital expenses beyond the 5-day mark in an emergency situation is discretionary. It highlights that there is no evidence to suggest that paying the hospital expenses was wrong or contrary to the Applicant’s wishes – the Applicant or his counsel never advised the Respondent of this and that there is no evidence to support the Applicant on this issue. Further, it submits that there is no sign that the Applicant’s treatment was limited by any errors it committed and maintains that it committed none.
81I agree with the Respondent and find that paying the Applicant’s hospital expenses beyond the 5-day mark is not grounds for an award. Paying for the Applicant’s hospital stay during the acute phase of his recovery following a hip fracture and loss of consciousness is not unreasonable. While I agree that paying out to the hospital what was essentially the balance of the funding available to the Applicant may have impacted the Applicant ability to seek other benefits, it was not an unreasonable action given the circumstances. Further, at anytime following his hospital stay the Applicant could have requested that the payments be directed somewhere else instead of the hospital, but he never did so. Considering this, I find that the Respondent’s actions, or inaction, as they related to payments made to the hospital does not constitute frivolous, stubborn, or imprudent behaviour for which to render an award payable.
REPAYMENT
82I find that the Respondent is entitled to a repayment of the IRBs paid to-date, pursuant to section 52 of the Schedule, totalling $10,513.56.
83The Respondent submitted that the Applicant has a positive obligation to report any post-accident income earned. It noted that the Applicant never called into evidence any information to clarify his post-accident earnings. It highlights that it only discovered that the Applicant returned to work more than a year after he did so. The Respondent highlights the absurdity in paying the Applicant an IRB after he returned to work as an in-house lawyer without advising the Respondent of the return and failing to report his post-accident income.
84In response, the Applicant submitted that he never misrepresented his return-to-work and replied to the Respondent at the first instance it sought information pertaining to his claim for IRBs. He submitted that the Respondent failed to request any information pertaining to his return to work and suggested that it is the Respondent’s responsibility to continually request information pertaining to his return to work. He further states that his post accident IRB entitlement is probably understated, considering his pre-accident earnings, and that he was unaware that he could hire an accountant to help calculate the quantum of his IRBs.
85Section 52(1)(a) of the Schedule provides that a person is liable to repay a benefit to an insurer if the benefit is paid as a result of an error or wilful misrepresentation or fraud. In order to claim a repayment, the insurer is required to notify the insured person of the amount that they are required to pay, pursuant to section 52(2)(a).
86I find that the Applicant committed wilful misrepresentation by failing to disclose that he returned to his pre-accident employment and failing to disclose all his post-accident earnings. The Applicant’s post-accident income documents would confirm or deny whether he earned post accident income and clarify what, if any, the quantum of his weekly benefit entitlement. At the case conference for this matter, the Applicant was ordered to produce his updated notice of assessment or other income related documents. Yet, he has not produced any objective documents, such as tax filings, that confirm his post-accident income. I draw an adverse inference that the documents are detrimental to the Applicant’s case because these documents are readily available to him and would easily clarify his post-accident earnings. Virtually all the evidence before me indicates that the Applicant returned to work at his mother’s company following the accident. Further, there is ancillary evidence in the form of his mother’s testimony, that the Applicant holds ownership of the company, which would impact the quantum of the Applicant’s eligibility for IRBs, if any. The Respondent is permitted to deduct the Applicant’s post-accident earnings from any IRBs payable and his failure to provide the information draws an adverse inference and is fatal to his claim for IRBs.
87As outlined in 17-00272 v T.T., 2017 CanLII 87539 (ON LAT), which echoes the findings in Michalowski (199 ONFSCDRS 129), silence or a failure to report constitutes wilful misrepresentation. Thus, the Applicant has an obligation to inform the Respondent of any changes in circumstances pertaining to his claim for IRBs. The Applicant returned to work in what appears to be a similar capacity and similar pay as his pre-accident employment, yet he never relayed this information to the insurer until more than a year later. While the Applicant was upfront about his return to work once probed by the Respondent, this does not override the fact that the Applicant continued to claim, and eventually received, IRBs during a period in which he returned to work, as confirmed in his and his mother’s testimony. As a result, I find that the Applicant committed wilful misrepresentation when he returned to work at his mother’s construction company in Colombia, without reporting that income to the Respondent.
88I return to the comments from the Applicant’s mother regarding the Applicant’s ownership of the company and note that it implies that the Applicant has misrepresented his employment status at the time of the accident and throughout his claim for IRBs. As noted previously, the Applicant’s mother testified that the Applicant is a part owner of the company, but the Applicant never disclosed this when initiating or during his claim for IRBs. The prolonged withholding of information invites an adverse inference because it suggests that disclosing his corporate ownership over the company would be harmful to the Applicant’s claim.
89I find that the Respondent overpaid IRBs to the Applicant in the amount of $10,513.56. The Respondent paid $19,270.16 in IRBs to the Applicant but determined that the Applicant’s entitlement to IRBs totalled $8,613.08 once the disclosed post-accident income was deducted from the amount payable. As a result, the Respondent sought a repayment of $10,657.08. A repayment schedule was implemented, and the Respondent recovered $143.52 before stopping IRB payments. To-date, the Applicant has provided no report or evidence to counter the Respondent’s calculation. I accept the Respondent’s calculations in light of no evidence to the contrary.
90The repayment request is compliant with section 52(2) the Schedule. The letter from the Respondent to the Applicant, dated October 12, 2021, outlines the Respondent’s case for repayment and states that, following the deduction made in the final IRB payment to be made on October 25, 2021, the overpayment of IRBs is calculated to be $10,513.56 and it asks for repayment of those funds. The letter also invites counsel for the Applicant to contact it to arrange for payment of a lump sum or a repayment schedule. The Applicant has not directed me to any ambiguous language in the letter that would upset the overall message of the notice – that IRBs were overpaid and that a repayment is being requested.
91Lastly, I note that the Respondent is permitted to seek a repayment of IRBs paid beyond 12 months because the Applicant wilfully misrepresented his employment status while claiming IRBs. Section 52(3) of the Schedule limits the period for which the Respondent can claim a repayment to be 12 months unless it was originally paid to the person as a result of wilful misrepresentation or fraud. Having determined that the Applicant’s failure to disclose his return to work constitutes a wilful misrepresentation, it follows that the Respondent is permitted to seek a repayment for benefits paid beyond 12 months prior to the request.
92Having found that the Respondent is entitled to a repayment of IRBs, it follows that it is also entitled to interest pursuant to section 52(5) of the Schedule.
COSTS
93In opening statements, the Applicant remarked that he would be seeking costs from the Respondent and counsel for the Respondent. However, the issue was not substantially addressed in closing submissions. The Applicant never provided any reasons or evidence in support of his case for costs against either the Respondent, or counsel for the Respondent, as he submitted would be the case at the outset of the hearing. In fact, neither party addressed costs in closing statements, despite mention of the issue during opening statements.
94Pursuant to Rule 19.1 of the Rules, costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 stipulates that I consider all relevant factors when determining whether costs should be awarded, including: the seriousness of the misconduct, whether it was a breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, the prejudice to the other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal. Rule 19.5 also permits me the authority to deny or grant the request for costs or award a different amount.
95As no party provided clear reasons for me to award costs, it follows that no party has established that the other party acted in a manner which warrants an award of costs.
CONCLUSION AND ORDER
96The Applicant has not met his onus to demonstrate that he is entitled to IRBs as claimed, nor interest.
97The Applicant has exhausted the non-minor and non-catastrophic impairment funding limit for medical and rehabilitation benefits. It follows that the Respondent is not liable to pay for the treatment and assessment plans.
98The Applicant is not entitled to $190.00 for lost educational expenses.
99The Respondent is entitled to a repayment of IRBs in the amount of $10,513.56, plus interest pursuant to section 52(5) of the Schedule.
Released: September 12, 2024
Brian Norris
Adjudicator