Licence Appeal Tribunal File Number: 22-004192/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:
Robert Quackenbush
(By their litigation guardian, Pamela Rose)
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Sandra DiMeo, Counsel
For the Respondent: Jessica Meyerovich, Counsel
HEARD: By way of written submissions
OVERVIEW
1Robert Quackenbush (the “Applicant”) was involved in an automobile accident on May 13, 2017, and sought benefits from Economical Mutual Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Respondent provided the Applicant with the forms to initiate a claim for benefits, including income replacement benefits (“IRBs”). However, the Respondent refused to pay any IRBs to the Applicant because the Applicant failed to submit the correct forms to initiate his claim.
3About two years later, following a priority dispute and the submission of a disability certificate, the Applicant’s claim was recognized by the Motor Vehicle Accident Claims Fund (“MVACF”). The MVACF then accepted the Applicant’s claim and paid IRBs to the Applicant – backdated to the date of the accident.
4However, the Applicant continues to claim entitlement to an award due to the Respondent’s initial adjusting of his claim for IRBs. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute over entitlement to an award.
5In response, the Respondent submits that the Tribunal has no jurisdiction to grant an award in a situation where no substantive issue is in dispute. It asks that the Tribunal dismiss the Applicant’s claim.
6Both the preliminary and substantive issues are before me for this hearing.
PRELIMINARY ISSUE
7Does the Tribunal have jurisdiction to hear the matters in dispute?
SUBSTANTIVE ISSUES
8The substantive issues in dispute are:
i. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonable withheld or delayed payments to the Applicant?
ii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
9I find that the Respondent’s motion considering jurisdiction is improper as it was not outlined in the Response to the Application. The motion is dismissed.
10The Respondent is not liable to pay an award, nor interest.
11The Tribunal’s decision will not be anonymized.
ANONYMIZATION OF TRIBUNAL DECISION
12The tribunal’s decision will not be anonymized.
13The Applicant sought an order to have the Tribunal’s decision anonymized. The Applicant suffers from a pre-existing learning disability and submits that he has been subject to financial exploitation in the past. To the Applicant, his history, combined with the traumatic brain injury and extensive injuries sustained in the accident, puts him in a position for further exploitation. The Respondent took no position on the request.
14Tribunals are subject to the open courts principle in that the proceedings are presumptively open to the public. The test for limits in openness is outlined in Sherman Estate v. Donovan, 2021 SCC 25, which states that the person seeking to limit the open court principle must establish: the serious risk to an important public interest; the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk; and as a matter of proportionality, the benefits of the order outweigh its negative effects.
15I find that the Applicant has not demonstrated that the risks to his privacy and safety are sufficiently serious. Submissions that the Applicant has been subject to financial exploitation in the past, has dyslexia and suffers from the effects of a brain injury do not establish a serious risk to his safety and privacy. Thus, the test to rebut the presumption of openness is not met.
BACKGROUND AND CHRONOLOGY
16The Applicant was the victim of a hit-and-run accident when he was struck by an unidentified vehicle while riding his bicycle to work. He was in a coma for several days following the accident and was not released from the hospital until about two months following the accident. The Applicant suffered multiple serious injuries as a result of the accident, including a catastrophic brain injury and fractures to his face, pelvis, leg, and ribs.
17The Applicants stepfather notified the Respondent of the accident on or around July 14, 2017, about two months post-accident. During that call, and in a recorded interview on July 24, 2017, which I have been provided the transcript of, the Applicant’s stepfather advised the Respondent of the Applicant’s injuries, including a traumatic brain injury, and his hospitalization. He also advised that the Applicant was employed at the time of the accident and has not returned to work since. Additionally, the Applicant’s stepfather advised the Respondent that the Applicant had a pre-existing learning disability which caused him to require help when reviewing and understanding the content of any written documents.
18In response, the Respondent sent an accident-benefit package to the Applicant for completion. The Applicant returned the accident-benefit package on or before September 13, 2017, which included an initial application for accident benefits (“OCF-1”), permission to disclose information (“OCF-5”), and an employer’s confirmation form (”OCF-2”). However, the OCF-1 was unsigned and missing information, and the OCF-2 was virtually blank with a hand-written note stating the employer’s name and number, but that they will not help complete the form.
19In response to the accident benefit package returned by the Applicant, the Respondent wrote to the Applicant on September 13, 2017 and requested that he complete the OCF-1 and authorize the release of information from the hospital. The letter never mentioned anything regarding IRBs or the forms required to initiate a claim for IRBs. On September 25, 2017, the Respondent followed-up with the Applicant’s stepfather via email and requested additional information which appears to be related to the priority of the Applicant’s claim. On October 2, 2017, the Applicant’s stepfather and the Respondent spoke over the phone, addressing the questions posed in the September 25, 2017 email.
20The Respondent received a completed OCF-1 on October 6, 2017. On October 13, 2017, the Respondent wrote a four-page letter to the Applicant confirming receipt of the OCF-1 and requesting a completed OCF-3. The letter also stated, amongst other things, that the Applicant is not entitled to IRBs prior to submitting an OCF-3.
21The Applicant, accompanied by his mother, went to his family physician on December 15, 2017 and asked to have the OCF-3 completed. However, the physician advised that it would cost $140.00 to complete the form, which the Applicant and his mother could not afford to pay – so the OCF-3 was not completed.
22On January 5, 2018, the Respondent received a copy of the Applicant’s hospital records. On February 13, 2018, the Respondent noted in its adjusting log notes that the Applicant sustained a brain injury and that the OCF-3 remains outstanding. An email was sent to the Applicant’s stepfather on March 15, 2018, requesting an OCF-3, which went unanswered. On April 9, 2018, the Respondent noted in the adjusting log notes that the OCF-3 remains outstanding, but that Applicant has been off work since the accident and that it does not believe he will be able to return to work. There is no evidence suggesting that the Respondent followed up with the Applicant or his stepfather between April 9, 2018 and October 10, 2018, when the Respondent emailed the Applicant’s stepfather and requested an update on the Applicant’s status. The October 10, 2018 email went unanswered.
23On November 22, 2018, the Respondent wrote to the Applicant and advised that the OCF-2 was incomplete and requested the Applicant send any expenses to the Respondent by December 22, 2018 or it will close the Applicant’s file. There is no mention of an OCF-3 in the November 22, 2018 letter and there is no evidence that the Respondent made any further requests for a completed OCF-3.
24The Applicant stepfather passed away in March 2019. In September 2019, the Applicant retained counsel, who continues to represent him to-date.
25On October 3, 2019, the Respondent approved funding for an in-home assessment by an occupational therapist. This appears to be the first benefit paid to the Applicant.
26On October 4, 2019, the Applicant was deemed incapable of understanding information that is relevant to making a decision by registered nurse G. Barbour, Designated Capacity Assessor.
27The Applicant eventually submitted an OCF-2 and OCF-3 on or before January 6, 2020. On January 6, 2020, the Respondent wrote to the Applicant and confirmed receipt of the OCF-3 but denied payment of any IRBs prior to the receipt of the OCF-3.
28The MVACF accepted priority of the Applicant’s claim on or before January 21, 2022. The MVACF determined that the Applicant would have qualified to initially receive IRBs following the accident and agreed to pay IRBs for the period from one week following the accident to-date. It also agreed to pay interest on the overdue payment of IRBs, starting from December 20, 2019, the date the OCF-3 was submitted.
ANALYSIS
Jurisdiction
29Prior to the hearing, the Respondent moved to dismiss the Applicant’s claim on the grounds that the Tribunal does not have jurisdiction to grant an award without also awarding entitlement to benefits. It submits that the power to grant an award is limited in reference to an actual payment of benefits, and the language used in the legislation states that an award can be granted “in addition to” benefits, implying that it cannot be granted without awarding benefits.
30In response, the Applicant submits that the Respondent’s motion is improper because it never raised a jurisdictional issue in its response to his application, as required by Rule 20.3 of the Common Rules of Practice & Procedure (the “Rules”). He further submits that the Tribunal has exclusive jurisdiction over disputes in respect of an insured persons entitlement to benefits under the Schedule or in respect of the amount of benefit, and to the Applicant this may include disagreements regarding how long it took the Respondent to pay benefits.
31I agree with the Applicant and find that the Respondent’s motion to dismiss on the grounds of jurisdiction is made contrary to rule 20.3. of the Rules. That rule clearly stipulates that a response to an AABS claim must clearly detail any jurisdictional issues that the Respondent seeks to have considered by the Tribunal. By moving at this juncture to dismiss the Applicant’s claims, the Respondent has failed to comply with the Rules.
32The Rules do not provide a consequence for a breach of rule 20.3 however, I find that dismissing the motion and hearing the substantive issue on the merits is a reasonable remedy for the breach. There is no prejudice to the Respondent in dismissing the motion because the Respondent was aware of the Applicant’s claims outlined in the application and has had maintained its position throughout the adjusting of the Applicant’s claim. Thus, it is best to address the issues on the merits.
Award
33I find that no award is payable.
34Pursuant to section 10 of Regulation 664, the Applicant may be entitled to an award if it is deemed that the Respondent unreasonably withheld or delayed payment of a benefit.
35The Applicant submits that the Respondent failed to provide him with the information and plain language instructions to complete a claim for accident benefits, causing the delayed payment of IRBs. He submits that his capacity was addressed in 2019 and he was deemed incapable of making decisions regarding his care and finances and that it can be assumed that the same level of dysfunction has been present since the accident, considering that he has since been deemed to have suffered a catastrophic impairment as a result of the traumatic brain injury sustained in the accident.
36The Applicant takes the position that the Respondent acted in self-interest when adjusting his claim and focused on absolving itself from a priority dispute rather than assist him in claiming benefits. He submits that the Respondent has a duty of good faith to adjust his claim in a timely fashion and it failed to acknowledge that they had an unsophisticated claimant with a brain injury who was not responding to letters or claiming benefits.
37The Respondent submits that it has not acted unreasonably such that an award is warranted. It highlights that the Applicant is not entitled to IRBs prior to the submission of a disability certificate and that it fulfilled its adjusting obligations when it made several requests for the Applicant to submit a disability certificate to commence payment of IRBs.
38I find no evidence demonstrating that the Respondent unreasonably withheld or delayed the payment of benefits. The Respondent promptly sent the Applicant an accident benefit package once it was informed of the accident and information to complete the forms to initiate a claim for benefits, including IRBs. This is compliant with the Respondent’s obligations in section 32(2) of the Schedule. I am satisfied that the Applicant received the documents because they were returned to the Respondent.
39The Respondent actively adjudicated the Applicant’s claim. The Respondent attempted to contact the Applicant following receipt of the incomplete forms and made inquiries into the status of the OCF-3 and other forms. On October 13, 2017, it wrote the Applicant and advised that the OCF-3 remained outstanding and that no IRBs would be paid before it was received. It made a similar request for the OCF-3 in a letter dated March 15, 2018.
40The Schedule requires a disability certificate be submitted to initiate a claim for IRBs. Section 36(2) provides that an applicant for a specified benefit shall submit a completed disability certificate and section 36(3) states that there is no entitlement prior to submitting a disability certificate. The combination of these two sections confirms that the application for a specified benefit, such as IRBs, is the Applicant’s responsibility – not the Respondent’s. Considering this fact, the Tribunal would have no authority to order payment of IRBs prior to submitting the OCF-3.
41The Applicant is assumed to have capacity until there is clear medical evidence that finds otherwise. I recognize the Applicant’s arguments pertaining to his pre-existing dyslexia and capacity following the accident and sympathize with him – I suspect that he was unable to understand and complete the forms required to initiate his claim due to these conditions. However, the law requires me to assume capacity until the medical evidence clearly demonstrates otherwise. The Applicant retained counsel by the time it occurred in the Applicant’s case, on October 4, 2019. After that, all communications were between counsel and the Respondent or the MVACF. Thus, the Applicant’s arguments pertaining to capacity are unpersuasive.
42While the Schedule is consumer protection legislation, I am unable to find that it is the Respondent’s onus to evaluate the Applicant’s capacity or ability to complete forms. Section 32(2) of the Schedule requires the Respondent to give the Applicant “information to assist (him) in applying for benefits”, it does not require the Respondent to ensure the Applicant is capable of and able to apply for benefits.
43The Respondent is not held to a standard of perfection. Indeed, as the Applicant has made clear in his submissions, there are times where the Respondent could have done more to accommodate the Applicant with his claim for benefits. For example: the letter in response to the incomplete application fails to mention that an OCF-2 and OCF-3 were missing, despite the Respondent knowing that the Applicant was employed at the time of the accident and currently disabled form working. Instead, the Respondent could have advised that the OCF-3 remained outstanding and that no IRBs would be payable until it is submitted.
44In another example, the Respondent could have advised the Applicant that it would pay up to $200.00 for the completion of an OCF-3. The Applicant’s family physician’s CNRs are clear in demonstrating that the cost of completing the OCF-3 was a barrier for the Applicant. Had the Applicant and his mother known that the fee was payable by the Respondent, the $140.00 fee would never have been an issue.
45Overall, it appears that the Respondent’s adjusting of the Applicant’s claim had a lens turned toward the pending priority dispute, but that does not upset the Applicant’s obligation to complete the steps to initiate his claims. To the Applicant’s detriment, he did not submit an OCF-3, nor did anyone involved in his care, until December 19, 2019. This is the cause of the delay in the payment of IRBs, and it not as a result of the Respondent’s unreasonable withholding or delay of payments, nor is it as a result of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour.
Interest
46Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As nothing is payable, it follows that no interest is payable.
CONCLUSIOn AND ORDER
47The Respondent’s motion to dismiss the application is dismissed.
48The Applicant is not entitled to an award, nor interest.
49The decision will not be anonymized.
50The Application is dismissed.
Released: October 4, 2024
__________________________
Brian Norris
Adjudicator