Rajah v. The Personal, 2024 CanLII 94132

Citation: Rajah v. The Personal, 2024 ONLAT 22-008895/AABS

Licence Appeal Tribunal File Number: 22-008895/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:

Selvan Rajah

Applicant

and

The Personal

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Fasih Shah, Counsel

HEARD: By way of written submissions

OVERVIEW

1Selvan Rajah, the applicant, was involved in an automobile accident on November 20, 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, The Personal, 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit (“MIG”)?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 20, 2019, to December 20, 2021?

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

3I find that:

i. The Tribunal does not have jurisdiction to determine the applicant’s MIG status in the absence of an underlying and connected dispute pertaining to a claim for medical benefits. As a result, I have not considered the MIG issue in this decision.

ii. The applicant is not entitled to a non-earner benefit or interest.

iii. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

4In his reply submissions for this written hearing, the applicant requested that the respondent’s hearing submissions be found inadmissible due to late-filing. The applicant’s request is denied.

5The applicant submits that pursuant to the Case Conference Report and Order dated April 21, 2023, the respondent’s hearing submissions were due by 5:00 p.m. on January 12, 2024. However, it did not file its submissions until Saturday January 13, 2023, which would be considered as filed on Monday January 15, 2024. The applicant submits that the respondent’s late-filing is evidence of a lackadaisical handling of his claim and a refusal to comply with its obligations, and Tribunal policies and procedures. He requests that the respondent’s submissions and evidence be excluded from this written hearing.

6I decline the applicant’s request to exclude the respondent’s hearing submissions.

7The applicant has not led any evidence or provided submissions as what prejudice he has suffered by this one business day delay in filing the respondent’s submissions. While I appreciate that the applicant had less time to prepare his reply materials, when considering the prejudice to both parties I find that excluding the respondent’s submissions and evidence in this manner would be unduly prejudicial and contrary to procedural fairness. The applicant has provided fulsome reply submissions and materials in response to the respondent’s hearing materials. However, by striking the entirety of the respondent’s hearing submissions, it would effectively be barred from participating in these proceedings. The prejudice to the respondent if I were to exclude its submissions greatly exceeds any prejudice to the applicant for this minimal delay.

ANALYSIS

Applicability of the Minor Injury Guideline

8I find that the Tribunal does not have jurisdiction to make a MIG determination in this matter.

9The respondent submits that since there are no treatment plans in dispute, the applicant is not able to contest the applicability of the MIG, as there is no benefit tied to its determination. It cites Tribunal decisions Bobak v Travelers Insurance, 2022 CanLII 146 (ON LAT), R.T. vs. Certas Direct Insurance Company, 2020 CanLII 12782 (ON LAT), and S. S. L. v Certas Direct Insurance Company, 2020 CanLII 63593 (ON LAT) in support of its position that MIG determination cannot be a standalone issue when there are no medical or rehabilitation benefits in dispute. Despite providing reply submissions, the applicant did not provide any submissions on the issue of whether MIG determination can be considered in the absence of treatment plans.

10I agree with the respondent and its cited cases that the Tribunal does not have jurisdiction to consider MIG determination when there are no medical or rehabilitation benefits in dispute. I am persuaded by the reasoning in Bobak, that Section 280 (1) of the Insurance Act states that the Tribunal has jurisdiction to resolve “disputes in respect of an insured person’s entitlement of statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured is entitled.” However, the MIG is not a statutory accident benefit. Rather, it is a guide that defines minor injuries and the treatment framework for medical providers.

11Since the Tribunal only has jurisdiction to hear disputes relating to the entitlement of accident benefits, the applicability of the MIG as a standalone issue is not a dispute contemplated under s. 280 of the Insurance Act. As such, the issue of MIG determination will not be considered as part of this written hearing.

Non-earner benefit (“NEB”)

12I find that the applicant has not met his onus to prove that he suffers from a complete inability to carry on a normal life as a result of the accident. Nor has the applicant established that NEBs are payable pursuant to s. 36(6) of the Schedule.

Substantive Entitlement to NEBs

13Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

14The applicant has not provided any specific details of his pre-accident activities or demonstrated how his participation in those activities has been limited as a result of the accident. Rather, he provides the general submission that his activities of normal living were impaired and that he was prevented from completing his housekeeping activities. However, the particular tasks he was now unable to complete were not identified. Further, no submissions were provided on which activities were most important to him, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare the applicant’s pre and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

15The applicant further does not direct me to any medical opinion or medical evidence that he suffers a complete inability to carry on a normal life. Rather, he relies on various OCF forms to establish his claim, including a Disability Certificate (OCF-3), Minor Injury Discharge Report (OCF-24) and Treatment Plan (OCF-18) all prepared by his chiropractor Dr. Counti, and his Application for Accident Benefits (OCF-1). I agree with the respondent that OCF forms alone are not sufficient to establish entitlement to NEBs. Rather additional objective medical evidence is required.

16Although the applicant also submits clinical notes and records (CNRs) from his family physician and acupuncture clinic, I do not find that they establish a complete inability to carry on a normal life as a result of the accident. In the two years post-accident the applicant did not appear to report any accident-related impairments to his family doctor nor do the CNRs reference any functional restrictions as a result of the accident.

17The applicant argues that he was unable to attend his doctor’s office due to the COVID pandemic, however, the accident occurred four months before the pandemic and I agree with the respondent that in the January and February 2020 CNR entries, there is no mention of the accident. Further, the applicant has not led any evidence to establish that telephone appointments were unavailable with his family physician in 2020 or 2021. With respect to the acupuncture clinic records, I agree with the respondent that the records do not appear to address any accident-related concerns.

18As such, I find that the applicant has not led sufficient evidence to prove that he was continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

Procedural requirements of s. 36(4) of the Schedule

19I find that the applicant has not established that the respondent was non-compliant with s. 36(4) of the Schedule.

20Section 36(4) provides that within 10 business days after receiving an application and completed disability certificate, the respondent shall pay the benefit, give notice of the medical and any other reasons why it will not pay the benefit, or request additional information pursuant to section 33(1) or 33(2) of the Schedule.).

21If an insurer fails to comply with s. 36(4) within the 10 business day time limit, s. 36(6) states that it must pay the specified benefit until a notice in accordance with s. 36(4)(b) is given. However, pursuant to s. 33(6) of the Schedule, the insurer is not liable to pay a benefit during any period in which the claimant fails to provide the insurer with the information requested pursuant to s. 33.

22The respondent submits that it complied with s. 36(4) of the Schedule. It argues that it received the OCF-3 on December 7, 2019 and within 10 business days, on December 20, 2019, made a s. 33(1) request for additional medical documentation, being a completed OCF-5 form so that medical records could be obtained and an Activities of Normal Living (ANL) form. However, these documents were never provided. The respondent further argues that it subsequently made a request on August 28, 2020 under s. 37(1)(a) of the Schedule for an updated OCF-3. However, this was similarly not provided by the applicant.

23The applicant argues that the respondent never provided a s. 33(1) request and as such is non-compliant with s. 36(4) of the Schedule. He submits that the December 20, 2019 letter does not expressly reference s. 33(1) of the Schedule and as such, cannot be considered a s. 33 request. With respect to the respondent’s subsequent s. 37(1)(a) request for an updated OCF-3, the applicant submits that it was similarly noncompliant with the Schedule, and that the respondent failed to consider that clinics were closed to the COVID pandemic. As such, he submits that he was unable to obtain the certificate and that the respondent should have exercised its authority to request a s. 44 examination instead.

24From my review of the December 20, 2019 letter, it fulfills the requirements of s. 36(4) and s. 33(1)1 of the Schedule. It requests information that is reasonably required to assist the respondent in determining the applicant’s entitlement to NEBs, namely, an OCF-5 to obtain family doctor’s records and an ANL form. The letter also states that this information was required before the respondent could make a determination as to entitlement. As such, the consequence of not providing the requested documents was clearly stated to the applicant, namely that the respondent would not be able to make a determination as to entitlement to NEBs. Although the applicant argues that a s. 33 request must specifically reference the section of the Schedule, detailed notice requirements are not stipulated in s. 33(1)1. The applicant further does not direct me to any caselaw in support of this requirement. The applicant does not dispute that he failed to provide the OCF-5 or ANL form. Further, from the evidence it appears that the applicant did not provide medical records of his treating physicians until 2023, well outside the 104-week entitlement period for NEBs.

25As such, I find that the applicant did not comply with the s. 33(1) request made pursuant to s. 36(4) of the Schedule. Accordingly, pursuant to s. 33(6), the respondent was not liable to pay NEBs for the period during which the documents were outstanding, which would encompass the period of NEB entitlement.

26Further, by way of letter dated August 28, 2020 the respondent made an additional request pursuant to s. 37(1)(a) of the Schedule for an updated OCF-3. I find that this notice was also compliant with the Schedule, as it requested the Disability Certificate and stated the consequences for non-compliance. The applicant similarly has not provided the updated OCF-3, but rather argues that under s. 37 the respondent had the option to require a s. 44 examination rather than request a certificate. Given the pandemic where clinics were closed, the applicant argues that the respondent should have requested the s. 44 examination.

27I am not persuaded by the applicant’s argument. Although he submits that he was unable to obtain an updated OCF-3 as his clinic was closed or because he was high-risk and could not attend at his doctor’s office, no evidence has been led in support of his claim. The applicant has not provided any evidence that he attempted to obtain the updated OCF-3 from a treating practitioner or that the applicable clinics were closed. The applicant further does not direct me to any evidence that he communicated to the respondent that he was unable to obtain the OCF-3 due to COVID restrictions.

28As such, I find that the applicant has not met his burden to prove that NEBs are payable as a result of procedural non-compliance with s. 36(4) or s. 37(1) of the Schedule.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

30Under s. 10 of Regulation 664, 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 seeks an award on the basis that the respondent failed to comply with the notice provisions of the Schedule and that it chose not to pursue s. 44 examinations despite the applicant’s documented pre-existing impairments.

31I do not find that the applicant has established a basis for an award. With respect to the applicant’s argument that the respondent failed to comply with the notice provisions of the Schedule, I have found that the respondent’s correspondence was compliant with s. 36(4) and s. 37(1) of the Schedule. Further, I agree with the respondent that s. 44(1) of the Schedule does not require that an insurer schedule a s. 44 examination. In the present case, given that the medical evidence did not support entitlement to the benefits claimed, I do not find that the respondent’s failure to set s. 44 examinations was behaviour that was excessively impudent, stubborn, unyielding or immoderate.

ORDER

32For the foregoing reasons I find that:

i. The Tribunal does not have jurisdiction to determine the applicant’s MIG status in the present matter.

ii. The applicant is not entitled to a non-earner benefit or interest.

iii. The respondent is not liable to pay an award.