Licence Appeal Tribunal File Number: 24-003209/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:
Mian Hussain
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Jim Zotalis
APPEARANCES:
For the Applicant: Mian Hussain, Applicant Danielle Bartlett, Counsel
For the Respondent: Kevin Shapcott, Adjuster Jonathan Schrieder, Counsel
Court Reporter: Rayssa Cavalcanti, Victory Verbatim
Interpreter: Huma Hashmi, Punjabi language - (Day 1 and 3) Arshad Hashmi, Punjabi language - (Day 2)
Heard by Videoconference March 3–5, 2025
OVERVIEW
1Mian Husain, the applicant, was involved in an automobile accident on November 10, 2022, 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, Gore Mutual Insurance Company, Gore Mutual, 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 of $400.00 per week from November 17, 2022, to November 9, 2024?
ii. Is the applicant entitled to $525.00 for a vision assessment proposed by Graeme Ferguson in a plan submitted May 16, 2024?
iii. Is the applicant entitled to $3,261.71 for a recliner chair proposed by Janet Becker in a plan submitted March 18, 2024?
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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to an income replacement benefit (“IRB”) of $400.00 per week from November 17, 2022, to November 9, 2024, plus interest.
4The applicant is not entitled to $525.00 for a vision assessment.
5The applicant is not entitled to $3,261.71 for a recliner chair.
6The respondent is not liable to pay an award under s.10 of Reg. 664.
PROCEDURAL ISSUES
7The applicant informed the Tribunal at the start of the hearing that issues 2, 3 and 4 of the Case Conference Report and Order (“CCRO”), dated August 8, 2024, were to be withdrawn. The only remaining issues are those as identified above.
8The applicant brought an oral motion at the start of the hearing to amend issue 1 above for entitlement to IRBs of $400.00 per week and to be listed from November 17, 2022, to date and ongoing, instead of November 9, 2024, as indicated on the CCRO referenced above. I inquired with the applicant’s counsel if there were any post-104-week IRBs they were seeking as part of this application. The applicant indicated that no Insurer’s Examinations (“IEs”) for post-104 IRBs had occurred, nor were there any denials for post-104 IRBs.
9The respondent made submissions that the Tribunal should decline this request, because the parties had agreed to the issues in dispute during the case conference of August 8, 2024, as reflected in the CCRO, and any deviation from the identified issues would be unfair to the respondent.
10I agree with the respondent. The parties agreed to list this issue as set out in the CCRO dated August 8, 2024. A Tribunal order approving income replacement benefits should be to a set date. Given the applicant is not in receipt of a request for a new OCF-3 disability certificate for the post-104-week disability test, the request from the applicant is premature.
ANALYSIS
Is the applicant entitled to an IRB of $400.00 per week from November 17, 2022, to November 9, 2024?
11I find the applicant is entitled to an IRB of $400.00 per week from November 17, 2022, to November 9, 2024.
12To 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.
13The respondent made submissions that the applicant willfully misrepresented the facts surrounding his “alleged” employment with his employer, Full Power Technical Contracting Limited (“Power”). The respondent submits that there was no actual employer-employee relationship between the applicant and Power; rather, it was a contrived relationship arranged by two friends, i.e., the applicant, and Tariq Mehmood, owner/employer of Power. According to the respondent, this relationship was arranged as an effort for the applicant to gain IRBs and some treatment plans as a result of the motor vehicle accident. The respondent made further submissions that this wilful misrepresentation made by the applicant regarding his employment as a handyperson at Power and having pre-accident income precluded the respondent from calculating the quantum of IRBs.
14The applicant made submissions that denial of the IRBs is attributable, in part, to his lack of English reading and oral comprehension skills, along with suffering the effects of the accident. Although the applicant concedes errors were made on the initial insurance documents when applying for benefits, the errors were not intentional, and the applicant submits he has faced some prejudice by the insurer owing to the fact he is from a small, tight-knit Pakistani community located in a small eastern Ontario town. The applicant also argued that there was no personal relationship between himself and his employer, Tariq Mehmood, and, even if there were, the fact that they may have known each other vaguely in the community is irrelevant to the issues in dispute.
15The respondent made submissions that there is no evidence to suggest the applicant has faced prejudice from the insurer; rather, the respondent submits the applicant is entirely responsible to submit accurate information with respect to his application for IRBs, which it contends he did not. Furthermore, the respondent argued this was done as part of a wilful misrepresentation so that the respondent would accept that an actual employer/employee relationship existed, when in fact one did not.
16To receive IRBs, s. 36 of the Schedule sets out the procedure for filing a claim. Section 36(2) requires an insured person to submit a completed Disability Certificate (“OCF-3”) with their Application for Accident Benefits (“OCF-1”) to the insurer. The triggering event for the insurer to, among other options, pay IRBs to the insured person is the receipt of both the OCF-1 and a completed OCF-3.
17An OCF-3, signed by Audrey Dejong, physiotherapist, dated December 22, 2022, lists the following injury and sequelae that are the direct result of the accident: Whiplash Associated Disorder-3 (WAD-3), headache/concussion, sprain/strain of the shoulder, wrist, lumbar, thoracic, and knee, and injury of the ulnar nerve.
18It is notable that the OCF-3 states that the applicant was not working at the time of the accident. The applicant confirmed during his testimony that in fact he was working during the time of the accident.
19An OCF-3, dated May 1, 2024, by the same physiotherapist above, corrects the previously submitted information in Part 1, namely that the applicant was working during the time of the accident. That part was not completed by the applicant in the subsequent disability certificate.
20An OCF-2, Employer’s Confirmation Form, dated February 24, 2023, states the applicants’ gross income during the last 4 weeks before the accident to be $800.00 per week. The OCF-2 also states the date of employment as September 22, 2022, to November 11, 2022. The section outlining the essential tasks of the job was left blank. The applicant confirmed during his testimony that his gross income was not in fact $800.00 but was his net income. Furthermore, the applicant testified that the start date of employment on the OCF-2 was incorrectly identified as September 22, 2022, instead of September 21, 2022.
21The applicant confirmed during his testimony that he completed the OCF-2 document because he received an email from his insurance company advising him to complete the form. The OCF-2 contained errors that the applicant submits were the result of his language difficulties, as well as impairments suffered because of the accident.
22Further, s. 36(4) and (5) of the Schedule state (emphasis added):
(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall:
(a) pay the specified benefit;
(b) give the applicant a notice explaining the medical and other reasons (my emphasis) why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
(c) send a request to the applicant under subsection 33 (1) or (2).
(5) If the insurer sends a request to the applicant under subsection 33 (1) or (2), the insurer shall, within 10 business days after the applicant complies with the request,
(a) pay the specified benefit; or
(b) give the applicant a notice described in clause (4) (b).
23In this matter, the applicant received a denial of IRBs by letter dated October 16, 2024.
24Specifically, the respondent advised the applicant that his IRBs claim had been denied as per s. 53 of the Schedule. That section states:
An insurer may terminate the payment of benefits to or on behalf of an insured person,
a) If the person has wilfully misrepresented material facts with respect to the application for the benefit; and
b) If the insurer provides the insured person with a notice setting out the reasons for the termination.
25The denial letter relies on s. 53 of the Schedule and states an insurer may terminate the payment of benefits to or on behalf of an insured person if the insured person has wilfully misrepresented material facts with respect to the application for the benefit. The section also requires the insurer to provide a notice setting out the reasons for the termination. Although IRBs have never been paid in this matter, the issue in dispute involves a denial of the IRBs in the first instance based on wilful misrepresentation of employment and pre-accident income.
26The respondent’s letter stated the reason for a denial of IRBs as follows:
“based on all file documentation and evidence we have received regarding your pre-accident employment as helper and handyman at Full Power Contracting Co. (paystubs, employment history, etc.) When compared to the evidence you provided at the Examination Under Oath (“EUO”) on May 14, 2024, we take the position that you have made a wilful misrepresentation with respect to your application for the income replacement benefit.”
27The operative words in s. 53 of the Schedule as they pertain to this issue in dispute are the words “wilfully misrepresented”. The words “wilfully misrepresented” are not defined in the Schedule.
28The respondent has not provided me with any case law, submissions or evidence on the definition of wilfully misrepresented.
29Black’s Law Dictionary (10th ed. 2009) defines wilful as voluntary and intentional, and a voluntary act becomes wilful in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong. The term wilful is stronger than voluntary or intentional.
30I find that the respondent has not, on a balance of probabilities, demonstrated that the applicant wilfully misrepresented material facts with respect to the application for IRBs.
31The respondent relied on several reports from Davis Martindale, Chartered Professional Accountants, dated May 24, 2023, July 11, 2023, and September 28, 2023, requesting further documentation from the applicant with respect to his claim for IRBs to establish quantum of benefits.
32The respondent took the position that it was unable to calculate quantum for IRBs because file documentation and evidence it received regarding the applicant’s pre-accident employment as a helper/handyman at Power when compared to evidence provided at the EUO led the respondent to take the position that the applicant had made a wilful misrepresentation as to material facts with respect to the application for IRBs.
33To substantiate the applicant’s pre-accident income and to verify his employment as a handyman at Power, the applicant submitted the following documents to the respondent:
a. The applicant’s 2022 CRA Notice of Assessment;
b. Power’s CRA Account Summary dated May 16, 2023, outlining the payroll remittances total for the 2022 tax year;
c. Correspondence from the applicant dated June 5, 2023, advising that the reason for the discrepancy between the Record of Employment and pay statements from Power was due to a change in accountants;
d. Confirmation that the applicant’s T4 Statement of Remuneration from Power was correct;
e. Confirmation that all the applicant’s earnings were paid in cash and taxes were remitted on his behalf to the Canada Revenue Agency (“CRA”); and
f. The deposit to the applicant’s bank account on November 18, 2022, for $85,557.89 was from a loan to buy a property and the other deposits were from his credit card to make payments for his personal expenses.
34The respondent made further requests for documentation including independent pre-accident documentation supporting the applicant’s earnings from Power, such as bank statements and an employment file, statements from his BMO bank statement account from May 12, 2023, to the present, and documentation supporting the source and nature of his post-accident deposits.
35The applicant also provided the respondent with his bank statements for his BMO account from May 13, 2023, to September 14, 2023.
36Notwithstanding the documents provided by the applicant to the respondent, the respondent nonetheless took the position that it was still unable to determine the quantum of IRBs and required further documentation from the applicant with respect to both independent pre-accident documentation supporting his earnings from Power and documentation supporting the source and nature of his post-accident deposits. Given my findings and the reasons that follow, I find the additional document requests from the respondent for pre-accident documentation were excessive.
37The applicant referred me to the case of N.Z. v Economical Insurance, 2020 CanLII 63563 (ON LAT). This case stands for the proposition that the amount of income accepted by the CRA is to be used when determining one’s pre-accident income from self-employment.
38I agree with the reasoning in that case. Although I am not bound by prior LAT decisions, I accept the statement of Adjudicator Mazerolle, when he states, in part, at paragraph 30:
…when s. 4(3) is read in conjunction with ss.4(5)-(6), there is further confirmation of this interpretation. That is, both sections direct insurers to rely on the amounts reported to (and then accepted by) the CRA when calculating one’s income…
39As such, I find that the applicant’s income should be calculated in accordance with s. 4(2)(1) of the Schedule. I further find that the applicant’s Notice of Assessment for 2022 verifies his pre-accident income and serves as the basis on which to calculate his income replacement benefits for the period November 17, 2022, to November 9, 2024.
40The applicant made submissions that he complied to the best of his ability with the numerous requests for documentation from the respondent. The applicant further argued that he should not be penalized for matters beyond his control, such as an employer changing accountants, or an employer’s failure to keep adequate records or complete employment files.
41The respondent argued that discrepancies between certain documents filed for the IRBs, the pay stubs/statements submitted by the applicant purporting to remit cheques, the nature of the employer/employee relationship based on cash payment, all point to a fictitious employer/employee relationship that was fabricated by the applicant to convince the respondent that pre-accident employment existed in order to gain the maximum amount payable for IRBs under the Schedule.
42Although I am alive to the issues raised by the respondent with respect to the discrepancies in some of the documentation presented by the applicant, I find that, where errors were made by the applicant, these were either made by others who were involved in the application process or were made by the applicant, but not part of a conscious wrong or for a misleading purpose.
43I am not satisfied, on a balance of probabilities, that the applicant’s errors in the documents provided to the respondent are part of a “wilful” misrepresentation. The applicant made submissions that English is not his first language, and that his struggles with language comprehension have contributed to these errors. I agree that the applicant’s difficulties with the English language were evident in both his viva voce evidence during the hearing, and in the transcript of the Examination Under Oath (“EUO”), conducted on May 15, 2024.
44The applicant made submissions that the existence of an employment file is something out of his control. I agree. I find that the lack of production of an employment file is something beyond the control of the applicant. While there was evidence before me that the applicant was the only employee of Power at the time of the accident, I heard no evidence of what past practices existed in this organization to suggest that the employer kept complete employment files, including the location and full addresses of job sites. I do not draw a negative inference against the applicant for his employer’s perceived failure to keep a complete employment file. I find it reasonable, under the circumstances, that the applicant was not able to remember the location of job sites, given that he was advised each day to report to the employer’s warehouse/office and from where he was taken to the work site.
45The respondent’s accountant, Jessy Hawley, testified that in this case both a Record of Employment (“ROE”) and a Statement of Account Summary of Source Remittances from an Employer to the CRA (i.e. for CPP, EI and income tax deductions) were filed late. In the former case, the ROE should have been filed within 15 days of interruption of earnings and in the latter, the witness testified that it was subject to the size of the business organization, and provided examples of monthly or quarterly remittances. In both cases, the witness testified that the documents were filed well beyond the allotted timeframes. However, I find that the respondent has not persuaded me that it was precluded from calculating IRBs because of late filed documents. I make this finding because the respondent’s own accountant testified under cross-examination that an employee has no control over what an employer is submitting to the CRA.
46Jessy Hawley also testified that with respect to the Remittance Notice, she advised the Tribunal that no payments had been made to the CRA on behalf of the applicant. The applicant’s testimony at the hearing was that any deductions (such as income taxes, CPP and EI) were to be made by his employer, Power, directly to the CRA. I find that the issue of the remittances to the CRA was also not something that the applicant had any control over as it was the responsibility of his employer to ensure these deductions and remittances were made on behalf of the employee. I also find that the production of the pay statement and the lack of timely documents retained by the employer to be out of the control of the applicant.
47I accept the applicant’s arguments that there are many instances in which cash payment is an accepted form of payment from an employer towards an employee. The respondent’s accountant testified that given the applicant’s employer was not keeping timely documents and information appeared to be produced because it was being requested by the respondent, such as pay statements, the employer was not appearing very reliable. The respondent’s accountant provided the illustration of producing pay statements when an employee is being paid in cash. I find the fact the applicant received cash instead of a cheque from his employer does not preclude the formation of a bona fide employer/employee relationship. I find that the existence of a cash payment arrangement between the applicant and his employer does not act as bar to the respondent calculating an IRB payment based on the applicant’s reported income to the CRA as accepted in the Notice of Assessment for the year prior to the accident.
48The respondent’s accountant requested documentation supporting the source and nature of the applicant’s post-accident deposits. The applicant submits that deposits to his bank account post-accident comprise of monies from the sale of property and other deposits from his credit card to make payments for his personal expenses. I find, on a balance of probabilities, that the applicant has provided sufficient evidence to establish the source and nature of his post-accident deposits. For example, the applicant has provided banking statements, including BMO statements, with deposits identified as both ABM deposits and online transfers for the period of employment with Power. I am persuaded that there is an evidentiary basis to accept that the applicant was depositing cash from employment, as well as paying for his daily expenses by online transfers. I also find an evidentiary basis to conclude that the applicant purchased and sold real estate, as he provided a statement of monies received and disbursed with respect to a property in Long Sault, Ontario with a closing date of April 30, 2020.
49The respondent made submissions that social media images of the applicant and his employer together in social situations was evidence of their friendship and lends credence to its argument they were close friends and therefore not in an arms length employment relationship. I accept the evidence before me that, in this community, the applicant and his employer may have known each other through various social interactions, including attendance at mosque and other social events, including trips out of province. The respondent, however, has not proven to me that the social media images go beyond what they purport to be. I am not convinced that simply because they (the applicant and his employer) both appear in the same social setting, that this is evidence of a close relationship resulting in a fabricated employer/employee relationship.
50To be eligible for IRBs during the pre-104-week period, an 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.
51The applicant relies on attendance at IEs to establish entitlement to IRBs during the pre-104-week period based on a substantial inability to perform the essential tasks of a handyperson/helper at his pre-accident employment.
52I am persuaded, on a balance of probabilities, that the applicant has established an inability to perform the essential tasks of a handyperson/helper at his pre-accident employment for the following reasons. The IE conducted by Dr. Vidya Sreenivasan, physiatrist, on June 15, 2024, concludes that the applicant would be unable to perform overhead tasks, including painting, or tasks that require repetitive use of his right arm, such as lifting, carrying and installation of flooring. The report also noted that, during the examination, the applicant was unable to perform any right shoulder ranges of movement and demonstrated limited range in the right wrist. Given the applicant’s testimony that he would be unable to reach overhead to complete tasks, such as painting or other repetitive tasks, I am satisfied that he has met his burden to demonstrate a substantial inability to perform the essential tasks of his employment.
53I also rely on the assessment report by Dr. George Semerdjian, Doctor of Chiropractic, dated May 7, 2024, which concludes that “the claimant’s pre-accident strength demands on a regular basis for this employment position was deemed to be up to the heavy strength category.” Based on the assessments of Drs. Sreenivasan and Semerdjian, I find the applicant has met his burden, on a balance of probabilities, to prove entitlement to IRBs for the pre-104-week period.
54I find the applicant is entitled to an IRB of $400.00 per week from November 17, 2022 to November 9, 2024.
Is the applicant entitled to $525.00 for a vision assessment proposed by Graeme Ferguson in a plan submitted May 16, 2024?
55The applicant has not demonstrated he is entitled to $525.00 for a vision assessment proposed by Graeme Ferguson, optometrist, in a plan submitted May 16, 2024.
56To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
57The OCF-18 states that the goals of the plan are to determine if there are any binocular vision or visual perceptual issues and seeks to achieve a return to activities of normal living. The plan includes an initial assessment, with a cost of $375.00, and a documentation cost of $150.00, for a total of $525.00. The plan lists the injury and sequelae information as post-concussion syndrome.
58The applicant made submissions that he is entitled to a vision assessment because of impairments suffered directly from the accident; however, the applicant did not direct me to contemporaneous medical evidence to support such a claim.
59The respondent made submissions that the applicant is not entitled to the treatment and assessment plan, as he has not provided medical evidence to substantiate that the plan is reasonable and necessary.
60The Tribunal has long held that, for a treatment and assessment plan to be reasonable and necessary, an applicant must demonstrate through contemporaneous medical evidence that they are entitled to the plan as a result of an impairment suffered as a direct result of the accident. Reliance on an OCF-18 alone is insufficient medical evidence to find a plan as reasonable and necessary.
61The applicant has not pointed me to contemporaneous medical evidence that would support the vision assessment as being reasonable and necessary. My review of the medical records at or near the time of the accident include clinical notes and records (“CNRs”) from Cornwall Medical Practice walk-in clinic, dated November 14, 2022. In that record, there is no reference to a referral for a vision assessment or vision test of any kind. Further, in a CNR from the same clinic, dated June 1, 2023, there is no referral for a vision assessment nor any reference to a concussion that requires examination of visual perceptual issues. For these reasons, I find the visual assessment is not reasonable and necessary.
62The applicant is not entitled to a visual assessment in the amount of $525.00 as proposed by Graeme Ferguson, optometrist.
Is the applicant entitled to $3,621.71 for a recliner chair proposed by Janet Becker in a plan submitted March 18, 2024?
63I find the applicant has not demonstrated that he is entitled to $3,621.71 for a recliner chair proposed by Janet Becker, occupational therapist.
64The OCF-18 lists the cost of the plan as follows: documentation completion of OCF-18 at $200.00, recliner chair at $2,903.98, delivery service at $79.95, occupational therapy letter of rationale at $49.87, and tax of $387.91, for a total of $3,621.71. The injury and sequelae that are a direct result of the accident are listed as intracranial injury and brachial plexus disorders. The plan lists the goals as provision of a recliner chair for positioning and pain management to return to activities of normal living.
65As stated previously, an OCF-18 alone cannot serve as medical evidence for a finding that a treatment and assessment plan is both reasonable and necessary. The Tribunal must have contemporaneous medical evidence to support such a claim. In the absence of such evidence, the treatment and assessment plan cannot be supported as reasonable and necessary, and the claim must be denied.
66The applicant made submissions that IEs confirmed that he is entitled to the treatment plan as stated above, because it is reasonable and necessary as a result of physical impairments suffered directly by the accident.
67The respondent made arguments that the applicant has not directed the Tribunal to medical evidence to support such a claim is both reasonable and necessary.
68I agree with the respondent. The applicant has not pointed me to contemporaneous medical evidence that would support the reclining chair as being reasonable and necessary. Dr. Sreenivasan, physiatrist, states in her report dated June 25, 2024:
…a recliner chair will not alleviate Mr. Hussain’s musculoskeletal complaints or assist in his return to his pre-accident activities. From a musculoskeletal perspective, these goods and services are not reasonable and necessary.
69Similarly, the report from the neurosurgery IE, conducted by Dr. Charles Agbi, neurosurgeon, states in response to the reasonableness and necessity of a reclining chair (dated July 9, 2024):
…from a neurosurgical perspective, there is no objective neurological finding to explain his (applicant) ongoing disability. I will defer to the opinion of the physiatrist on file, Dr. Vidya Sreenivasan, regarding the necessity and potential benefit of the recommendations. Further information may also be provided by pending electrodiagnostic studies.
70Given the lack of contemporaneous medical evidence to support this claim, I find the request for a recliner chair not to be reasonable and necessary. I am persuaded by the IE report of Dr. Sreenivasan, because she provided recommendations for further diagnostic testing and the possible benefit of pain medication, but she specifically ruled out any benefit from a recliner chair. Further, I had no competing medical expert opinions to suggest a recliner chair is reasonable and necessary for the applicant.
71The applicant is not entitled to a recliner chair as proposed by Janet Becker, occupational therapist.
Interest
72Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
73I find the applicant is entitled to interest for the IRB owing from November 17, 2022, to November 9, 2024, pursuant to s. 51 of the Schedule.
Award
74The 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.
75I find that the applicant is not entitled to an award.
76The applicant made submissions that he had intended to call the respondent’s adjuster as part of the claim for an award based on unreasonable conduct by the respondent in denying the IRB claim and treatment plans. The applicant’s arguments for an award stem in part from the numerous requests for documentation from the respondent that he claims were unfounded. I note that the respondent’s adjuster was listed on the respondent’s list of witnesses but was not called to testify by the respondent. The adjuster, however, was not on the applicant’s list of witnesses.
77I disagree with the applicant’s position with respect to the award claim. The respondent was making requests for additional documentation further to requests made by its own accountant. Although the applicant disagreed with the number of requests, the genesis of these requests stems, in part, to errors made by the applicant. Therefore, even though I found those errors did not amount to wilful misrepresentation, the applicant was responsible for several errors that were solely his responsibility. In that respect, the applicant is the cause of the requests he is now using to justify his award claim. I find the respondent made reasonable efforts to comply with its statutory obligations. As such, even though it reached an incorrect interpretation of the Schedule for the IRB, such requests do not amount to unreasonably withheld or delayed payments.
ORDER
78For the reasons stated above, I find that:
i. The applicant is entitled to IRBs for the period of November 17, 2022, to November 9, 2024, plus interest;
ii. The applicant is not entitled to either a vision assessment or recliner chair as contemplated in the two OCF-18s; and
iii. The applicant is not entitled to an award under Regulation 664.
Released: November 28, 2025
Jim Zotalis Adjudicator