Licence Appeal Tribunal File Number: 22-006618/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:
Aida Zeinali
Applicant
and
Government of the Province of British Columbia
Respondent
DECISION
ADJUDICATOR:
Taivi Lobu
APPEARANCES:
For the Applicant:
Michael Switzer, Counsel (July 31, 2023)
Mikolaj T Grodzki, Counsel (August 1 & 2, 2023)
For the Respondent:
Debbie Orth, Counsel
HEARD: by Videoconference:
July 31, August 1, August 2, 2023
OVERVIEW
1Aida Zeinali, the applicant while resident of British Columbia, was involved in an automobile accident in Ontario on December 21, 2011. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the Government of the Province of British Columbia, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $320.00 per week for the period of September 6, 2013 and ongoing?
ii. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to non-earner benefits.
4As there are no withheld or delayed payments, Neither an award or interest is payable.
PRELIMINARY ISSUE
5As a preliminary matter, the applicant sought an order declaring the respondent’s notice to the applicant which denied entitlement to the non-earner benefit did not comply with section 37(4) of the Schedule. The respondent took the position that the notice denying entitlement to the benefit was valid.
6I was not directed to any statutory authority to make a declaration apart from a determination of entitlement to a benefit. I have therefore addressed the submissions regarding the validity of section 37(4) notice in the course of addressing the applicant’s entitlement to the non-earner benefit.
Procedural MATTERS
Mr. Hartman’s evidence is not excluded
7The applicant filed a motion in advance of the hearing to exclude oral and written documentary evidence of Mr. Sven Hartman, occupational therapist of Vista Disability Management Inc., including in-home assessment reports, all written correspondence, emails and all OCF forms completed by Mr. Hartman.
8While the applicant had relied on Mr. Hartman in relation to her accident benefits claim, including the completion of an OCF-3 disability certificate (disability certificate) and treatment, the applicant alleged that that Mr. Hartman was in fact acting as an assessor under section 44 of the Schedule when he conducted in-home assessments of the applicant and when, in November 2013, he completed a disability certificate which the respondent relied upon to terminate the applicant’s entitlement to non-earner benefits. The applicant argued that there was fundamental confusion in Mr. Hartman’s role and as a result evidence from him was tainted and should be excluded from the hearing.
9The respondent took the position that throughout Mr. Hartman’s involvement in this matter, he was a treating health professional for the applicant and that his evidence was relevant for a determination of the issues.
10I agreed to hear the evidence of Mr. Hartman. Under section 15(1) of the Statutory Powers Procedure Act (SPPA), I may admit any evidence relevant to the subject matter of the proceeding. The applicant had not pointed to any statutory provision or reason of privilege that would bar the admission of his evidence under section 15(2) or (3) of the SPPA. As a health professional who conducted the assessments of the applicant and completed disability certificates relating to the benefit at issue, the evidence of Mr. Hartman is relevant to determining the issues in dispute. Accordingly, I admitted the evidence of Mr. Hartman.
Adjuster’s log notes are admitted
11I exercised my discretion under Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure, October 2, 2017 (the Rules) to permit the late filing of the log notes of Ms. Shannon Crichton. Ms. Crichton was the adjuster who had carriage of the claim from the time that the respondent took priority over the claim in 2012 until 2015.
12During the above motion for the exclusion of the evidence of Mr. Hartman, the respondent sought to rely upon adjuster’s log notes of Ms. Crichton. Counsel for the applicant objected to this, submitting that the log notes had not been produced in a timely manner. Counsel for the applicant submitted that according to the case conference report and order, hearing documents were to be filed 30 days before the hearing, but the log notes were only provided to him within the week before the start of the hearing, at a time when he was unavailable to review them.
13The respondent took the position that the log notes have been available since the application was filed, had only been requested by the applicant two weeks before the hearing, and were produced to the applicant one week after having been requested. The respondent submitted that this was a reasonable time frame in relation to the applicant’s request, given that the log notes had to be redacted for privilege and reserves.
14The respondent did confirm, however, that the log notes which it was seeking to rely upon had not been included in the motion materials filed. Accordingly, the log notes were not admitted for the hearing of the motion.
15On the second day of the hearing, the log notes again became an issue during the testimony of Ms. Crichton, claims adjuster for the respondent. The applicant objected to Ms. Crichton relying upon her log notes during testimony, submitting that it was unfair for Ms. Crichton to rely on the log notes as the notes were not in evidence.
16When the applicant objected to Ms. Crichton’s reliance on her log notes, she was responding to questions about her adjustment of the applicant’s claim one decade earlier. Reliance on her log notes for her testimony was reasonable as a way to refresh her memory given the time that has elapsed since she was the adjuster on the file. While Ms. Crichton’s log notes were not included in the joint document brief filed with the Tribunal, as previously stated by the respondent, the log notes had been provided to the applicant in a reasonable time frame in relation to the applicant’s request for the documents, and in advance of the hearing. The respondent confirmed that Ms. Crichton had also been on its witness list.
17While Ms. Crichton was permitted to refresh her memory from her log notes, I also found that admitting the log notes for the time period relating to her testimony of her carriage of the accident benefits claim would best enable an efficient and reliable hearing process and a resolution on the merits of the proceedings. Applicant’s counsel was offered a recess to further review the log notes before continuing with the testimony of Ms. Crichton, but he declined.
ANALYSIS
18The applicant must demonstrate entitlement to the benefit claimed. The onus is with the applicant to show this on the balance of probabilities. Entitlement to the non-earner benefit was denied by the respondent on November 20, 2013. The applicant filed the current application with the Tribunal on June 13, 2022.
19The applicant is claiming a non-earner benefit of $320.00 per week from September 6, 2013 to date and ongoing. Sections 12(1)2 and 12(3) of the Schedule (as per the version of the Schedule in force on the date of the accident) provide for entitlement to non-earner benefits for more than 104 weeks, depending on a person’s status as a full-time student. I have not been directed to the applicant’s actual qualifications as they relate to the requirements under section 12(1)2(i) or (ii), however, for the reasons that follow, I find it unnecessary to determine whether the applicant is eligible for a non-earner benefit more than 104 weeks after the accident.
20Prior to September 6, 2013, the applicant was receiving a non-earner benefit as it had been determined that she suffered a complete inability to carry on a normal life. However in 2013, there were indications of improvements in her independence and function. As of November 12, 2013, she embarked on a full-time, one month training program at the Royal Bank of Canada, followed by employment as a bank teller which continued into 2015.
21The test for a non-earner benefit under section 12(1)1 of the Schedule requires a complete inability to carry on a normal life as a result of the accident. The full definition is set out in section 3(7)(a) of the Schedule and reads as follows: “a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.
22I have not been provided a disability certificate that supports the applicant’s eligibility for a non-earner benefit after September 6, 2013. A disability certificate dated November 15, 2013 showed that the applicant did not have a complete inability to carry on a normal life. Based on this, the respondent denied the applicant’s entitlement to a non-earner benefit on November 20, 2013.
The applicant is statute-barred from disputing the denial of the non-earner benefit
23I find that the November 20, 2013 denial of the applicant’s entitlement to a non-earner benefit triggered the two-year limitation period pursuant to section 56 of the Schedule.
24The applicant submits that the respondent’s November 20, 2013 denial of the applicant’s entitlement to a non-earner benefit was not valid and that she has a continuing claim to this benefit to the present day. Specifically, the applicant submits that the respondent’s notice of November 20, 2013 did not comply with section 37(4) of the Schedule which specifies that the notice is to provide “the medical and any other reasons” for the denial of the benefit. The applicant submits that Ms. Crichton’s letter of November 20, 2013 was not a valid notice of denial under the Schedule as it did not provide medical reasons for denying the benefit.
25The respondent takes the position that Ms. Crichton’s letter of November 20, 2013 met the requirements under section 37(4) and that it constitutes a refusal to pay, triggering the limitation period under section 56 of the Schedule. The respondent submits that the letter started the two-year limitation period which then expired in 2015, and the applicant is now statute barred from revisiting the denial.
26I agree with the respondent. Section 37(4) of the Schedule states “If the insurer determines that an insured person is not entitled or is no longer entitled to receive a specified benefit on any one or more grounds set out in [section 37(2) of the Schedule], the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.”
27The letter of November 20, 2013 signed by Ms. Crichton, informed the applicant that she was “no longer entitled to non-earner benefits beyond today’s date, November 20, 2013.” It referenced the history of the request for an updated disability certificate since July 30, 2013, and the suspension of the non-earner benefit as of September 6, 2013 because an updated certificate had not been provided. The letter stated that an updated disability certificate had been provided on November 18, 2013 and that Mr. Hartman had determined that she no longer suffered a complete inability to carry on a normal life as a result of the injuries sustained in the motor vehicle accident. The letter concluded that the applicant was no longer entitled to non-earner benefits after November 20, 2013. The applicant’s lawyer at the time, Ms. Jaimie Noel, was copied and the letter enclosed an explanation of benefits, the occupational therapy assessment report, and the updated disability certificate. I find that this was a clear and unequivocal denial.
28With regard to the applicant’s submission that section 37(4) expressly requires that the insurer advise the insured person of “the medical and any other reasons for its determination,” both parties referenced the decision of the Court of Appeal in Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78.
29In Varriano, the Court reviewed the scope of notice requirements when an insurer had stopped payment of a specified benefit based on one or more reasons set out in section 37(2) of the Schedule. The Court considered whether the wording of section 37(4) necessarily required that medical reasons also be provided where payment was stopped because of a section 37(2) reason, and determined that medical reasons were not always required.
30In paragraph 31 of the Varriano decision, the Court stated that under section 37(4) the “and” in “medical and any other reasons” may be read disjunctively, clarifying that section 37(4) required the insurer’s actual reasons for its decision to deny a benefit. The Court specified in paragraph 31 that “If the insurer relies on a medical and a non-medical reason to deny benefits, the insurer must advise the insured person of both. However, if the insurer is relying on a non-medical ground under s. 37(2), the provision requires only that the insurer provide notice of the cancellation of the benefits and to provide the insured with the non-medical reason for that determination.”
31The applicant submits that the Varriano decision does not apply to the facts before me, arguing that the respondent’s decision as to entitlement in November 2013 “is irrefutably based on medical reasons.” I disagree. In denying entitlement to the non-earner benefit, Ms. Crichton’s letter identified the reason for the denial as being the ground set out in section 37(2)(b) of the Schedule: that the disability certificate did not support continuing entitlement to the benefit. This certificate had been obtained by the applicant. The applicant has not directed me to any separate reason of a medical nature for the denial. In accordance with the interpretation of section 37(4) requirements by the Court in Varriano, which is binding on this Tribunal, I find that the respondent was therefore not required to also provide or to manufacture a separate medical ground for the denial.
32The applicant submitted that the respondent’s denial of November 2013 was not valid, based on two decisions of this Tribunal which were issued after the Varriano decision: Felix v. The Personal Insurance Company, 2023 CanLII 42536 and Longboat v. Gore Mutual Insurance Company, 2023 CanLII 67925. I do not find these decisions to be of assistance. The Felix decision did not concern a specified benefit and accordingly, section 37(2) grounds for denying a benefit, as discussed in Varriano, were not applicable.
33In Longboat, the adjudicator found the reason for the insurer’s denial of the specified benefit to be vague, meaning that the denial did not meet the requirements articulated by the Supreme Court of Canada in Smith v. Co-operators Gen. Ins. Co., 2002 SCC 30. The adjudicator also weighed into her determination that the insured was unrepresented. Such factors are not applicable in the matter before me. Here, I do not find the reasons for denying the benefit in to be vague and I do not find any lack of clarity about the circumstances leading up to the denial. Both the applicant and her counsel were aware of reports of improvement in the applicant’s condition in the preceding months and that the applicant had embarked on a training program at the Royal Bank of Canada in November 2013. The letter of November 20, 2013 was copied to applicant’s counsel, enclosing a copy of the disability certificate together with the explanation of benefits and the occupational therapy reassessment report of Mr. Hartman.
34While the applicant points out that the disability certificate of November 13, 2013 was not signed by her, I do not accept that this affects the initiation of the limitation period. The applicant agreed to have Mr. Hartman complete the disability certificate on her behalf. The applicant was provided a copy of the disability certificate by the respondent with the November 20, 2013 letter. I have not been directed to any evidence showing that the contents of the certificate were not consistent with the applicant’s circumstances at that time. If the applicant sought to challenge the validity of the certificate filed on her behalf, this should have been done within the two year limitation period for appealing the denial.
35I find that the respondent’s denial of the applicant’s entitlement to non-earner benefits on November 20, 2013 met the statutory requirements under section 37(4). Accordingly, I find that the two-year limitation period under section 56 of the Schedule was triggered and that the application is statute-barred.
Mr. Hartman’s assessments
36Before leaving this matter, I will address the applicant’s submissions regarding Mr. Hartman’s role. The applicant argued that Mr. Hartman was not a treating healthcare professional but in fact a section 44 assessor for the respondent and because of this, a denial based on a disability certificate issued by him was invalid. The respondent denies that Mr. Hartman was a section 44 assessor and submits that his assessments were carried out as part of the normal course of an occupational therapist’s periodic review of overall status and treatment needs.
37I find no merit in the applicant’s submission that Mr. Hartman was acting as a section 44 assessor. While Ms. Crichton had recommended Mr. Hartman to applicant’s counsel in 2012, I find that the decision to engage him and continue to use his services was that of the applicant.
38The accident occurred when the applicant, who lived in British Columbia, was visiting Ontario. When the respondent was in the process of taking priority over the claim from an insurer in Ontario, there were communications between Ms. Crichton and Ms. Noel, the applicant’s Ontario-based lawyer about the need for the applicant to have an occupational therapist in British Columbia familiar with the Ontario accident benefits system to facilitate the applicant’s rehabilitation treatment and accident benefits. By June 2012, the applicant still did not have an occupational therapist in British Columbia. Ms. Crichton recommended Mr. Hartman to Ms. Noel as he was an occupational therapist originally been based in Ontario and had recently expanded his Ontario-based disability management company to British Columbia. Ms. Noel knew of Mr. Hartman and expressly approved of having him serve as a treating occupational therapist for the applicant.
39From the time of his completion of a disability certificate on June 28, 2012 which initiated the applicant’s non-earner benefits claim, Mr. Hartman was a main contact for the applicant’s treatment. His role included communicating directly with the applicant and her counsel, assessing the applicant’s progress, making treatment recommendations, and directing treatment carried out by Ms. Melisa Crosby, a health-care provider with his company.
40With regard to the updated disability certificate in question, the respondent sought this under section 37(1)(a) of the Schedule, stating in the letter of request (dated July 30, 2013) as follows: “We trust that your treating Occupational Therapist (or alternate provider – refer to OCF-3) can complete this for you.” The applicant’s lawyer was regularly copied on such correspondence. As pointed out by the respondent, Mr. Hartman testified that he had emailed Ms. Noel about completing the disability certificate and the applicant had asked that he complete the disability certificate.
41The applicant argued that Mr. Hartman was in fact serving as a section 44 assessor when he assessed the applicant; that proper notice of a section 44 assessment had not been given by the respondent; and that therefore Mr. Hartman’s assessments must be discounted. I do not find these arguments persuasive. Throughout his involvement in the applicant’s claim, Mr. Hartman facilitated the applicant’s treatment and was reliant on instructions from the applicant. He completed the disability certificate in June 2012 which first qualified the applicant for the non-earner benefit. In the updated certificate 15 months later, Mr. Hartman checked off “No” in response to the disability certificate question as to whether the applicant suffered a complete inability to carry on a normal life. However, this was at a point when the applicant’s condition had improved to the point of her starting a full-time training program into which she had been accepted just before the December 2011 accident.
42The decision of whether to use Mr. Hartman’s services or to seek another health care provider remained with the applicant. The evidence shows ongoing communications with Mr. Hartman and applicant’s counsel throughout the relevant time in the applicant’s post-accident assessment and treatment, I have not been directed to any concerns or questions raised about Mr. Hartman’s role during this period or in the years immediately following the denial of the non-earner benefit. I find that the evidence related to Mr. Hartman’s involvement does not support that he was acting as a section 44 assessor as alleged.
Entitlement to the benefit claimed
43Even if the applicant were allowed to proceed, I find that the applicant has not demonstrated her entitlement to the non-earner benefit.
44The qualification for a non-earner benefit is set out in section 12 of the Schedule: a person must have “a complete inability to carry on a normal life.” This is further defined in section 3(7)(a) as an inability that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
45The applicant relies on the report of psychiatrist Dr. Sherese Ali who, based on a one-time assessment of the applicant in January 2016 for catastrophic impairment status, concluded that the applicant was unable to carry out substantially all of her activities of daily living as a result of severe depression thought to be resulting from the accident. Dr. Ali found that the applicant was markedly impaired with respect to self-care, travel, having a restful sleep pattern, and participating in social and recreational activities.
46While significant, I find Dr. Ali’s report to be limited in addressing the applicant’s qualification for a non-earner benefit from 2013 up to the time of this application.
47In addition to the fact of the applicant’s employment, the respondent points to post accident evidence of the applicant’s independence with self-care, ability to access the community, extended overseas travel, and socializing with family and friends and submits that the applicant has not demonstrated that she was continuously prevented from engaging in substantially all of her pre-accident activities. The respondent highlights that the applicant did not call any witnesses who could testify about her circumstances during the lengthy time period for which she seeks entitlement to the non-earner benefit: no health care providers, current assessors, or other individuals with knowledge of the applicant’s circumstances up to the time of this application were called to testify.
48I agree with the respondent that the applicant has not met her onus. The applicant was able to train for and hold a steady job of twenty-five plus hours per week for one and a half years, during the period for which she claims continued entitlement to the non-earner benefit. The limited documentary evidence presented at the hearing leaves many questions unanswered in relation to the applicant’s qualification for the benefit claimed.
49Moreover, section 36(3) of the Schedule states that an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before a completed disability certificate is submitted. The applicant’s evidence did not include a disability certificate supporting entitlement to a non-earner benefit for any period following the respondent’s request for an updated disability certificate on July 30, 2013.
50According to the testimony of Mr. Sam Patel, the adjuster who had carriage of the claim from 2015 until January 2023, no updated disability certificate had been provided to the respondent after November 2013 even though there were numerous communications between himself and applicant’s counsel about the need for such a certificate. There was a post-2013 disability certificate form filed in evidence but the physician wrote on the form that he was unable to complete the certificate as he had only seen the applicant on two occasions in January 2018.
51Even if the applicant were not barred by the two-year limitation period, I find that that the applicant has not demonstrated entitlement to a non-earner benefit after the respondent required an updated disability certificate in 2013.
Conclusion
52I find that the two year limitation period as set out in section 56 of the Schedule was triggered with the issuance of the November 20, 2013 letter denying entitlement to the non-earner benefit. This 2022 application with the Tribunal is outside of the limitation period.
53As the parties did not make submissions with regard to the exercise of the Tribunal’s jurisdiction under section 7 of the Licence Appeal Tribunal Act, 1999 S.O. 1999, c.12. to extend the limitation period, I find it unnecessary to address this.
Award
54The applicant sought an award under section 10 of Reg. 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. As no benefits are payable, there is no basis for an award.
Interest
52Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no overdue benefits, no interest is payable.
ORDER
53The applicant is statute-barred from proceeding with her application pursuant to section 56 of the Schedule and is therefore not entitled to non-earner benefits, an award or interest.
54The application is dismissed.
Released: January 8, 2024
Taivi Lobu
Adjudicator