Raka v. Wawanesa Insurance, 2025 CanLII 28452

Citation: Raka v. Wawanesa Insurance, 2025 ONLAT 23-006266/AABS

Licence Appeal Tribunal File Number: 23-006266/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:

Gentrit Raka

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Matthew K. Dale, Counsel

For the Respondent: Nicholas L. Mester, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Gentrit Raka, the applicant, was involved in an automobile accident on December 4, 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, Wawanesa Insurance, 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 in the amount of $400.00 per week from March 15, 2023, to date?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

iii. Is the applicant entitled to costs?

RESULTS

3The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from March 15, 2023, to date.

4The applicant not entitled to interest on any overdue payment of benefits.

5The applicant is entitled to $500.00 in costs.

ANALYSIS

Income Replacement Benefits (“IRB”)

6I find the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from March 15, 2023, to date, for the following reasons.

7In consideration that the applicant’s accident occurred on December 4, 2019, I find the benefits sought by the applicant fall within the post-104-week (“post-104”) IRB benefit because December 1, 2021, marks the 104-week period after the accident.

8To receive payment for a post-104 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.

9The applicant’s position is that the post-104 IRB was approved by the respondent, and then denied four days later, without any change in the applicant’s condition. The approval should be maintained because there have been no material changes in the applicant’s condition, and he continues to suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

10The respondent’s position is that the applicant has not proven that he meets the test for post-104 IRBs.

11In a letter dated November 24, 2022, the respondent stated, “We have determined that Income Replacement Benefits continues to be reasonable and necessary.” The letter refers to and relies on the conclusions of the following Insurer’s Examinations:

i. The Physiatry Assessment report of Dr. John Heitzer, physiatrist, completed on September 27, 2022;

ii. The Functional Abilities Evaluation of Ms. Mindy Gula, kinesiologist, completed October 5, 2022

iii. The Psychology Assessment of Dr. Paul Derry, psychologist, completed on October 25, 2022; and

iv. A Vocational Assessment report and Labour Market Survey report of Ms. Kelly-Ann Smith, vocational consultant completed on September 29, 2022, reports dated November 15, 2022.

12Four days later, the respondent sent a second letter dated November 28, 2022. This letter stated, “We have determined that Income Replacement Benefit is no longer reasonable and necessary.” This letter refers to and relies on the same Insurer’s Examination reports.

13The applicant submits that without new information to support a denial of the IRB, the original decision should stand.

14I have considered that the post-104 IRB began on December 21, 2021, the respondent conducted Insurer’s Examinations between late September and early October 2022. The vocational assessment report is dated November 22, 2022, and the respondent’s letters to the applicant followed immediately. I find this supports that the respondent continued to adjudicate the applicant’s claim and relied on the assessor’s conclusions in November 2022. Only four days passed between the sending of the first letter granting the continuation of the benefit and the sending of the second letter, denying the benefit.

15On close review of the two letters from the respondent, I find that the reasons provided in each letter are the same, although worded somewhat differently.

16In my view, the reasons in the letter dated November 24, 2022, do not support the respondent’s stated conclusion that post-104 IRB are reasonable and necessary. In both letters, the reasons provided do support the conclusion stated in the letter dated November 28, 2022, that the applicant does not suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

17I do not accept the applicant’s submission that the previous payment of the benefit demonstrates the respondent believed the applicant met the eligibility test, because the respondent had recently conducted Insurer’s Examinations to assess the applicant’s eligibility. Also, I do not accept that the benefit was stopped without evidence because the respondent relied on the assessor’s conclusions.

18In my view, the November 28, 2022 letter was a correction of the November 24, 2022 letter and given the short turn-around of two business days, and the reliance on the same reasons given in the November 24, 2022, letter, I find that no new evidence was required by the respondent to deny the post-104 IRB.

19Furthermore, the applicant has not led evidence that supports that the applicant suffers from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience. The applicant relies on an Optometry Report of Dr. Riyad Khamis, optometrist, dated September 9, 2022, in which Dr. Khamis diagnoses the applicant with post-concussion vision syndrome, convergence insufficiency, oculomotor dysfunction, and visual information processing issues. However, I find that Dr. Khamis does not provide information as to what, if any, functional limitations are caused by these conditions. In Dr. Khamis’ progress report dated January 5, 2024, he opines that the applicant has improved, but will continue to require rehabilitation.

20The applicant also relies on the psychological assessment report of Dr. Tony Iezzi, psychologist, dated June 14, 2023. Dr. Iezzi diagnoses the applicant with Pain Disorder and Major Depressive Disorder as a result of the accident and opines that the applicant would be unable to return to his previous employment or any other employment consistent with his training, education, or experience. Dr. Iezzi opined that the applicant’s reduced energy and endurance precludes him from participating in all activities of daily living and work. I give this report little weight because Dr. Iezzi’s opinion of the applicant’s physical condition as well as his psychological conditions appear to be based solely on the subjective reporting of the applicant without objective examination or testing. According to the documents listed as having been reviewed at the time of the assessment, Dr. Iezzi did not review the respondent’s assessment reports, which could have provided additional information based on objective examinations of the applicant.

21In the absence of supporting evidence, I find the applicant has not proven on a balance of probabilities that he has suffered from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

22The applicant is not entitled to post-104 IRB.

Interest

23As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

Costs

24I find the applicant is entitled to costs in the amount of $500.00 for the following reasons.

25Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023. In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system. The Tribunal may deny or grant the request for costs or award a different amount than requested. The amount of costs shall not exceed $1000.00 for each full day of attendance at a motion, case conference or hearing.

26It is the applicant’s submissions that the respondent has shown irreverence to the Tribunal and its proceedings by willfully ignoring the production orders.

27The respondent submits that the applicant was also in breach of the case conference report and order (“CCRO”), and therefore no costs should be awarded. The respondent also submits that a portion of the records were obtained from non-parties and the respondent should not be held accountable for any delay. Furthermore, the respondent argues that the delay did not affect the fair determination of the hearing in this matter as the materials were provided “well in advance” of making submissions for this hearing.

28The case conference of December 12, 2023, resulted in a CCRO dated January 19, 2024, which included production orders for:

i. [T]he complete files and records from the IE assessors who prepared reports that relate to the issues in dispute, including, but not limited to, any and all emails, internal communications (be it internal electronic systems, email or hard copy communication), communication with each other, communication with the adjuster, including drafts, rough notes, correspondence, background material provided and memoranda, draft reports, clinical notes and records made before, during or after examination of the applicant; and

ii. [A] copy of the adjusters’ file from the date of loss to the date of the application [May 31, 2023], redacted for privilege and reserves with the basis for the redaction indicated.

29The deadline for these productions was 60 calendar days from the date of the case conference, that being February 10, 2024.

30On June 12, 2024, the applicant filed a Notice of Motion requesting:

i. Order the respondent to comply with the production orders;

ii. Award costs for the motion; and

iii. Grant such further and other relief as the Tribunal may deem just.

31The relief of an order for production was denied by Adjudicator Evans on June 18, 2024, on the grounds that the Tribunal had already made an order and to do so again would be redundant. The issue of costs was deferred to this hearing adjudicator.

32The respondent produced the documents on June 26, 2024. I note that this is 137 days late, and 65 calendar days before the hearing date of August 30, 2024.

33The applicant led evidence that the documents he agreed to exchange had been provided to the respondent by February 6, 2024, and as such the applicant was not in breach of the CCRO, as submitted by the respondent. The respondent has not directed me to evidence that shows when the non-party records were received. I have also considered that the adjuster’s log notes were in the respondent’s possession at all times. I am not persuaded that the respondent was not accountable for the delayed productions.

34I do not agree with the respondent that delay in productions did not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. I find that the fairness, efficiency, and effectiveness does not refer only to the Tribunal itself; but rather to the dispute resolution process and all of the actions that must be taken by the parties in order to access the Tribunal system. In the case at hand, I find the respondent’s failure to respond to the applicant and abide by the CCRO, interfered with the efficiency of the dispute resolution process, and caused the applicant to incur additional cost, unfairly elevating the overall cost of accessing the Tribunal system.

35The per diem limit as set out in Rule 19 is $1000.00. I find that $500.00 is an appropriate amount for costs because the applicant’s attempts to obtain the records were frustrated by the respondent’s breach of the CCRO.

ORDER

36The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from March 15, 2023, to date.

37The applicant is not entitled to interest on any overdue payment of benefits.

38The applicant is entitled to $500.00 in costs.