Licence Appeal Tribunal Decision
Licence Appeal Tribunal File Number: 23-002752/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:
Mingot Djenny
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Michael R Switzer, Counsel
For the Respondent:
Stefan Sistilli-Sguazzin, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Mingot Djenny, the applicant, was involved in an automobile accident on October 17, 2020, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 18, 2021 to date and ongoing?
ii. Is the respondent entitled to a repayment of $557.50 relating to its payment of an income replacement benefit?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3The applicant confirmed in her submissions that the respondent approved issues 3 and 4 as listed on the case conference report and order (“CCRO”) dated January 8, 2024, and therefore these are no longer issues in dispute.
4The applicant also confirmed that she was removed from the Minor Injury Guideline (“MIG”) on June 17, 2024. As such, MIG is no longer an issue in dispute.
5The respondent also confirmed in its submissions that issue 5 on the CCRO was meant to be approved on June 17, 2024 and was subsequently approved on July 8, 2024. The respondent has provided letter correspondence confirming same. As such, this issue is no longer in dispute as the respondent approved it in full.
6The remaining issues in dispute are as listed above.
RESULT
7The applicant is not entitled to IRBs, interest, or an award.
8The respondent is entitled to a repayment of $557.50.
ANALYSIS
Pre-104 Week IRBs
9I find that the applicant is not entitled to pre-104 week IRB payments in the amount of $400.00 per week for the following reasons.
10To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
11The applicant submits that she was receiving IRB payments in the amount of $278.75 per week from October 25, 2020, to August 18, 2021. The applicant submits that she was 27 at the time of the accident and enjoyed the social aspect of her job. The applicant states that if it was not for the accident, she would have likely continued to work as a self-employed aesthetician, and as such, IRBs should be payable for the full eligible period of October 25, 2020, to present, in the amount of $400.00 per week.
12The respondent submits that the applicant has not met her burden under s. 5 of the Schedule. The respondent submits that the applicant was paid some benefits until s. 44 assessments revealed the applicant did not suffer from a substantial inability as defined by the Schedule, and the benefits were discontinued on August 6, 2021. The respondent relies on the s. 44 assessments of family medicine specialist Dr. Sueng-June Lee, dated August 5, 2021; kinesiologist, Mr. Luigi Grimaldi, dated August 5, 2021; and psychiatrist Dr. Allan Peterkin, dated August 5, 2021.
13The issue before me is whether the applicant is entitled to IRBs in the amount of $400 per week from August 18, 2021 and ongoing. I find that the applicant has not put forward contemporaneous evidence that supports a substantial inability to perform essential tasks of her employment.
14Specifically, the applicant’s submissions do not identify what the essential tasks of her pre-accident employment were, or how she is unable to complete them due to accident-related impairments. The applicant has also not directed me to contemporaneous evidence that would substantiate a finding that the applicant continued to suffer from a substantial inability to perform her employment tasks from August 18, 2021, up to the 104-week mark.
15The applicant relies on the Omega Medical Associates catastrophic assessments of psychologist, Dr. Becker, dated May 15, 2023, and neurophysiatrist, Dr. Hastings, dated May 15, 2023, to prove she suffers from a “complete substantial inability” to perform essential tasks of her employment. However, given that these assessments were completed in 2023, I find these assessments to be unpersuasive with respect to the applicant’s ability to engage in essential tasks of her employment at or around August 2021.
16Moreover, the applicant has not provided any medical opinion or evidence at or around the date of the termination of the IRBs and up to the 104-week mark, that would substantiate a finding that she had suffered from a substantial inability to engage in employment tasks as an aesthetician.
17Taken together, on a balance of probabilities, I find the evidence does not establish the applicant’s eligibility for pre-104 week IRBs.
Post-104 Week IRB
18I find the applicant is not entitled to post-104 week IRB payments in the amount of $400.00 per week for the following reasons.
19To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
20The applicant submits that she attended a psychological re-assessment and neurophysiatry assessment in December 2023 with Omega Medical Associates for catastrophic impairment, and “both of these assessors” found she suffered from a “complete substantial inability to perform the essential tasks of her employment.”
21The respondent submits that the applicant has not provided medical expert opinion that she has a “complete inability to return to employment”, or that she meets the post-104 IRB test defined by the Schedule. The respondent relies on the transcript of the cross-examination of the applicant dated January 25, 2024.
22For clarity, this is a cross-examination on the applicant’s affidavit evidence as permitted by the case conference report and order released January 8, 2024. The applicant did not provide her affidavit within her hearing materials.
23The applicant bears the onus to prove entitlement to the benefits she seeks on a balance of probabilities, and as I have found above, the applicant’s submissions do not identify what the essential tasks of her pre-accident employment were, or how she is unable to complete them due to accident-related impairments. The applicant has also not directed me to contemporaneous evidence that would substantiate a finding that the applicant suffers from a complete inability to perform her employment tasks after the 104-week mark.
24While the applicant relies on the catastrophic assessment reports in December of 2023, I find that the applicant has not included this evidence in her hearing brief. I do find, however, that the assessments tabbed in relation to this submission are the catastrophic assessments of psychologist Dr. Dory Becker, dated May 15, 2023, and Dr. Robert Hastings, dated May 15, 2023.
25In any event, I am not persuaded by the reports of Dr. Becker and Dr. Hastings, for the following reasons. While Dr. Becker comments on the applicant’s performance, pace, and duration of her ability to engage in work-like demands, this assessor does not state that the applicant suffers from a complete inability to engage in employment activities. Similarly, while Dr. Hastings notes that the applicant will work more slowly, complete less, and require more frequent breaks, Dr. Hastings reports that the applicant feels that she will be able to launch an edibles company. Dr. Hastings also does not state that the applicant suffers from a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.
26What is more, I find that the applicant’s evidence during cross-examination revealed that she was working from February 2023 to April 2023 as a customer service agent, until her contract ended and she returned to school for bakery and pastry art management in May 2023. The applicant also confirmed that she was working as a customer service agent at the time of the cross-examination in January 2024. In my view, this does not satisfy the test of a complete inability to engage in employment pursuant to s. 6 of the Schedule.
27Taken together, on a balance of probabilities, I find the evidence does not establish the applicant’s eligibility for post-104 week IRBs.
The respondent is entitled to a repayment of $557.50
28I find that the respondent is entitled to a repayment of IRB benefits in the amount of $557.50.
29Section 52 of the Schedule concerns the repayment of benefits. Under 52(1)(a), any benefit that is paid to an insured as a result of an error on the part of the insurer, the insured person or any other person, the insured is liable to repay the insurer. The respondent has the burden of proving benefits were paid to the applicant as a result of an error on a balance of probabilities.
30The respondent submits that the applicant was paid IRBs until s. 44 assessments concluded that she did not suffer a substantial inability as defined by the Schedule. The respondent submits that the applicant was advised of same on August 6, 2021. However, despite being denied as of August 18, 2021, IRBs were paid up to September 1, 2021, resulting in an overpayment in the amount of $557.50.
31The applicant, in her submissions, states that the respondent advised there was an overpayment of $557.50. The applicant does not provide any submissions with respect to repayment.
32For the reasons set out above, I have found that the applicant is not entitled to IRB benefits. I also find that the respondent’s correspondence dated August 6, 2021, is clear that IRB payments were to cease on August 18, 2021. As such, I find the overpayment amount of $557.50 to be an error on the part of the respondent and therefore repayable by the applicant. I also find that the respondent quickly noticed its error and took timely steps to recoup the funds as required by s. 52(2) and (3) by sending letter correspondence to the applicant on September 1, 2021 advising of the overpayment.
33Given the above, the applicant is liable to repay the respondent the overpayment of IRBs in the amount of $557.50.
Interest
34As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
35The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
36The applicant submits that she has not been able to receive adequate treatment since the accident because the respondent kept her in the MIG until June 2024.
37I find no award is payable because the applicant has not directed me to evidence of unreasonable withholding or delay of benefits to warrant an award in this case.
38As such, the respondent is not liable to pay an award.
ORDER
39I find that:
i. The applicant is not entitled to IRBs in the amount of $400.00 per week from August 18, 2021 and ongoing;
ii. The respondent is entitled to a repayment of $557.50;
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and
iv. The respondent is not liable to pay an award.
Released: February 11, 2025
Nadia Mauro
Adjudicator