LAT CASES SUMMARY 1.advocast.ca/assets/pdf/lat2017/5_3 LAT CASES SUMMARY.pdf · 2017-04-03 · of...

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LAT CASES SUMMARY

Last update cases available as of: March 8, 2017

1.

Case Name: Applicant and Intact Insurance Company, 2016 CanLII 60729

Date of Decision: August 16, 2016

Adjudicator: Panel: Vice-Chair J.R. Richards, and Adjudicator Nicole Treksler

Hearing Type: Teleconference

Summary: At the Case Conference, the parties agreed that the treatment plan in dispute had already been resolved, but were unable to agree on the issue of costs. At the hearing, the issue was whether the Claimant could recover his fees/costs, and whether the costs of the proceeding could be recovered pursuant to Rule 19.1 of the LAT Rules of Practice and Procedure. Rule 19.1 of the LAT Rules provides that a party could make a request to the Tribunal for its costs where it believes that another party in a proceeding had acted unreasonably, frivolously, vexatiously, or in bad faith. The Tribunal noted that post April 1, 2016 s.281(11) of the Insurance Act had been repealed, which was interpreted as a clear statement of the legislature’s intent to limit the circumstances where the Tribunal can award costs in a proceeding. However, a repeal of s. 281(11) did not prevent parties from negotiating costs and disbursements between themselves as they settled files. As the Tribunal only had jurisdiction to award costs under Rule 19.1 where a party in a proceeding had acted unreasonably, frivolously, vexatiously or in bad faith, the Tribunal ordered that a second hearing by teleconference should take place to assess whether or not the Claimant was entitled to recover costs pursuant to Rule 19.1, and whether the insurer unreasonably withheld or delayed payment to the Applicant pursuant to s.10 of O. Reg. 664.

2.

Case Name: Applicant and Motor Vehicle Accident Claims Funds, 2016 CanLII 67140,


Adjudicator: Lori Marzinotto

Hearing Type: Teleconference Note: An order from the case conference stated the Claimant would testify by way of affidavit and cross examined via telephone, the Claimant did not provide an affidavit. Instead, he provided in person provided in-person evidence, which MVACF did not object to, and he was provided oral evidence and was cross-examined in person. The case conference adjudicator also presided over the hearing on consent of both parties.

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Summary: The Claimant was seeking non-earner benefits as a result of the accident. In October 2013, MVACF sent correspondence to the Claimant at his parent’s home requesting he attend an Insurer’s Examination. He failed to attend, and MVACF terminated his non-earner benefits. An Insurer’s Examination was rescheduled, which the Claimant attended, after which non-earner benefits were reinstated. At the hearing, the Claimant’s position was that benefits should be paid during the period of non-compliance as he had a reasonably explanation for his non- attendance. At the hearing, the Claimant’s evidence was that he had sought addiction treatment at three different treatment centers during the notice letter from MVACF was sent to him as well as receiving mail at his parents’ and wife’s home. Once he was made aware of his notice of non-compliance in February 2014 by his lawyer, he immediately sought to reschedule the examination. The Adjudicator took issue with MVACF’s failure to notify the Claimant that he had missed the insurer examination scheduled for October 2013 until February 2014 and there was no evidence presented to suggest that MVACF followed up with the Claimant prior to February 2014. MVACF did not cross examine the Claimant at the hearing. While the Adjudicator noted it would have been prudent for the Claimant to provide the insurer with an updated address, especially while he was in receipt of other accident benefits, the Adjudicator accepted that the applicant had been in several different rehabilitation treatment centres seeking addiction treatment and found his evidence credible. As he had a reasonable explanation for the original non-compliance, and there was no evidence of delay on behalf of the Claimant after he learned of the missed insurer’s examination in contrast with the significant period of delay by the insurer, the Adjudicator ordered that non-earner benefits be paid during the period of original non–compliance.

3.

Case Name: S.S and State Farm Mutual Automobile Insurance Company, 2016 CanLII 67137


Adjudicator: Jeanie Theoharis

Hearing Type: In Writing

Summary: At issue at the Hearing was whether or not the Claimant’s injuries fell out of the Minor Injuries Guideline and one treatment plan for chiropractic treatment and massage therapy with interest. The Adjudicator examined the medical records submitted, and found that the evidence, taken as a whole did not support a finding of cervical radiculopathy, and then instead accepted the diagnosis of the Claimant’s family doctor, being a whiplash injury. The Adjudicator felt that the

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Claimant’s health practitioner did not present sufficient documentary evidence with supporting reasons and analysis to establish that the Claimant cervical radiculopathy, noting that they failed to conduct for example a nerve conduction test, and that the absence of further testing and supporting reasons and persuasive analysis diminish the weight of the Insurer’s assessor’s conclusion. Coming to the conclusion based on the Claimant’s complaints of pain and not conducting further test and assessment did not satisfy, on the balance of probability, the diagnoses of cervical radiculopathy and the Adjudicator preferred the evidence of the Insurer over the evidence presented by the Claimant. The Claimant also did not provide compelling evidence that he had a pre-existing condition which would prevent him from being treated within the $3,500 dollars Guidelines limits. The Adjudicator concluded that the Claimant’s injuries fell within the MIG, the Claimant was not entitled to receive the OCF-18 medical benefit and was not entitled to interest.

4.

Case Name: A. P and Aviva Canada Inc., 2016 CanLII 60728

Date of Decision: September 1, 2016

Adjudicator: Vice-Chair D. Gregory Flude


Summary: The issues in dispute where whether the Claimant suffered predominantly minor injuries, whether the Claimant was entitled to payment of income replacement benefits at rate of $382.55 per the week for period of February 17, 2016 and May 3, 2016 and two treatment plans for medical benefits for physiotherapy and chiropractic treatment. In his analysis, Vice-Chair Flude noted the Claimant was involved in a prior motor vehicle accident 2005, in which she suffered similar cervical spine injuries, and while the Applicant’s assessor referred to the treatment following those injuries as “another possible factor” he declined to express an opinion on the impact the earlier injuries on the Claimant’s recovery, and deferred to another assessor, however, no further opinion or report was provided. On that basis, Vice-Chair Flude found the Claimant’s failed to satisfy her onus to show compelling evidence that she could not achieve maximum recovery within the MIG because of pre-existing condition. Similarly, on a review of medical records provided, Vice-Chair Flude found no evidence that the Claimant incurred anything other than soft tissue injuries, and insufficient evidence to support a finding of that the Claimant suffered from chronic pain syndrome. With respect to income replacement benefits Vice-Chair Flude preferred the Insurer’s assessors’ conclusions as they provided reports on both methodology and their conclusion, which Vice-Chair Flude found was unchallenged by anything submitted by the Claimant. Vice-Chair Flude

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found that the Claimant was able to perform the essential tasks of her employment by February 16, 2016 when the IRB payment was stopped.

5.

Case Name: K. P. and Aviva Canada Inc., 2016 CanLII 60727




Summary: The issue in dispute was whether the Applicant’s injuries fell within the MIG. In reviewing the medical records provided, Vice-Chair Flude noted that despite the numerous condition and symptoms in the Claimant’s submissions, there was no medical evidence that tied any specific condition to the accident, or indicated any specific condition or symptoms were anything more than a soft tissue injury or conditions arising out of a normal lifestyle that was independent of the accident. Vice-Chair Flude was unable to find support for the Applicant’s assertion that she had radiculopathy other lumbar region, and noted that the statement relied on by the Applicant for the assertion came from her family doctors, except for a possibility of radiculopathy indicating “exam findings are equivocal for radiculopathy”, and Vice-Chair Flude disagreed with its elevation to a definitive diagnosis. Vice-Chair Flude found that this interpretation was inconsistent with the totality of the family doctor’s clinical notes and records. At best, Vice-Chair Flude found that the evidence relied on by the Applicant was equivocal, and was not clear whether the Applicant’s assessor was asserting the limit of $3,500.00 was insufficient to achieve the goals of the treatment plan or whether she was of the opinion that she must work within that restriction. No further clarification was provided. Vice-Chair Flude found the evidence felt short of compelling. The Claimant injuries were held to fall within the MIG, and the treatment plan was not reasonable and necessary.

6.

Case Name: J. H. and Intact Insurance Company, 2016 CanLll 60731


Adjudicator: Cynthia Pay


Summary: The issue in dispute was whether the insurance company was required to pay for mileage expenses for the Claimant’s service providers and the treatment plans under dispute. The Claimant was catastrophically impaired, and asserted that his service providers should be entitled to mileage costs, as his service providers had to travel from surrounding areas to provide him treatment as he lived in

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an area where access to treatment was limited. Adjudicator Pay concluded that the SABS was clear regarding whether insurers were required to pay for mileage costs for the Claimant’s service providers, and did not need to rule on whether or not the Superintendent’s Guidelines were retroactively applicable, or whether or not they were binding. Adjudicator Pay accepted that the SABS provided specifically for “transportation for the insured person to and from treatment sessions” as well as for transportation for the insurance person aid or attendant, but made no mention of a requirement to provide transportation costs for the treatment provider. Adjudicator Pay distinguished the decision of Maude v. State Farm as that decision found that “the best resources” for treatment were not locally available to the Claimant. In the present case, the Tribunal had no evidence before it regarding the Claimant’s living situation, availability of treatment in his community and treatment needs, which were not included in agreed statement of facts. Second, travel disputes were noted to not be in dispute, and only mileage costs were denied. Adjudicator Pay therefore held that the insurance company was not required to pay mileage expenses for service providers in the claimed treatment plan.

7.

Case Name: S. L. and Certas Home and Auto Insurance Company, 2016 CanLII 60726



Hearing Type: In Writing, Motion

Summary The issue was brought on a Motion by the insurer to prohibit the Claimant from bring an Application for accident benefits because she failed to attend an insurers examination under s.44 of the Schedule. The insurer sought to evoke the exclusionary provision of s.55(1) of Schedule and took the position that s.280 (2) of the Insurance Act along with s. 55 Act as complete prohibition to the Claimant applying to the Tribunal for the resolution of entitlement to accident benefits. In response, the Claimant raised the decision of Augustin v. Unifund, and took the position that the notice was defected. Vice-Chair Flude found the positon in Augustin persuasive while noting the decision in FSCO was not binding and applied the reasoning in Augustin to the facts, and found the 2011 notices failed to set out adequate medical and other reasons for the insurer examination. In his assessment, Vice-Chair Flude rejected the insurers position that the Claimant’s failure to raise the issue of defective notice in the earlier proceeding prejudice it, noted the insurer had failed to establish a detrimental reliance base on the facts before the Tribunal. Vice-Chair Flude noted the Augustine decision was released November 2013, and

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that it was opened to the insurance company, at that time, to revisit its notices and to correct the defect. No action by the Claimant prevented it from doing so. Instead, Vice-Chair Flude noted that what in fact occurred was that the Claimant abandoned its claim in 2011, the denial of those claims having occurred in 2011, and was well past limitation period for any further appeal on the denial. The insurance company ultimately was noted to have benefited from the Claimant’s failure to assert this deficiency of the 2011 notices. Vice-Chair Flude found that the insurance company’s position had not been changed or compromised in any way had it had always maintain that the Claimant fell within the MIG, and now that in 2016 the Claimant filed another treatment plan suggesting she did not fall within the MIG, since receiving it, and it remain open to the insurance company to serve the appropriate notice for her to attend to one of more IEs, and was exactly in the same position with respect to the treatment plan as it was in 2015 with the earlier treatment plan. The Motion was dismissed.

8.

Case Name: D.M. and RBC General Insurance Company, 2016 CanLII 67138


Adjudicator: Anna Truong


Summary In dispute was whether the part of a Treatment Plan for cleaning and repairs to the Applicant’s home was reasonable and necessary, and whether the Applicant was entitled to the $384.17 cost difference for the amount submitted and approved on a Treatment Plan versus that paid for a dishwasher. Adjudicator Truong noted that there was no dispute over whether the Applicant had sustained impairments, or over the nature of those impairments, and therefore accepted the evidence that the Applicant had sustained impairments as in the reports submitted. Adjudicator Truong accepted that home modifications referenced in section 16(3)(i) of the SABS could include reasonable and necessary home repairs. Adjudicator Truong noted that the OT’s comment that the housecleaning proposed would be of benefit to the Applicant but not payable because of the Applicant’s lack of coverage, was beyond the assessor’s expertise as a medical expert as it was a legal question. Adjudicator Truong therefore gave no weight to the OT’s opinion that housecleaning was not payable due to the lack of coverage. Adjudicator Truong also equated housecleaning with housekeeping, which was specifically excluded under section 16(3)(l), and therefore found the item not payable.

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On the other hand, Adjudicator Truong further found that a home repair could be a home modification and payable pursuant to section 16(3)(i) of the SABS, and found payable all the proposed repairs which were directly linked to the Applicant’s safety and increased risk of failing as a result of her accident related impairments payable. With respect to the dishwasher expense, Adjudicator Truong found that the Treatment Plan was submitted and approved in the amount of $711.90, and the Applicant failed to provide sufficient evidence why it was reasonable and necessary to purchase a more expensive dishwasher, despite the Applicant’s claim that the more expense dishwasher was more reliable, noting the Applicant failed to provide evidence to support this claim, and none of the experts stated a specific brand of dishwasher was needed.

9.

Case Name: Applicant and The Dominion of Canada General Insurance Company, 2016 CanLII 67139

Date of Decision: October 3, 2016


Hearing Type: In Writing, Preliminary Issue

Summary The Applicant was seeking non-earner benefits from September 10, 2014 to “unknown” and income replacement benefits from October 24, 2014 to “unknown”. The Applicant took the position that she did not have to decide which benefit she was proceeding with at the hearing. The Applicant alleged that as Dominion had not sent her an election form, she did not have to make an election, but acknowledged that she was not entitled to be paid for both benefits at the same time. Dominion alleged that a form was not sent as the Applicant “qualified” for income replacement benefits for a short time, but because she reported “nil” self-employment income, Dominion determined that $0.00 was payable. The Preliminary Issue was whether the Applicant could pursue either benefit. Adjudicator Marzinotto found that pursuant to section 35(1) of the SABS, the Applicant was entitled to notice from Dominion to elect the benefit she wished to receive. In her analysis, Adjudicator Marzinotto followed Galdamez v. Allstate, 111 O.R. (3d) 321 (C.A.) that an insured’s status as an employed person did not in itself establish that the insured was ineligible for the non-earner benefit. Adjudicator Marzinotto found that initially a Notice of Election was not required as the OCF-1 indicated the Applicant was unemployed, but once the completed Disability Certificate was provided which indicated the Applicant was self-employed, the Applicant may have been eligible for either benefit and a Notice of Election should have been provided, or at minimum, Dominion should

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have advised the Applicant she was eligible for one of the benefits. Adjudicator Marzinotto held the Applicant was entitled to seek both income replacement benefits and non-earner benefits in her Application, and could proceed to a hearing before the Tribunal to determine her entitlement to either benefit.

10.

Case Name: M.R. and Aviva Insurance Company of Canada, 2016 CanLII 78332


Adjudicator: Vice-Chair J.R. Richards

Hearing Type: Teleconference, Preliminary Issue

Summary The Insurer sent an Explanation of Benefits to the Applicant beginning two months after her OCF-1 was submitted (February 18, 2014, March 4, 2014, April 29, 2014, and May 6, 2014) advising that she was to be treated under the MIG, and therefore did not qualify for attendant care benefits. The Applicant did not apply to the Tribunal until May 6, 2016 to dispute the denial, and the issue was whether the Applicant was barred by failing to file her claim within the two-year limitation period pursuant to section 280(2) of the Insurance Act, and section 56 of the SABS. The Applicant argued, and Vice-Chair Richards agreed, that she did not claim attendant care benefits at any point prior to March 12, 2016, when she underwent an Assessment of Attendant Care Needs, and the Insurer could not deny a benefit prior to her application for that benefit. Vice-Chair Richards noted that section 42 of the SABS outlined that an application for attendant care benefits must be on a form entitled “Assessment of Attendant Care Needs” and prepared by an occupational therapist or registered nurse. Vice-Chair Richards found that the OCF-1 is a general form, noting that the SABS required that an insured person apply for attendant care benefits in a very specific manner and until the form was filled out and received, there were no attendant care benefits for the Insurer to deny. Vice-Chair Richards also found that the language used by the Insurer was not clear and unequivocal, following Smith v. Co-operators General Insurance, [2002] 2. S.C.R. 129, and therefore not valid for the purpose of triggering a limitation period. Although the Explanation of Benefit forms stated “You do not qualify for the Attendant Care benefit as there is no coverage for this under the Minor Injury Guideline”, Vice-Chair Richards found that advising someone they did not qualify for a benefit as there is “no coverage” was not the same as refusing to pay a benefit that had been claimed and would not be understood or appreciated by an unsophisticated person. Further, that the form neither reduced nor

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stopped a benefit as required by the Insurance Act, failed to address what the Insurer would pay as required by the SABS, and the blanket term “no coverage” rendered the form unclear. Vice-Chair Richards found that the Applicant was not barred from bringing her claim to the Tribunal as she did not exceed the two-year limitation period set out in the Insurance Act and SABS.

11.

Case Name: M.S. and Primmum Insurance Company, 2016 CanLII 73691


Adjudicator: Chris Sewrattan


Summary The issue was whether the Applicant’s injury was outside the definition of “minor injury” in the MIG, and entitled to a Treatment Plan in excess of the MIG limit. Adjudicator Sewrattan denied the Applicant’s claim for his failure to put any evidence before the Tribunal. Adjudicator Sewrattan noted that at the Case Conference, the parties were given deadlines for written argument and evidence, but that the Applicant’s materials were atypical as they addressed issues different from those identified in the Case Conference Adjudicator’s Order, and referenced exhibits which were not attached. Primmum raised the issue of the burden of proof in its written argument, but no reply materials were received by the Applicant. Adjudicator Sewrattan gave the parties an opportunity to convince the Tribunal why the exhibits should be submitted after the deadline, and deadlines were given for these submissions, which Primmum provided, but the Applicant did not. As the Applicant failed to put any evidence before the Tribunal, his appeal was dismissed.

12.

Case Name: Applicant and Old Republic Insurance Company, 2016 CanLII 73692 (Note: There is a later Reconsideration Decision by Executive Chair Lamoureux, December 2, 2016)




Summary The issue was whether the Applicant was entitled to an income replacement benefit for the period of March 25, 2016 to May 21, 2017. Old Republic submitted that the accident did not materially contribute to the Applicant’s alleged inability to work as the clinical notes and records of the family doctor did not indicate right shoulder pain until a visit

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approximately 20 days after the accident (June 10). However, Adjudicator Sewrattan found that a review of the records, including the family doctor’s and chiropractor’s records made it clear that the Applicant complained of and was diagnosed with right shoulder pain and back pain prior to June 10. In his analysis, Adjudicator Sewrattan preferred the evidence of the Applicant’s physiatrist and psychologist, noting that Old Republic’s physiatrist opined the Applicant’s ability to perform the essential tasks of her employment without discussing what those essential tasks were, and did not consider the CAT scans, X-rays, and MRIS conducted after the accident and only relied on the Applicant’s description of these documents. While Adjudicator Sewrattan considered the psychological reports presented, he made his decision “fundamentally on the Applicant’s physical condition” and accepted based on the evidence that the Applicant was substantially unable to perform the essential tasks of her employment as a school bus driver. Adjudicator Sewrattan therefore held that the Applicant was entitled to receive a weekly income replacement benefit in the amount of $292.46 from March 25, 2016 to May 21, 2017.

13.

Case Name: D.S. and Certas Home and Auto Insurance Company, 2016 CanLII 73693




Summary The issue was whether the Applicant submitted an application for non-earner benefits. The Applicant asserted that the OCF-1 and Disability Certificate comprised an application for non-earner benefits. Adjudicator Pay rejected Certas’ argument that without a complete Disability Certificate confirming that the insured person meets the eligibility test for non-earner benefits, the Applicant failed to meet the requirements of section 36 of the SABS, and therefore the Application should be dismissed pursuant to the Tribunal’s Rules 3.4(b) and (c). Adjudicator Pay found that the overall interaction between the Applicant and Certas demonstrated that the Applicant made a complete application for the benefit which Certas acknowledged, and the Applicant should not be precluded from proceeding to a hearing on the issue of her eligibility for non-earner benefits.

14.

Case Name: B.U. and Aviva Canada Inc. , 2016 CanLII 96167

Date of Decision: November 1, 2016

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Adjudicator: Chloe Lester

Hearing Type: Hybrid – Written submissions and oral evidence via teleconference. The Applicant advised at the commencement of the hearing that he would be recording the hearing. The parties and the Tribunal agreed to the recording as long as a copy was provided to the respondent after the hearing.

Summary The issues in dispute were whether the Applicant’s injuries fell within the MIG, entitlement to attendant care benefits, and whether a total of seven Treatment Plans for medical benefits and cost of examinations were reasonable and necessary. After a review of the conflicting reports, Adjudicator Lester found that many of the Applicant’s physical injuries were minor in nature, and he did not suffer from any pre-existing conditions which would have prevented him from achieving maximum medical recovery within the MIG limits. While the Applicant relied on Arruda v. Western (FSCO A13-003926) to support the proposition that chronic pain syndrome falls outside the MIG, Adjudicator Lester found that the Applicant failed to show how the diagnosis of chronic pain syndrome from one of the reports was not a sequelae of the soft tissue injuries. However, from a psychological perspective, Adjudicator Lester found that the Insurer’s psychologist’s findings were in contrast to the findings of many other examiners which constituted overwhelming evidence that supported the position that the Applicant suffered from a psychological impairment as a result of the accident. Therefore his injuries were not minor. Adjudicator Lester also found several of the Treatment Plans which were reasonable given the psychological impairment findings and which were in line with other approved treatment, and therefore payable. With respect to entitlement of attendant care benefits, Adjudicator Lester found that there was sufficient evidence presented that he was mostly independent with his activities of daily living or that he was functionally capable of doing them. In addition, Adjudicator Lester noted that no evidence was put forward pursuant to section 3(7)(e) and 19 of the SABS that attendant care benefits were incurred or an economic loss of a non-professional provider sustained.

15.

Case Name: J.T. and Intact Insurance Company, 2016 CanLII 78333


Adjudicator: Panel: Nicole Treksler and Chris Sewrattan

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Summary The original issue in dispute was the necessity and reasonableness of a Treatment Plan for psychological services. This issue was resolved prior to the Case Conference, however, the Applicant sought costs. In the Preliminary Issue hearing decision released August 16, 2016, it was determined that the Tribunal had jurisdiction to award costs under Rule 19.1, and even though the main issue had been resolved the Applicant could make a request for costs in writing or orally at a case conference, hearing, or any time before the decision or order was released. The Tribunal Panel found that no costs were recoverable by either party as both the Applicant and Intact failed to establish that the other party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding, noting that Rule 19.1 applied to costs “in a proceeding”. A proceeding was defined pursuant to Rule 2.17 as the “entire process from the start of an appeal to the time a matter is finally resolved”, and the Tribunal found that a proceeding started “once the Applicant submits an application to the Tribunal and ends once all issues in dispute between the parties are resolved.” The Applicant was also not entitled to a (special) award under section 10 of O. Reg. 664 as the Insurer did not unreasonably withhold or delay payments to the Applicant after a review of the timeline and exchange of documents in the case.

16.

Case Name: D.S. and Economical Mutual Insurance Company, 2016 CanLII 93135


Adjudicator: Nicole Treksler Adjudicator Anita John observing

Hearing Type: Teleconference With Interpreter and Stenographer also present

Summary The Applicant sustained a catastrophic impairment as a result of the accident, and the issue in dispute was the entitlement to caregiver benefits. At the time of the accident, the Applicant was staying home while his wife worked. He was in receipt of ODSP benefits and was responsible for caring for his two children, who struggled with serious health, behavioural, and disciplinary issues. He received help from his mother. While the Applicant was cross-examined at the hearing, it was brief as the Applicant stated that due to the accident he had memory problems and could not recall many events. The parties agreed that Adjudicator Treksler should attribute more weight to the Applicant’s wife’s testimony.

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Despite the Applicant’s wife’s testimony at the hearing that the Applicant was responsible for 75% of the child care pre-accident, Adjudicator Treksler found her evidence to be contradictory to the Children’s Aid Society records presented which showed the Applicant’s wife to be the primary caregiver from a qualitative perspective. Adjudicator Treksler found that even if the Applicant had been doing all the tasks as outlined in his affidavit, she opined the wife’s caregiving tasks (discipline, developing routine and structure, medical appointments) from a qualitative perspective required more effort, energy, and were significant in the children’s development. However, Adjudicator Treksler rejected the Insurer’s focus on the Applicant’s alleged substance abuse problem and temperament as irrelevant in the determination. Adjudicator Treksler concluded that the Applicant was therefore not the primary caregiver at the time of the accident and he was not entitled to receive weekly caregiver benefits.

17.

Case Name: R.M. and Optimum Insurance Company, 2016 CanLII 96165


Adjudicator: Catherine Bickley


Summary The Applicant was catastrophically injured in the accident and began receiving income replacement benefits. In March 2014 he advised the Insurer that his rate should have been $619.50 rather than $552.78. This was found to have an effect on his entitlement after CPP and LTD payments. The Insurer’s accountant agreed with the rate, and the Insurer paid $15,003.56 to the Applicant for the difference for the period of April 3, 2008. The issue in dispute was whether interest payments were owed, and whether the Applicant was entitled to a (special) award. Adjudicator Bickley did not accept the Insurer’s argument that no amount was due at the time of the Applicant’s August 2008 income replacement benefit entitlement calculation as the Applicant’s self-employment income was not then verified on a tax return, noting that from a review of the records available, the Insurer’s accountant did have the necessary information available in August 2008 to calculate the Applicant’s initial income replacement benefit entitlement on the basis of the 52 weeks prior to the accident. Adjudicator Bickley further rejected the Insurer’s argument that income earned in 2008 and not reported to the CRA until 2014 fell within section 64.1 of the SABS as unreported income based on her finding that no Income Tax Return was required to be filed at that time as the Applicant’s 2008 tax return was not due until the following April. Adjudicator Bickley concluded that the self-employment income

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could not be considered “income the person has failed to report contrary to the Act or legislation”. Interest was therefore awarded in accordance with s. 46(2) of the SABS. Despite finding that the Applicant’s 2008 self-employment income was not unreported income, Adjudicator Bickley did not find it unreasonable for the Insurer to assure itself that this income had been reported, and once it possessed the 2008 Notice of Assessment moved forward in a reasonable time to recalculate and pay the amounts owing. In addition, the cancellation of a FSCO mediation did not likely result in a significant delay in the determination of the issue and no (special) award was given.

18.

Case Name: J.W. and The Co-operators General Insurance Company, 2016 CanLII 96170


Adjudicator: Vice-Chair J.R. Richards


Summary The Applicant was in receipt of income replacement benefits at a rate of $400 per week, which was stopped March 25, 2016 for his failure to attend an insurer examination. The Applicant claimed the Insurer failed to provide “medical and any other reasons” for the examination as required by the SABS. While Vice-Chair Richards agreed that reasons for the insurer examination to: 1) determine if the Applicant continued to meet the disability test for the income replacement benefit; and, 2) the Insurer’s right to assess his ongoing entitlement to benefits; were not valid medical and other reasons as required by the SABS, the portion of the Notice which stated that the assessment was to determine “the timelines for recovery and future prognosis in relation to your injuries” did constitute medical reasons in this case. Vice-Chair Richards noted that prior to the Notice, the Applicant had most notably a Disability Certificate which indicated his symptoms were resolving minimally, and an OT report which spoke extensively about the Applicant’s condition, including a reference to his planned visit to meet with a surgeon due to extensive damage to his left foot. Vice-Chair Richards considered it significant that the OT indicated he would wait for the results of the medical appoints and possible surgeries to see if the Applicant’s self-care needs would increase, and that a return to ADL’s program may need to be put on hold if further surgery was required. Vice-Chair Richards found no evidence that the Applicant presented information to the Insurer after meeting with the surgeon, or information

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as to how long he would be in recovery if he required surgery, and noted it was clear that the Applicant would cook the opportunity to be assessed by medical professionals of his own choosing, indicating his condition had not stabilized. In this case, Vice Charis Richards found it reasonable for the Insurer to obtain an insurer examination to determine the timelines of the Applicant’s recovery and future prognosis in relation to his injuries which were valid “medical and other reasons”. As the Notice was valid, Vice-Chair Richards held the Applicant did not comply with section 44 of the SABS, and was precluded from receiving income replacement benefits for the period of March 25, 2016 to July 7, 2016 for failing to attend the insurer’s examination.

19.

Case Name: J.W. and Echelon General Insurance Company, 2016 CanLII 82874



Hearing Type: Hybrid – Teleconference with submissions In Writing

Summary The issue in dispute was entitlement to income replacement benefits. From a physical perspective, Vice-Chair Flude found that the Applicant’s left wrist injury was the cause of his inability to return to work, but on a review of the evidence, his left wrist pain had resolved. To the extent that the Applicant still reported pain in the left wrist, Vice-Chair Flude found that he did not leave any of his various post-accident jobs because of difficulties with his wrist, and what pain he did have arising out of the accident was manageable in the workplace. From a psychological perspective, the Applicant had a history of depression and Vice-Chair Flude preferred the diagnoses of the psychologists who had a long-term relationship with the Applicant, which Vice-Chair Flude opined provided greater insight into the Applicant’s condition than the most thorough single examination. Relying on these opinions, Vice-Chair Flude found that the Applicant suffered from chronic post-traumatic stress disorder and severe adjustment reaction with depressed mood, and that the severity of his current condition was materially related to the accident, and was not capable of working. Although the parties did not submit any evidence relating to employment for which the Applicant might be reasonably suited by education, training, or experience, Vice-Chair Flude accepted evidence of the Applicant’s unsuccessful attempts to return to the beauty industry or find a position in general retail as demonstrating that she was completely unable to engage in any employment pursuant to s. 6(2)(b) of the SABS.

20.

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Case Name: M.M. and Northbridge Personal Insurance Corporation, 2016 CanLII 93131


Adjudicator: Lan An


Summary The issue was whether the Applicant was in compliance with the Tribunal’s Case Conference Order and disclosure Rules 9 and 10 of the LAT Rules of Practice and Procedure. The Insurer raised a preliminary issue in its hearing submissions that four sets of documents should be excluded from the hearing as the Tribunal made an order at the Case Conference that the parties were not permitted to submit new documentation following the Case Conference. Adjudicator An reviewed the Tribunal’s Case Conference Order and found no mention of the limits of the documents to be used at the hearing to documents disclosed at or before the Case Conference. Adjudicator An found that the Applicant was also compliant with Rule 9, but not Rule 10 of the LAT Rules of Practice and Procedure which required that experts’ reports be served by the party bringing the application at least 30 days before the hearing. Despite this, Adjudicator An found that Rule 3.1 allowed the Rules to be liberally interpreted and applied, and to be varied by the Tribunal to “facilitate a fair, open and accessible process” to allow effective participation by all the parties. In this case, Adjudicator An found the expert report was relevant, necessary, and would assist the Tribunal and parties to come to a resolution, and therefore was admissible. Adjudicator An cured any prejudice to the Insurer by allowing a further 30 days to review the report and make submissions and submit material as necessary.

21.

Case Name: D. J. and Aviva Insurance Canada, 2016 CanLII 93136


Adjudicator: Jeanie Theoharis


Summary The issue in dispute was whether the Applicant’s injuries fell outside the MIG, along with reasonableness and necessity of several treatment plans. Adjudicator Theoharis accepted that the Applicant had psychological impairments as a result of the accident relying on the Applicant’s social worker’s report and evidence, which noted complaints of “apparent psychological symptoms and issues, specifically symptoms of depressions, cognitive issues and anxiety symptoms”. She found these psychological problems were reflected in the family doctor’s clinical notes and records, and in the Insurer’s psychologist’s objective findings, and

17


therefore inconsistent the Insurer’s psychologist’s conclusions of no psychological impairment as a result of the accident. Adjudicator Theoharis therefore found that the Applicant’s injuries were outside of the MIG. Adjudicator Theoharis also found that none of the five treatment plans in dispute were reasonable and necessary as they were requests for facility based treatment for musculoskeletal injuries, and accepted the Insurer’s assessors’ conclusions that the plans were not reasonable and necessary as the Applicant had reached maximal recovery for her sprain/strain-type injuries. Adjudicator Theoharis further rejected the Applicant’s submission with respect to her physical assessments that the Insurer’s male assessors’ opinions should be disregarded on the basis of her cultural tendency as a woman to mistrust and not openly convey and identify health issues to male practitioners whom she was meeting for 1-2 hours, noting that this issue had not been raised before by the Applicant or her lawyer at the time of the assessments, and female-only assessors had not been requested. Of the cost of examinations in dispute, Adjudicator Theoharis found only the social work assessment and disability assessment were reasonable and necessary as the Applicant had sustained psychological impairments and the treatment of those impairments continued and had not yet been rectified by the treatment undertaken. The orthopaedic assessment was not reasonable and necessary as the Applicant’s injuries had been successfully treated pursuant to the MIG.

22.

Case Name: L.W. and The Co-operators General Insurance Company, 2016 CanLII 93133

Date of Decision: December 1, 2016



Summary The issue in dispute was whether six treatment plans were reasonable and necessary after the Applicant was involved in a rear-end collision with a bus on November 29, 2013, and a further rear-end collision on June 19, 2015. Adjudicator Sewrattan did not accept the Insurer’s position that the Applicant’s injury was minor and lacked objective evidence. Adjudicator Sewrattan accepted the progress note of the Applicant’s chiropractor who found that the Applicant had radicular nerve pain around the thoracic spine and was experiencing a regression in her rehabilitation with decreased chiropractic care, acupuncture, and massage therapy.

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Based on the Applicant’s chiropractor’s clinical notes, progress note, and two MRIs, Adjudicator Sewrattan found the Applicant suffered a chronic impairment to her thoracic spine. Adjudicator Sewrattan found that the Applicant’s chiropractor’s diagnosis of radicular nerve pain was uncontested on the evidence. The treatment plans were therefore found to be reasonable and necessary for relieving the Applicant’s pain, and therefore improving her function. Adjudicator Sewrattan also noted that surveillance and Facebook images had been entered into evidence, which when taken at the highest weight it could carry showed that the Applicant was able to perform movements that may not align with the pain she described to her chiropractor. However, Adjudicator Sewrattan accepted the Applicant’s counter-submission that the surveillance and Facebook images could not capture the sensation of pain that the Applicant felt when performing the movements, and found that it did not diminish the credibility of the Applicant or her argument.

23.

Case Name: 16-000179 and Old Republic Insurance Company, 2016 CanLII 93137 Reconsideration Decision


Adjudicator: Linda P. Lamoureux, Executive Chair

Hearing Type: Unknown

Summary The Insurer sought a reconsideration of the Tribunal’s decision in Applicant and Old Republic Insurance Company, October 17, 2016 entitling the Applicant to receive a weekly income replacement benefit in the amount of $292.46 from March 25, 2016 to May 21, 2017. Executive Chair Lamoureux found was that reinstatement of income replacement benefits to the end-date set by the adjudicator was more accurately deemed to be an “ongoing” benefit, and fettered the insurer’s ability to adjust the Applicant’s file, for example if she returned to work before May 21, 2017. Executive Chair Lamoureux therefore granted the Insurer’s request for reconsideration and found that the Tribunal made an error in law in awarding the Applicant income replacement benefits up to a specific date into the future, and varied the Order to have the benefit payable and “ongoing until no longer owing in accordance with the applicable provisions of the Statutory Accident Benefits Schedule”.

24.

Case Name: M.M. and Wawanesa Mutual Insurance Company, 2016 CanLII 93132




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Summary The issue in dispute was whether the Applicant sustained predominantly minor injuries under the SABS, and if not, entitlement to a neuropsychological assessment and chiropractic treatment plan. Adjudicator Truong noted that while the Applicant’s treating psychologist recommended the Applicant undergo a neuropsychological assessment, the assessor did not state that the Applicant’s symptoms prevented her from recovering under the MIG, and did not indicate that her neurosymptommatology fell outside the MIG. Further, the Applicant’s family physician’s records did not indicate the Applicant sustained anything other than minor injuries as a result of the accident. Adjudicator Truong also found that the family doctor’s records submitted did not document a pre-existing condition that prevented the Applicant from achieving maximal recovery under the MIG. Adjudicator Truong concluded that the Applicant sustained predominantly minor injuries as a result of the accident.

25.

Case Name: TD General Insurance Company and A.B., 2016 CanLII 96094


Adjudicator: Avvy Go


Summary The issue was the overpayment of income replacement benefits from February 20, 2014 to May 22, 2014 inclusive on the basis that the insured had returned to work. The Tribunal received submissions from the Insurer only, despite attempts to contact the insured, and proceeded only on the Insurer’s submissions. Adjudicator Go did not accept the witnessed but unsworn statement of a HR manager with no direct knowledge of the insured’s work history as reliable, and therefore did not find that the insured returned to work on February 20, 2014. However, Adjudicator Go did accept an OCF-3 in which the insured reported that he had returned to work, despite the same OCF-3 also noting ongoing issues faced by the insured including a complete inability to carry on a normal life and suffering from a substantial inability to perform housekeeping and home maintenance services for an estimated period of 9 to 12 weeks. Adjudicator Go found the OCF-3 more reliable as it was prepared by a health professional as part of the ongoing assessment of the insured’s eligibility for benefits. Adjudicator Go also found that despite sending the first notices of the overpayment to the insured at a wrong mailing address, this address was the same one used on the OCF-3 and it was up to the insured to inform their Insurer of an address change. In addition, the insured’s lawyer was

20


copied on all the notices, and did not notify the Insurer of the address change until more than 12 months had passed from the first notice, but did not explain why they had not advised sooner about the error with the insured’s address, after which point the Insurer began writing to the insured at the new address. Based on the evidence, Adjudicator Go accepted that the Insurer provided the requisite notice under section 52 of the SABS. As a result, Adjudicator Go found that the insured returned to work on May 1, 2014, and should repay the income replacement benefit he received between May 1, 2014 to May 22, 2014 inclusive, with interest.

26.

Case Name: N.C. and RBC General Insurance Company, 2016 CanLII 93134




Summary The issues in dispute were the entitlement to income replacement benefits, whether he was entitled to claim a weekly business loss amount, as well as whether the Applicant’s injuries fell under the MIG, and entitlement to two treatment plans. The accident occurred on August 10, 2015, and the Applicant underwent an MRI on November 19, 2015 which revealed a small amount of fluid in the distal radialulnar joint suggesting carpal tunnel syndrome. The Applicant attended a further assessment with a neurologist since the commencement of the LAT Application which found “possible crush syndrome” with ulnar neuropathy below the elbow, and since the release of the neurologist report the Insurer had approved an assessment beyond the MIG. Adjudicator Sewrattan noted that the Insurer’s submissions were grammatically confusing regarding its MIG position, but concluded that based on the medical evidence the Applicant was entitled to treatment beyond the MIG. Adjudicator Sewrattan rejected the Insurer’s position that entitlement to the Treatment Plans should be based on the information available to the insurer at the time the plans were submitted, and found that on a balance of probabilities based on the evidence presented that the treatment plans were reasonable and necessary. The parties agreed that the Applicant was entitled to an income replacement benefit from January 2016 and ongoing but disagreed on the amount. Multiple accounting reports were submitted by both parties and Adjudicator Sewrattan accepted one of the Applicant’s accountant’s

21


reports which were based on the Applicant’s invoices and accounting books which was found to be more convincing than the others. Adjudicator Sewrattan rejected the Applicant’s claim for business loss from January 2016 and ongoing and agreed with the Insurer’s position that one may post a business loss only while they are operating a business pursuant to section 4(4) of the SABS and section 9(2) of the Income Tax Act.

27.

Case Name: N.E. and Waterloo Regional Municipalities Insurance Pool, 2016 CanLII 96169


Adjudicator: Ruth Gottfried


Summary The issues in dispute was whether the Applicant’s injuries fell within the MIG, entitlement to several treatment plans, and variation of the income replacement benefit amount. The Applicant was riding his bicycle on September 17, 2015 when he collided with a transit bus turning directly in front of him. He was taken by paramedics to the hospital, but no hospital records were submitted into evidence. On October 6, 2915 he attended an urgent care facility with complaints of back pain. An MRI of the thoracic spine was obtained on March 9, 2016. No doctor commented on the MRI, but the Applicant’s legal representative gave an opinion as to the findings. However, Adjudicator Gottfried gave no weight to the legal representative’s opinion, noting instead that medical expert opinion or evidence would have been of assistance. Adjudicator Gottfried noted that of the evidence submitted, clinical notes and records of the Applicant’s chiropractor were “brief, sometimes cryptic, and often illegible” and described acute sprain and strain injuries to the thoracic and lumbar spine, with resolved arm injuries. Adjudicator Gottfried further found no medical evidence was provided to support the Applicant’s position that his injuries had gone from acute to sub-acute and that he now suffered from chronic pain. Adjudicator Gottfried further rejected the Applicant’s position that the OCF document system was the only way for claimants to effectively communicate with the insurer, and that even with a lack of funding to obtain assessments to speak to the Insurer’s assessors, Adjudicator Gottfried found other evidence could be submitted to support a variety of claims, not limited to “clinical notes and records from treating physicians, consultation reports from medical referrals, employers’ records, government documentation,

22


correspondence, photographs as well as copies of emails, texts and social media accounts”. Adjudicator Gottfried also rejected the Applicant’s assertion that his injuries fell out of the MIG as he was in receipt of an income replacement benefit and a relationship existed between the MIG and entitlement, and instead agreed with the Insurer that the legislation did not support this conclusion, namely that an insured’s ability to engage in the essential tasks of his or her pre-accident employment must be substantiated on a separate and different basis of whether or not the insured has sustained a minor injury. Adjudicator Gottfried found no evidence to vary the income replacement benefit or evidence submitted by the Applicant to refute the Insurer’s assessor’s opinion that he was able to engage in the essential tasks of his pre-accident employment, and further that his injuries fell within the MIG.

28.

Case Name: J.C. and Certas Direct Insurance Company, 2016 CanLII 96161




Summary The issues in dispute were the entitlement to two treatment plans, one for psychological services, and one for assistive devices. The Insurer had initially approved a psychological assessment, and as a result of which the Applicant’s assessor submitted a treatment plan for psychological services approximately five months after the initial approval, which treatment plan was in dispute. The treatment plan for psychological services was denied and an IE was conducted, which concluded that the plan was not reasonable and necessary on the basis that with the passage of time, the Applicant was coping satisfactorily with his accident-related stressors and his adjustment disorder was in partial remission. Too, the IE assessor commented that the Applicant did not convey a high level of motivation for participation in mental health counseling. Adjudicator Sewrattan found the treatment plan for psychological services was not reasonable and necessary as the Applicant failed to demonstrate that the specific proposed services were necessary for his specific impairment. Further, Adjudicator Sewrattan agreed with the Insurer that the original psychological report approving the psychological assessment deserved less weight as it was an earlier report conducted five months before the disputed treatment plan was conducted and an insured’s impairment could change over time and was not static.

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With respect to the treatment plan for assistive devices, the plan was partially approved by the Insurer and Adjudicator Sewrattan found that the Applicant had failed to discharge his onus on proving on a balance of probabilities that the assistive devices are reasonable and necessary, and to show that the devices had not been provided after partial approval and payment by the Insurer. The plan was denied.

29.

Case Name: J.B. and Meloche Monnex Financial Services Inc., 2016 CanLII 96162


Adjudicator: Nicole Treksler


Summary The issues in dispute were whether the Applicant was entitled to a TMJ assessment. As a preliminary issue, the Applicant served her materials at 6:29 p.m. on September 22, 2016, which was considered the next business day according to Rule 6.5 of the LAT Rules of Practice and Procedure, and Adjudicator Treksler acknowledged that the Applicant served her submissions late. However, pursuant to LAT Rule 3.1, Adjudicator Treksler allowed the Applicant’s submissions to be considered as they caused little prejudice and noted that if the Insurer believed the late submissions prejudiced them, they could have requested additional time to prepare their submissions, which was not requested. Adjudicator Treksler found that the Applicant was entitled to the cost of a TMJ assessment, rejecting the Insurer’s arguments that the Applicant did not establish that the TMJ injuries were the result of the accident on April 28, 2015 due to lack of and late communication of her TMJ issues. However, despite the first OCF-3 note mentioning any TMJ injuries, the Adjudicator noted that the Applicant mentioned TMJ pain to her family doctor approximately two weeks post-accident on May 11, 2015 and again November 5, 2015, and was also noted in the clinic’s clinical notes and records twice in November 2015. Adjudicator Treksler found that based on the evidence there were numerous TMJ complaints and did not find it necessary for it to have been listed on an OCF-3 for the Insurer to consider possible treatment, and that the evidence should have formed a sufficient basis for the Insurer to investigate whether the Applicant suffered from TMJ symptoms by approving funding for a TMJ assessment.

30.

Case Name: N.P.M.T. and State Farm Insurance Company, 2016 CanLII 96160



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Summary The parties resolved 14 of the 15 issues in dispute prior to the Case Conference, and the remaining issue in dispute was attendant care benefits. At the Case Conference, the Applicant sought to withdraw the application without prejudice and without costs, but the Insurer did not consent and sought costs on the basis that the application was frivolous and the Applicant had acted unreasonably. Adjudicator Treksler declined to award costs, noting that “a withdrawal of the application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a costs order. Access to justice is central to the mandate of the Licence Appeal Tribunal. As such, a costs award will not be granted merely because a withdrawal has caused another party inconvenience.” Adjudicator Treksler found that the Insurer had not provided any persuasive evidence that the Applicant’s withdrawal demonstrated that the Applicant acted unreasonably and frivolously during the proceeding and declined to award costs.

31.

Case Name: V. L. and TD Meloche Monnex, 2016 CanLII 96171



Hearing Type: Teleconference Court reporter present

Summary The issue in dispute was whether the Applicant was entitled to caregiver benefits, and entitlement for a rehabilitation benefit for an electric assist motor bicycle. The Applicant provided care for his parents at the time of the accident and in the five years preceding, and had always sought to live close to them. At the time of the accident, he was living in a home 900 metres walking from his parents, but a 3km drive. He purchased caregiver benefits as an optional benefit to specifically ensure he was covered in the event he could not care for his parents. Adjudicator Treksler noted the term “reside with” was not defined in the SABS, and found whether the Applicant was residing with his parents at the time of the accident to be a question of fact, determined by factors such as time, object, frequency, intention, and continuity. Adjudicator Treksler concluded that based on the family arrangements and dynamics, they were residing in two homes and the Applicant was “residing with” his parents at the time of the accident.

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In support of his claim for caregiving expenses, the Applicant provided a notarized confirmation of caregiving services signed by the provider, and advised that the provider had worked for 8 years previously as a nanny for his children. The provider herself testified that she ordinarily worked cleaning offices, and had worked a variety of jobs. Adjudicator Treksler concluded that the Applicant trusted the provider with the care of his parents as he had trusted her with the care of his children, and accepted the notarized confirmation, rejecting the Insurer’s claim that the documentation was not adequate as it did not leave a paper trail to follow and investigate, noting nothing in the SABS set out the form in which incurred expenses must be provided to the Insurer. With respect to the bike, the Applicant submitted he could not commute to work on his bike as his neck, lower back, and arm pain had intensified, and Adjudicator Treksler accepted the Applicant’s explanation that he could not pedal without impacting the pain level of other areas. Adjudicator Treksler found the rehabilitation benefit was reasonable and necessary for the Applicant to return to his pre-accident status, and that the bike would assist him to get some exercise while minimizing the impact on his neck, back and arms.

32.

Case Name: Aviva Canada and S.A., 2016 CanLII 96164


Adjudicator: J.H. Bass


Summary The issue in dispute was entitlement to income replacement benefits for the period about November 6, 2013 to June 2, 2014, and if not, whether the insured was liable to repay $11,942.86 to the Insurer. The OCF-1 dated November 25, 2013 was noted to be confusing: the insured checked the box indicated he had worked for 26 of the 52 weeks prior, but did not list 26 weeks of work, and did not check the box indicating he was in receipt of Employment Insurance. The Insurer paid income replacement benefits on the basis of the insured’s signed statement of December 5, 2013 which indicated he was on EI at the time of the accident. On June 5, 2014 the insured advised he had returned to work on June 2, but paystubs showed a return to work five weeks prior. The Insurer subsequently reviewed the entire file and demanded repayment. At the hearing, the insured conceded that he was neither employed nor on EI benefits at the time of the accident, and only applied for EI benefits after the accident which application was rejected. Based on the evidence

26


of his work history provided, Adjudicator Bass found that the insured was not employed for 26 of the 52 weeks prior to the accident. Although not binding on the Tribunal, Adjudicator Bass found the test for determining misrepresentation and fraud in Michalowski and St. Paul Fire and Marine Insurance Company (FSCO A98-001492) to be persuasive. Taking all the information presented, Adjudicator Bass did not find that the insured’s version of the facts was credible, and found that they showed a persistent attempt to receive benefits to which he was not entitled, and amounted to wilful misrepresentations. Adjudicator Bass therefore ordered repayment to the Insurer.

33.

Case Name: 16-000272 and Aviva Insurance Canada, 2016 CanLII 96093 Reconsideration Decision


Adjudicator: Executive Chair Linda P. Lamoureux


Summary Note: While the decision is a reconsideration of the final decision of 16-000272 v. Aviva Insurance Canada on October 19, 2016, we are unable to locate this decision on CanLII. The issue in dispute was a reconsideration of the Tribunal’s finding that the insured suffered predominantly minor injuries in the accident as it was not an issue in dispute before the Tribunal. Executive Chair Lamoureux noted that in its October 19, 2016 decision, the Tribunal listed as one of the issues in dispute whether the insured suffered predominantly minor injuries in the accident, and based on the evidence found that the insured’s injuries did not fall under the MIG. On a review, Executive Chair Lamoureux found that this said issue was not listed by the applicant on her application or in the insurer’s response, and not listed in the Case Conference Report or Order, and therefore it was not necessary for the Tribunal to decide the issue and acted outside of its jurisdiction in deciding an issue that was not an issue in dispute before it. Executive Chair Lamoureux therefore granted the Insurer’s request for reconsideration, and the paragraph in the Tribunal’s decision dealing with the MIG was cancelled.

34.

Case Name: 16-000338 and The Personal Insurance Company, 2016 CanLII 96168 Reconsideration Decision


Adjudicator: Executive Chair Linda P. Lamoureux


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Summary The issue in dispute was a reconsideration of the Tribunal’s Order of October 20, 2016 following a Motion in S.G. and The Personal Insurance Company which order excluded an audio recording from being admitted as evidence at the LAT Hearing. On a review, Executive Chair Lamoureux upheld the order and found that the Tribunal provided reasons for why the Applicant failed to demonstrate that the audio recording was relevant, and was not satisfied that the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness in its finding that the issue of credibility could be dealt with through the evidence of the parties at the hearing. Executive Chair Lamoureux was also not satisfied that the Tribunal made a significant error of law or fact, and denied the Applicant’s request for reconsideration.

35.

Case Name: A. B. and Aviva Insurance Company of Canada, 2016 CanLII 96166


Adjudicator: Vice-Chair J.R. Richards Observed by Adjudicator Jeanie Theoharis

Hearing Type: In Person? (Unclear, notes heard: “Hamilton”)

Summary The issues in dispute were entitlement to non-earner benefits, and the balance of a Treatment Plan for the cost of transportation costs for a chronic pain assessment. As a preliminary issue was the allowance of several of the witnesses and surveillance disclosure. Vice-Chair Richards denied the Applicant’s request for an adjournment on the basis that several of his doctors would not be available to testify in person, on the basis and agreement from counsel that the reports spoke for themselves and agreed to rely on the reports without their oral testimony. Vice-Chair Richards found that the Insurer did not comply with the LAT Rules 10.2 and 10.3 providing the identification and disclosure of its experts, and similar to the finding with the Applicant’s witnesses found the evidence could be introduced through their reports only. Vice-Chair Richards also found that the Insurer did not follow the LAT Rules in disclosing information about its surveillance expert as required by Rule 10, nor intent to rely on the surveillance as required by Rule 20. Nonetheless, it did serve the evidence prior to the hearing and the Applicant was given a chance to respond and the Applicant had not challenged the authenticity of the record, and therefore the evidence was admitted. With respect to the non-earner benefit, Vice-Chair Richards considered the factors in Heath v. Economical Mutual Insurance Company (2009

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ONCA 391). On a review of the evidence, Vice-Chair Richards found that the Applicant’s story was not consistent with the totality of the evidence, and especially the surveillance video which showed the Applicant was able to work and engage in fairly strenuous activity. Vice-Chair Richards found the Applicant was not entitled to a non-earner benefit, and that on a balance, the surveillance evidence showed he was able to drive, and therefore the taxi expenses were not payable.

36.

Case Name: P.L.F.R. and Intact Insurance Company, 2017 CanLII 9823, Vice Chair D. Gregory Flude, January 5, 2017 (ON LAT) (actually received by Dutton Brock LLP dated/on February 2, 2017)

Date of Decision: January 5, 2017 / February 2, 2017

Adjudicator: Vice Chair D. Gregory Flude

Hearing Type: In Person

Summary The issue in dispute was the determination of catastrophic impairment pursuant to s. 3(2)(d)(i) [sometimes misstated in the decision as “3.1(d)(i)”], that the Applicant had suffered a catastrophic impairment as a result of the accident, as she suffered brain impairment that resulted in a score of 9 or less on the Glasgow Coma Scale (GCS). The parties agreed that s. 3(2)(d)(i) set out a four point test:

1. Did the applicant suffer brain impairment as a result of the accident;

2. Did the brain impairment result in a GCS score of 9 or less; 3. Was the GCS test administered within a reasonable time following

the accident; and 4. Was the GCS test administered by a person qualified to do so?

The parties greed there was no dispute with the last two branches of the test. The Applicant was in an accident on October 2, 2015, as a result of which she sustained multiple fractures of the pelvis, and evisceration of the right side of her abdomen. At the hospital, she had dropping blood pressure, and a GCS fluctuating between 13 and 10. Her airway was clear but she was intubated and given medication to assist the process including Succinylcholine, Fentanyl, and Propofol. Following intubation, her GCS scores were denoted with a T ranging from 7T to 2T during the air ambulance trip and in the ER at the Toronto trauma centre. In his analysis, Vice-Chair Flude noted that “it is clear from the evidence that the applicant suffered brain impairment as a result of the accident. She had a reduced GCS score of 12 in the ambulance on her way to the

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emergency room which is indicative of brain impairment. She had a large laceration of her scalp that exposed the skull, and subsequent investigation showed a subarachnoid haemorrhage…” Vice-Chair Flude rejected the Insurer’s argument that a subarachnoid haemorrhage was not a brain injury, finding that “a brain injury is not a prerequisite to recovery. It is the brain impairment reflected by the lower GCS score that is of importance in this discussion”. Vice-Chair Flude had difficulty with the Insurer’s neurologist’s report, noting the assessor appeared to combine two concepts by stating that the GCS did fall to 7T, but it was in relation to sedation and that there was no evidence of any neurological deficit. However, the Insurer’s assessor did not comment on the subsequent drop to 5T then 2T. Vice-Chair Flude further noted that the assessor’s comments regarding the CT scan of “a small subarachnoid hemorrhage but she recovered and apparently there was no neurological abnormality” appeared to suggest that the assessor believed a person did not meet the definition of “catastrophic impairment” unless there was evidence of a continuing neurological deficit, which was contrary to the requirements of the SABS in s. 3(2)(d)(i). Vice-Chair Flude believed the assessor was confusing the GCS requirements with the neurological deficit testing protocol at s. 3(2)(d)(ii) and the Glasgow Outcome Scale. In contrast, Vice-Chair Flude accepted the Applicant’s GP assessor’s evidence and corrections that a GCS score while intubated should not have a score of 1 assigned for a voice response, and that a GCS score form an intubated patient was nonetheless reliable. Vice-Chair Flude therefore found that the Applicant had a valid GCS score below 9, ranging from 7T to 2T. Vice-Chair Flude noted on the issue of causation that the Insurer’s assessor believed the score of 6T (quoted as 7T) was the result of intubation and sedation, but did not comment on the lower scores in the Toronto trauma centre or tie it to any specific increase in sedation. In contrast, the Applicant’s assessor noted hypovolaemia and blood loss, with a drop in blood pressure, which the Applicant’s assessor opined would result in decreased brain function and lower GCS score. Vice-Chair Flude noted that hospital records showed the Applicant was given massive blood transfusions which had no effect on her GCS score, which continued to drop, and despite the inability to measure a voice component due to intubation, even permitting a maximum score of 5 on the voice scale, the Applicant’s GCS would have been no more than 7. While Vice-Chair Flude noted “sedation undoubtedly had an effect on the applicant”, given the evidence, he found that the Applicant’s brain

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impairment and lowered GCS scores were caused by her brain injury and hypovolaemia directly resulting from the accident, and found that she had sustained a catastrophic impairment.

37.

Case Name: M. J. and Pembridge Insurance Company, 2017 CanLII 1556

Date of Decision: January 9, 2017

Adjudicator: Vice Chair D. Gregory Flude and Adjudicator Eleanor White

Hearing Type: In Person Applicant Self-Represented

Summary The issues in dispute were the entitlement to an income replacement benefit, and repayment costs for purchasing medical marijuana. Two preliminary issues were addressed on the basis that the Applicant had applied for both an income replacement benefit and a non-earner benefit in his application, and secondly that there was late disclosure by the Applicant of documents he wished to rely on at the hearing. The Applicant withdrew his claim for non-earner benefit. The Insurer objected to a late-filed neurologist report which was not disclosed within the time limits issued in the Case Conference Order. The Applicant withdrew the medical report. The Tribunal declined to award income replacement benefits on the basis that the Applicant had not provided information relating to his post-accident income or to substantiate his claims that he was on social assistance, and no information had been provided upon which to calculate the income replacement benefit. Similarly, the Tribunal found that despite repeated requests the Applicant had not produced his medical document showing that he is entitled to possess and use marijuana for medical purposes, notwithstanding that the Insurer’s assessor found that marijuana may be useful in controlling the Applicant’s pain.

38.

Case Name: Applicant and Co-operators Insurance Company, 2017 CanLII 1554




Summary The issues in dispute were entitlement to non-earner benefits, three Treatment Plans for rehabilitation benefits, and whether the Applicant’s injuries were “minor” as defined in the SABS. The Insurer raised the issue of causation as the Applicant had been involved in a separate motor vehicle accident almost two years prior to the accident in question, and claimed benefits from a different insurer for

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similar physical and psychological impairments to those he asserted arose from the 2015 accident. Adjudicator Sewrattan compared the injuries and complaints reported to various assessors and the Applicant’s family doctor after both accidents, and noted the similarities in the reported symptoms. Adjudicator Sewrattan also found that the Applicant’s credibility was suspect given his failure to report his prior accident to some of the Insurer’s assessors, and his contradictory statements about his employment situation; however, Adjudicator Sewrattan found that the contradictions were not enough to support a finding that the Applicant intentionally misled the parties, but did not assign much weight to his self-reports. On this basis, Adjudicator Sewrattan found that the Applicant had not met his onus to prove on a balance of probabilities that the accident was the direct cause of one or more of the psychological and physical impairments that were put forth as proof that he should be treated outside of the MIG. Adjudicator Sewrattan also accepted the Insurer’s assessor’s opinions of no objective evidence of ongoing impairment or complete inability to carry on a normal life. With respect to the claim for non-earner benefits, Adjudicator Sewrattan found the claim failed as little weight was placed on the Applicant’s self-reported impairments in his affidavit due to the credibility concerns, and Adjudicator Sewrattan found the affidavit lacked details of the Applicant’s pre-accident lifestyle, and therefore would require much speculation to determine the keye activites in which the Applicant ordinarily engaged before the 2015 accident. In addition, much of the medical evidence the Applicant submitted was based on self-reports which in this case was not persuasive given the Adjudicator’s concerns with the Applicant’s credibility. Adjudicator Sewrattan noted that he would have liked to see more objective indicia of assessment, such as a description of the methods by which the Applicant was tested, test results, and explanation of how the test results contributed to the assessor’s conclusion which would assist in assessing the soundness and reasonableness of the reports. Adjudicator Sewrattan also disagreed with the Applicant’s position that the Insurer failed to provide medical and other reasons in its letters pursuant to section 38(8) of the SABS, and that it “believes” the MIG applied as required by section 38(9) of the SABS, noting that for each treatment plan in dispute it was clear the Insurer provided reasons explaining that the proposed treatment was denied because of the limits of the MIG and because the treatment was not reasonable and necessary in its view, and referred to the reports of the independent medical examiners it had hired to evaluate the Applicant’s claims.

39.

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Case Name: E.S. and Unifund Assurance Company, 2017 CanLII 5853

Date of Decision: January 13, 2017 (incorrectly reported as January 13, 2016 on CanLII website and decision)



Summary: The Claimant suffered a right foot fracture as a result of the accident. He attended physiotherapy as long as treatments were funded by the Insurer. In dispute was the entitlement to two treatment plans, one for physiotherapy and chiropractic treatment, the other for a chronic pain program. In his analysis, Adjudicator Bass preferred the more recent report of the Insurer’s IE assessor to that of the Claimant’s two reports, noting that despite previous pain complaints, the Claimant’s various pain complaints had resolved by the time of the Insurer’s examination. Adjudicator Bass found that the Claimant was engaged in a home exercise plan under the advice and supervision of his family doctor and taking only over the counter mediation. Adjudicator Bass found the Applicant’s psychologist’s records demonstrated progress in the Claimant’s recovery, which corroborated the Insurer’s assessor’s opinion. Both Treatment Plans were found not reasonable or medically necessary.

40.

Case Name: R.H. and TD Insurance Meloche Monnex, 2017 CanLII 1555


Adjudicator: Claudette Leslie


Summary The issue in dispute was whether the Applicant submitted a valid, signed Treatment Plan, and whether the Applicant’s impairments were minor and fell within the MIG. Adjudicator Leslie noted that the hearing evidence showed three substantively different versions of the Treatment Plan in dispute: one submitted by the Applicant for the Case Conference which is missing both the health provider’s and Applicant’s signatures with typed notes totalling $3,589.40; one submitted by the Applicant for the Hearing which had handwritten notes, and signed on page 2 by the health provider and on page 4 by the Applicant totalling $369.47; and, one submitted by the Insurer for the Hearing which had only two health care providers’ names, but no signatures of the providers or the Applicant totalling $3,589.40. In her analysis, Adjudicator Leslie noted that the Insurer initially sent a letter to the Applicant by regular mail after receiving the Treatment Plan

33


in dispute denying the plan and requesting the Applicant attend insurer examinations, but exceeding the 10-business day requirement in section 38 of the SABS. The allegations that the Treatment Plan was not signed were not raised until approximately 10 months had passed as a concern until the Case Conference. Adjudicator Leslie found that the Insurer’s response letter to the Treatment Plan and silence on the signature issue constituted the Insurer’s waiver of the section 38 requirements and was liable for payment of the costs of treatment incurred for the period covering November 18, 2015 up to and including December 1, 2015 when the Insurer was deemed to have given the mailed letter of denial. Adjudicator Leslie noted that the Insurer was also required to give medical and other reasons for not paying, and if the Insurer believed the MIG applied it must say so. In this case, the denial letter read “We regret to inform you that we are unable to approve the proposed goods, services and/or assessments on the basis that we have previously determined that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline.” The letter went on to describe the Applicant’s injuries in the Treatment Plan as being of a minor nature. Adjudicator Leslie was not convinced the explanation constituted medical reasons, but found that at the very least, in keeping with section 38(9) of the SABS the Insurer was prohibited from taking the position that the impairment for which the Applicant sought treatment fell within the MIG on the grounds that it breached the provisions of section 38(8) for failing to respond to the Treatment Plan in the required timeframe. Adjudicator Leslie therefore ordered that the Insurer pay the Applicant a medical benefit in the amount of $369.47 less amounts paid plus interest, which corresponded to the Treatment Plan with signatures.

41.

Case Name: M.B. and The Dominion of Canada General Insurance, 2017 CanLII 3135


Adjudicator: Catherine Bickley

Hearing Type: Teleconference, Motion to Dismiss without Hearing

Summary The Tribunal dismissed the Applicant’s Application as abandoned as Applicant had not participated in the Case Conference, his former legal representative had not been able to communicate with and get instructions from him, and that he had not attended the Motion Hearing . Adjudicator Bickley was satisfied that the Tribunal, by sending the Notice to the address listed on the Application and phoning the phone number listed on the Application, made all reasonable efforts to advise the Applicant of this Motion Hearing, and the Applicant had either received notice and chosen not to participate, or moved and not informed his

34


former legal representative or the Tribunal of his new address and phone number.

42.

Case Name: C.S.Z. and Allstate Insurance Company of Canada, 2017 CanLII 3144



Hearing Type: In Person Mandarin Interpreter and Court Reporter present

Summary The issue in dispute was entitlement to income replacement benefits. At the Hearing, the preliminary issues raised dealt with the admissibility of surveillance and an expert report of the Applicant’s psychologist. The Applicant objected to surveillance evidence being admitted on the basis that the expert form was not submitted and the investigator was not present at the Hearing to testify. Adjudicator Marzinotto noted that the investigator had not been summonsed, and agreed with the Insurer that cross examination was not required as the video and report simply recorded and provided observations. Subsequently the Applicant withdrew his objection and agreed that he did return to work for the period seen on the video. Adjudicator Marzinotto also allowed the Applicant’s psychologist’s report and agreed with the Applicant that the Insurer had the report for some time before the Hearing, despite the fact that the expert’s duty form was not served as required by Rule 10.2 of the LAT Rules. Further, Adjudicator Marzinotto noted the Insurer had ample time to object to the report by the 10 days before the Hearing as set out in Rule 10.4, but failed to do so, nor did they submit any evidence of prejudice by admitting the report or the lack of the expert duty form. With respect to the income replacement benefit, Adjudicator Marzinotto set out the Insurer’s history of repeated requests for income and other information related to the Applicant’s income replacement benefit claim, as well as the Applicant’s failure to comply with the Tribunal’s Case Conference Order to provide further income and work information. In her assessment, Adjudicator Marzinotto gave little weight to the Applicant’s psychometrist’s report as it did not address entitlement to income replacement benefits, and was conducted without the use of an interpreter, which was contradictory to the LAT Hearing wherein the Applicant required the use of an interpreter and stated that he could not communicate in English at all. Adjudicator Marzinotto concluded that the Applicant failed to prove continued entitlement to income replacement benefits after his first return to work as no reliable medical evidence had been produced to support his claim. Further, even if the Applicant could establish entitlement, Adjudicator Marzinotto noted that he still failed to

35


provide reliable evidence of his employment income and post-accident employment period, despite the s. 33 requests and the Tribunal order. As an exception, Adjudicator Marzinotto allowed the Applicant to submit case law after the Hearing dealing with perfection of evidence in cases of interpreters, and allowed the Insurer a chance to respond. On a review of the cases submitted, Adjudicator Marzinotto found no argument or evidence presented which would question the validity of the hearing.

43.

Case Name: M.N.K.A. and State Farm Mutual Automobile Insurance, 2017 CanLII 9822




Summary The issues in dispute were entitlement to non-earner benefits, and two Treatment Plans for medical benefits. The Applicant had previous health problems starting in 2006 and was in receipt of benefits under ODSP. He was also on methadone treatment for a prior opioid addiction. Adjudicator Bass noted that the fact that the Applicant had extensive pre-existing medical problems did not itself disentitle him to non-earner benefits, but that on a review of all the medical reports did not find convincing evidence that the Applicant suffered an “inability to carry on a normal life” caused by the motor vehicle accident, noting that extensive evidence of his severe back problems going back many years caused him to be frequently bedridden with back pain, and difficulty walking, climbing stairs, lifting and bending. Further, Adjudicator Bass found compelling the clinic notes where the Applicant attended almost weekly from August 2011 to June 2016 in connection with the methadone treatment, which indicated he was employed post-accident, and was not convinced by the Applicant’s assertion that the notes were taken in error. With respect to the Treatment Plans in dispute for chiropractic services and a chronic pain assessment, Adjudicator Bass found that there was a lack of medical evidence to show that the proposed treatment would have any impact on the soft tissue injuries that might have occurred as a result of the accident, or that the chronic pain was due to the accident and found both plans were not reasonable or necessary.

44.

Case Name: S.G. and Unifund Assurance Company, 2017 CanLII 9811


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Summary The issues in dispute were entitlement to non-earner benefits and the remainder of a partially approved rehabilitation Treatment Plan. As a preliminary issue, Adjudicator Truong addressed the issue that the Applicant’s Reply materials were three days late without explanation and included two new documents which were not previously disclosed to the Insurer. The Insurer requested that the report and records be excluded as they were in breach of the Case Conference Order and the LAT Rules, and would prejudice the Insurer with no chance to respond. The Applicant submitted the Case Conference Adjudicator advised materials may still be accepted if submitted within “a few days” after the due date and the case management officer confirmed Reply materials would still be accepted as long as they were not submitted immediately before the written hearing. The Applicant submitted the Rules required disclosure at least 10 days prior to the date of the hearing, and the reports were received on November 1, 2016 and served upon receipt, in advance of the November 16, 2017 hearing date. Adjudicator Truong noted that Rule 9.3 allowed the Tribunal to order parties disclose evidence “either at least 10 days prior to the hearing or as ordered by the Tribunal” and that Rule 9.4 prevented a party from relying on a document if it failed to comply with any Rule or Order without consent of the Tribunal. In this case, as the report and records were excluded as consent of the Tribunal was not requested and no explanation was provided until after the Insurer objected to the documents. In her analysis of the issues, Adjudicator Truong noted that on a review of the evidence, there was conflicting evidence of what the Applicant could and could not do after the first accident, and the Applicant did not adduce any evidence as to what her activities and life circumstances were before the accident, which were important to her, and how she was prevented from engaging in the activities as a result of her accident-related impairments. Adjudicator Truong found that the Applicant had not proven on a balance of probabilities that she suffered a complete inability to carry on a normal life, noting that “Being unable to engage in activities post-accident that you engaged in pre-accident is not determinative of entitlement to a non-earner benefit. The Applicant must prove that she is unable to engage in substantially all of her pre-accident activities.”

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Adjudicator Truong also rejected the Applicant’s submission that the Tribunal should award the balance of the treatment plan on “compassionate grounds”, noting that this was not a remedy available under the SABS, and found that the Applicant failed to provide evidence as to why the balance of the plan was reasonable and necessary. Adjudicator Truong did agree to hear the Applicant’s request for costs despite the Insurer’s objection that the issue was not raised at the Case Conference noting that Rule 19.2 allowed a party to make a request for costs at any time before the decision or order is released. Nonetheless, costs were not awarded as the Applicant failed to show evidence of conduct that is unreasonable, frivolous, vexatious or in bad faith

45.

Case Name: M.P. and Certas Home and Auto Insurance Company, 2017 CanLII 9810




Summary The issue in dispute was entitlement to attendant care benefits for the first 104 weeks post-accident, which was provided by his wife, a Personal Attendant (Health Care Aid). The Applicant was 70 years old and had severe knee issues post-accident, as well as being diagnosed with major depression, mixed chronic pain, sleep apnea and severe stress. At the hearing, it was acknowledged that the Applicant’s wife was professionally qualified to provide attendant care services. Pre-accident, his wife had worked through Seniors For Seniors as a live-in personal attendant for a 90-year-old female client approximately 72 hours per week. Post-accident, his wife continued this live-in work, and from July 8, 2013 (date of the accident) to December 2014 provided care to the Applicant four days per week, five hours per day. In January 2015, the Applicant’s wife developed a sciatic problem and stopped providing care to her 90-year-old client, and changed the care to the Applicant to seven days a week, five hours per day. Adjudicator Sewrattan declined to find that the Applicant’s wife’s sciatic condition would not have developed or worsened to such a degree but for the physical demands of having to care for her husband after the accident for two reasons: 1) this was not explicitly stated in her affidavit, and, 2) no medical corroborating evidence was provided as to her condition. Instead, Adjudicator Sewrattan agreed with the Insurer’s submission that the Applicant’s wife stopped working as there was no work available and there was therefore no causal connection between the motor vehicle accident and her unemployment.

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In his analysis as to whether attendant care expenses were “incurred”, Adjudicator Sewrattan noted that the Applicant’s wife was at the intersection of the two classes of provider set out at s. 3(7)(e)(iii) of the SABS as a family member of the Applicant, who was also professionally qualified to provide the requisite attendant care services. However, Adjudicator Sewrattan was not convinced that the Applicant’s wife’s services fit within the meaning and intent of s. 3(7)(e)(iii)(A), noting that “the provision requires that the service is the product of an employment, occupation, or profession in which the applicant’s wife would have ordinarily been engaged even if her husband was not involved in a motor vehicle accident. Furthermore, s. 3(7)(e)(ii) requires that the applicant promised to pay his wife or be legally obligated to pay her.” Adjudicator Sewrattan noted that the evidentiary record suggested that the Applicant’s wife would not have been engaged in providing her service even if the accident did not occur, she was not promised compensation by the Applicant, and her service would have been provided even if she was not compensated by the Applicant. Adjudicator Sewrattan found that the Applicant’s wife’s work was the type the Legislature attempted to disqualify from compensation when it amended the SABS in 2010, and that while the Applicant’s wife was professionally accredited, her service was not rendered in her professional capacity. Adjudicator Sewrattan further found insufficient evidence to show that the Applicant’s wife had to work less after the accident in order to provide professional care to the Applicant, or that she sustained an economic loss in providing her service. Adjudicator Sewrattan found that the situation indicated a wife supporting her husband during her free time without remuneration and while laudable, was not compensable under s. 3(7)(e)(iii) of the SABS.

46.

Case Name: P.B. and RBC Insurance Company, 2017 CanLII 9816




Summary The main issue in dispute was whether the Applicant was entitled to HST on the fee for an accounting report which is capped at $2,500 under section 7(5) of the SABS. Other issues which arose related to interest on payments of benefits which were outstanding prior to the first case conference, and costs. Adjudicator Sewrattan found that the Applicant was not entitled to the $268.50 in HST for the accounting report. In his analysis, Adjudicator

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Sewrattan noted that the one case cited by the Applicant (Kennedy v. Traders General Insurance Company, FSCO A02-001715) was not persuasive as the issue was not clear whether it dealt with an accountant’s report in the application of GST, in addition to being dated, not binding, and with little analysis to assist this case despite the FSCO arbitrator’s comments in Kennedy that “if the legislature had intended that they be inclusive of GST, it would have been easy enough to make that explicit”. Adjudicator Sewrattan similarly found the Insurer’s arguments in citing the Expense Regulation for expenses related to arbitration hearings as well as case law (Clipperton v. Zurich Insurance Co., 2002 CarwellOnt 5275) were not persuasive. In Clipperton, the FSCO arbitrator held that where a maximum amount prescribed in the Dispute Resolution Expense Schedule was met there was no further payable for taxes, but Adjudicator Sewrattan declined to apply these principles noting it would be unsound to apply principles out of that statutory scheme to the SABS. Instead, Adjudicator Sewrattan found that the Applicant had failed to meet his onus to show entitlement to the benefit on a balance of probabilities, noting there was insufficient material to support the Applicant’s argument. The Applicant’s claim for HST was dismissed. **NOTE: A separate decision of Adjudicator Sewrattan (J.M. and Wawanesa, 2017 CanLII 9809) below at #51 makes the completely opposite finding re: HST and section 25 reports. On the issue of interest, in this case, between the Case Conference and the final Order for the Hearing, the parties reached an agreement relating to the payment of IRBs and for outstanding benefits to a clinic, but the issue remained as to whether interest was owed on payments for the benefit outstanding prior to the first Case Conference. Adjudicator Sewrattan noted that with respect to IRBs, the particular timing and exchange of requested records under s. 33 led to no interest on the IRB as the Applicant failed to provide information within the timelines and no reasonable explanation for the delay was ever provided, therefore pursuant to s. 33(8), the benefit was not outstanding and the claim for interest on the IRB was dismissed. With respect to the payment to the clinic, Adjudicator Sewrattan noted that the claim for interest was dismissed for two reasons: 1) it was not properly before the Tribunal as it was an issue which had settled privately between the parties, and, 2) due to evidentiary gaps in the Applicant’s submissions.

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Adjudicator Sewrattan also rejected the Applicant’s argument that costs should be payable because the Insurer was so incorrect to dispute his claims that it was unreasonable to require him to bring this Application to the Tribunal. Adjudicator Sewrattan noted that even assuming the Insurer’s conduct was properly impugned, which was doubtful, it arose prior to the Tribunal’s proceeding and the cost request under Rule 19.1 was dismissed as it only allowed for costs where the conduct occurs in a proceeding before the Tribunal. Adjudicator Sewrattan similarly rejected the Insurer’s claim for costs on all three grounds raised, noting that the IRB issue raised was a novel legal issue about HST and s. 7(5) of the SABS; the Applicant’s failure to address interest in his initial submissions and only on reply was less than ideal, but the issue was listed on the Tribunal’s Case Conference Order and therefore did not rise to the level of unreasonable, frivolous, vexatious, or in bad faith; and, the Insurer’s inconvenience in defending an issue in dispute properly brought before the Tribunal, however weak, did not make the Applicant’s conduct unreasonable under Rule 19.1.

47.

Case Name: M.M.S. and Wawanesa Mutual Insurance Company, 2017 CanLII 9818 Note: Companion cost decision in B.F. and Wawanesa Mutual Insurance Company, 2017 CanLII 9821 (action arising from same accident)




Summary The issue in dispute was the Applicant’s entitlement to costs. At the Case Conference, the parties consented to exchange documents by October 25, 2016 and this consent was noted in the Tribunal’s Order. The Applicant’s lawyer sent a letter post-Case Conference requesting productions in advance of the deadline. By October 27, 2016, counsel for the Insurer had not complied and the Applicant’s lawyer wrote to the Tribunal advising of the failure, requesting a further order for productions, an extension of time for submissions, and costs. On November 2, 2016 the Tribunal wrote to the parties ordering the Insurer to produce documents by November 4, 2016, and both parties were given to November 9, 2016 to submit arguments on the issue of costs. On November 7, 2016 the Applicant filed submissions. On November 8, 2016, the Insurer’s lawyer wrote to the Applicant’s lawyer and copied the Tribunal advising the documents were request and would be forwarded once received. On November 9, 2016, the Tribunal contacted the

41


Insurer’s lawyer and confirmed his receipt of the Order dated November 2, 2016 as well as the Applicant’s submissions, before later receiving the Insurer’s submissions on the issue of costs. Adjudicator Lester found that the Insurer acted unreasonably and made no attempt to produce the required documents until after the second Order, and that both the Insurer and the Insurer’s lawyer were present for the Case Conference, and were aware of and consented to the timelines. Adjudicator Lester noted the Insurer had been disrespectful of the Tribunal’s process and provided no explanation as to why it did not comply with the Tribunal’s Orders. Although the Applicant sought costs of $1,000, Adjudicator Lester ordered costs payable of $250, noting $1,000 was not proportional to the specific behaviour, but that the award should be set high enough to discourage the conduct from occurring again.

48.

Case Name: S.C.W.H. and The Dominion of Canada General Insurance Company, 2017 CanLII 9807


Adjudicator: Samia Makhamra


Summary The issues in dispute were the MIG, and entitlement to two treatment plans for chiropractic services, and the completion of an OCF-3. Adjudicator Makhamra found that on the evidence presented, the Applicant failed to show that her injuries were not predominantly minor in nature, and failed to meet her onus to provide compelling evidence of a pre-existing medical condition to establish entitlement to a level of coverage beyond the MIG limit. The Disability Certificate listed injuries including: radiculopathy of the cervical region; injury of muscle and tendon at neck and thorax level; sprain and strain of the thoracic spine, ribs and sternum, shoulder joint, lumbar spine, and sacroiliac joint; contusion of thorax and knee; non-organic sleep disorders; and phobic anxiety. Similar injuries were listed on OCF-18s subsequent to the OCF-23 (which listed only sprains and strains). Despite this, Adjudicator Makhamra noted that the treatment providers failed to submit medical documentation to support the diagnoses other than sprains and strains, and also declined to accept the chiropractor’s diagnoses of sleeping disorder or phobic disorder as a chiropractor cannot make such diagnoses. Further, the Applicant’s family doctor and OHIP records for the period of five years post-accident only

42


showed one accident related visit of back strain in the month after the accident. With respect to a pre-existing condition, Adjudicator Makhamra believed the family doctor’s records did not diagnose a pre-existing condition, and all the Treatment Confirmation forms did not indicate a “checked box” for disease, condition, or injury which could affect her response to treatment. A further issue was raised in the Applicant’s submissions with respect to s. 38(8) of the SABS, which was not identified as an issue in dispute in the Case Conference Order. While the Insurer raised in its submissions that this was the first time the Applicant had raise the issue, Adjudicator Makhamra noted it responded to the issue without objection, and therefore determined there was no prejudice to the Insurer in considering the issue. Nonetheless, Adjudicator Makhamra found no issue with the notice requirements under s. 38 (8) and (9) despite the Insurer’s not referring the Applicant for IE assessments on the basis that both the Applicant and Insurer had proceeded on the basis that the Applicant’s injuries were minor (seeking and approving treatment under the MIG). Adjudicator Makhamra found that the Applicant had not forwarded any medical information or claims of a pre-existing injury in response to the Insurer’s invitation to do so, and that while the Insurer could have arranged an IE, it was not required to do so.

49.

Case Name: F.V. and Wawanesa Mutual Insurance Company, 2017 CanLII 9817




Summary The Applicant was deemed catastrophically impaired after the accident and the issue in dispute was whether rehabilitation benefits relating to expenses incurred during a trip to Florida and Disneyland with his daughter’s family and grandchildren were reasonable and necessary. Adjudicator Lester held that the expenses did not fit within section 16 of the SABS, noting that the goods and services must be provided for by a professional and require a treatment goal or be a modification or device that accommodates the needs of the insured person. While sympathetic, Adjudicator Lester rejected the Applicant’s argument that the expenses fit within section 16 as the trip facilitated a reintegration back into his family. The expenses were found not payable as they could not be classified as a rehabilitation benefit.

50.

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Case Name: B.F. and Wawanesa Mutual Insurance Company, 2017 CanLII 9821 Note: Companion cost decision in M.M.S. and Wawanesa Mutual Insurance Company, 2017 CanLII 9818 (action arising from same accident)




Summary The issue in dispute was the Applicant’s entitlement to costs. At the Case Conference, the parties consented to exchange documents by October 25, 2016 and this consent was noted in the Tribunal’s Order. The Applicant’s lawyer sent a letter post-Case Conference requesting productions in advance of the deadline. By October 27, 2016, counsel for the Insurer had not complied and the Applicant’s lawyer wrote to the Tribunal advising of the failure, requesting a further order for productions, an extension of time for submissions, and costs. On November 2, 2016 the Tribunal wrote to the parties ordering the Insurer to produce documents by November 4, 2016, and both parties were given to November 9, 2016 to submit arguments on the issue of costs. On November 7, 2016 the Applicant filed submissions. On November 8, 2016, the Insurer’s lawyer wrote to the Applicant’s lawyer and copied the Tribunal advising the documents were request and would be forwarded once received. On November 9, 2016, the Tribunal contacted the Insurer’s lawyer and confirmed his receipt of the Order dated November 2, 2016 as well as the Applicant’s submissions, before later receiving the Insurer’s submissions on the issue of costs. Adjudicator Lester found that the Insurer acted unreasonably and made no attempt to produce the required documents until after the second Order, and that both the Insurer and the Insurer’s lawyer were present for the Case Conference, and were aware of and consented to the timelines. Adjudicator Lester noted the Insurer had been disrespectful of the Tribunal’s process and provided no explanation as to why it did not comply with the Tribunal’s Orders. Although the Applicant sought costs of $1,000, Adjudicator Lester ordered costs payable of $250, noting $1,000 was not proportional to the specific behaviour, but that the award should be set high enough to discourage the conduct from occurring again.

51.

Case Name: J.M. and Wawanesa Mutual Insurance Company, 2017 CanLII 9809



44



Summary The issues in dispute were whether the Applicant was entitled to the cost of a neurocognitive assessment, a psychological assessment, costs for various items, HST payable on the neurocognitive assessment report in excess of the $2,000 cap under s. 25(5) of the SABS. At the outset, Adjudicator Sewrattan noted three procedural fairness issues: 1) the Insurer argued that the Applicant had not proven causation in relation to his request for the neurocognitive issue, which Adjudicator Sewrattan noted put the Applicant in the precarious position of proving causation in order to obtain the assessment, which would, presumably, assist him in proving causation at a future date; 2) the Applicant had produced a neurological report which touched on the causation issue, but this was not the report he promised to submit to the Insurer and the Tribunal. The Insurer tried to commission an independent medical exam under s. 44, but the Applicant failed to attend as he was entitled to do, however, this deprived the Insurer an opportunity to fully respond to the evidence; 3) neither party complied with the Tribunal’s 10-page limit on submissions. With respect to the neurocognitive assessment, Adjudicator Sewrattan noted that the treatment plan for the neurocognitive assessment stated that the intention was to help the Applicant decide whether or not to bring a claim for a determination of catastrophic impairment. Adjudicator Sewrattan noted this was significant as it invoked s. 25(1)(5) of the SABS which required the Insurer to pay “reasonable fees” for the preparation of an application for catastrophic impairment determination. Adjudicator Sewrattan found it significant that the section did not require that the Applicant prove the motor vehicle accident directly caused his impairment, noting that the causation requirement would occur at a later stage when the Applicant actually sought a determination of catastrophic impairment (s. 45(1) of the SABS). While the assessment was reasonable, Adjudicator Sewrattan noted that s. 25(5)(a) capped the payable amount for “fees and expenses” of an assessment at $2,000, and found that the $200 for documentation and support activity ran afoul of the rule and was not payable. The remaining $2,000 for brain testing was found to be reasonable. Adjudicator Sewrattan further found that the $2,000 cap did not include tax as the legislature explicitly stated the types of payments covered – “fees and expenses” – and that if tax were intended to be included, the Legislature would have stated so. Adjudicator Sewrattan therefore found that the absence of “tax” in the provision led him to believe it was not included.

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**NOTE: A separate decision of Adjudicator Sewrattan (P.B. and RBC Insurance Company, 2017 CanLII 9816) above at #46 makes the completely opposite finding re: HST and accounting reports under section 7(5). Adjudicator Sewrattan found that the psychological assessment was not reasonable and necessary, noting that there was nothing in the assessment to indicate that it was for an application for determination of catastrophic impairment, and that based on the dated medical evidence provided, Adjudicator Sewrattan preferred the Insurer’s assessor’s report as it outlined the tests used, the information obtained, and the conclusions drawn. In contrast, Adjudicator Sewrattan noted the screening form for the treatment plan did not explain the testing mechanisms or how they factored into the Applicant’s assessor’s opinion. Adjudicator Sewrattan noted that the prior treating psychologist’s clinical notes, the latest being from 2014, did little to assist the question of his current need for an assessment. Adjudicator Sewrattan also rejected the Applicant’s evidence and a report of a further assessor relating to his functional abilities where the information reported was contradicted by reports in surveillance, and other medical records, including hospital records which listed sports-related injuries post-accident. Regarding the 10 page submission limit, Adjudicator Sewrattan found that the Applicant’s other issues (transportation costs, prescription medicine, and an ambulance fee) were all dismissed for non-compliance with the Tribunal’s Order. Adjudicator Sewrattan noted that if a party wished to vary an Order, it must raise it with the Tribunal ahead of time, which was not done. Adjudicator Sewrattan noted the Insurer also provided submissions past the 10 page limit. However, despite this breach by both parties, Adjudicator Sewrattan went on to consider the evidence presented, and found that the Applicant failed to show the necessary causation in these issues to determine that they were reasonable and necessary and dismissed these claims.

52.

Case Name: J.V. and Wawanesa Mutual Insurance Company, 2017 CanLII 9800


Adjudicator: Lan An


Summary The issue in dispute was entitlement to an income replacement benefit from May 9, 2016 to September 12, 2016. According to her OCF-2, the Applicant was off work as a PSW on medical leave from September 21, 2014 to March 21, 2015. She returned to work

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on March 22, 2015 working 37.5 hours per week, which she reduced to 34 hours per week in June 2015. By January 5, 2016, she had stopped working. The Applicant again returned to work on September 13, 2016, at 30 hours per week on modified duties. Adjudicator An first looked at the Applicant’s essential tasks as a PSW, and considered the Applicant’s injuries, which the parties’ expert witnesses agreed were, at minimum, soft tissue injuries to the cervical and lumbar spine. Adjudicator An found that the Applicant would have difficulty performing many of her essential tasks of her employment as the tasks would require her to engage her back, where her soft tissue injuries were located, and noted she now was working reduced hours in spite of chronic pain and headaches, and had modified duties of assistance in lifting tasks. Adjudicator An found on balance of the evidence provided that the Applicant had established that she was substantially unable to perform the tasks of her employment and was entitled to the income replacement benefit from May 9, 2016 to September 12, 2016 plus interest.

53.

Case Name: Applicant and Aviva Insurance Canada, 2017 CanLII 9808

Date of Decision: February 1, 2017



Summary The issues in dispute were entitlement to income replacement benefits and an orthopaedic assessment. As a preliminary issue, the Insurer wanted to admit new information regarding the Applicant’s employment obtained from his Linkedin account identifying him as working as a director at a music publishing company, and an accountant’s report which changed the Insurer’s calculation of the IRB quantum. While Adjudicator Treksler allowed the new evidence, she assigned it no weight as the Linkedin page did not indicate whether the Applicant was working pre or post accident and alone did not prove the Insurer’s claim. Therefore, there was insufficient evidence to decide the correct weekly amount of IRBs and repayment. Adjudicator Treksler noted that this decision did not prevent the Insurer from filing its own application to address any future claim for repayment of benefits. With respect to ongoing IRBs, the Applicant relied on a number of assessor’s reports who diagnosed a number of physical and psychological injuries as a result of the accident. The Insurer relied on surveillance which showed the Applicant driving a vehicle, squeegeeing his car

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windows, walking, shopping, testing golf clubs in a store, and taking public transportation, which it claimed was in contrast to the Applicant’s claims of low energy, social withdrawal, and severe pain interfering with reaching, walking, and restricted shoulder movements. Adjudicator Treksler found that the Applicant had met his burden of proof to support his entitlement to IRBs taking into consideration the heavy physical requirements of his pre-accident employment as an assistant truck driver including heavy lifting and loading and unloading cargo. Adjudicator Treksler also noted his family doctor’s opinion and support for no return to work as a truck driver, and instead his family doctor approved the Applicant’s return to school in the field of business marketing, citing his injuries as a barrier. Adjudicator Treksler found that the Insurer’s assessors’ reports findings did not support their conclusions that the Applicant did not meet the test for IRBs, noting that the physiatry report made mention of the Applicant’s prior history of neck and lower back pain, and linked the soft tissue injuries to the accident, but then concluded no entitlement to IRBs without supporting explanations. Similarly, the Insurer’s psychologist diagnosed moderate depressive episode and adjustment disorder with mixed anxiety and depressive reaction, and specific phobia (driving), but still concluded the Applicant not meet the test for IRBs as a truck driver (despite a fear of being in trucks). Adjudicator Treksler therefore found the Applicant was entitled to IRBs. Adjudicator Treksler also found that the orthopaedic assessment, which was denied on the basis of the MIG, was reasonable and necessary as the records supported that the Applicant had pre-existing psychological impairment at the time when the treatment plan was submitted, which injuries fell outside of the MIG. In addition the Applicant’s documented pre-existing neck and back pain suggested that the assessment was necessary and reasonable to confirm causation. The Insurer raised the decision of Arruda and Western, [2015] O.F.S.C.D. No. 177, which held that the Applicant had the burden of showing that the MIG did not apply when the treatment plan was submitted. While Adjudicator Treksler did not comment on whether or not the decision or reasoning was binding or persuasive, it appears from her analysis in this section that the analysis was in line with the reasoning in Arruda.

54.

Case Name: K.T. and Allstate Insurance Company of Canada, 2017 CanLII 9820




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Summary The issue in dispute was entitlement to claim income replacement benefits in Ontario in a situation involving two jurisdictions. The Applicant was involved in an accident in Ontario on November 28, 2013 when she was struck by a car while walking. She did not own a car, but both her spouse and the driver of the car which struck her had automobile insurance with the Insurer, Allstate. After the accident, on January 6, 2014, the Applicant applied for accident benefits from the Quebec Société de l’Assurance Automobile (SAAQ) and was entitled to income loss compensation of $371.64 per week. These were ongoing until termination on November 5, 2014. The Applicant did not appeal and the reasons for the SAAQ termination and non-appeal were not before the Tribunal. On November 20, 2014, the Applicant applied for IRBs in Ontario, and disclosed she had received benefits from SAAQ. She received IRBs of $145.66 per week beginning November 6, 2014 which were terminated June 10, 2016 for medical reasons. The Applicant was disputing her termination of IRBs. The Insurer initially claimed the initial IRB was paid in error, but withdrew this claim. Adjudicator Pay found that the Applicant met the definition of “insured person” under the SABS as a spouse of a named insured, who was in an accident in Ontario. Adjudicator Pay further found that an insured person may have access to IRBs in other jurisdictions, in addition to Ontario pursuant to s. 4(1)(b) of the SABS, noting that the income loss benefit compensation under the SAAQ were “payment for loss of income that is received or available as a result of the accident” and nothing turned on the fact that they were paid bi-weekly rather than weekly. Adjudicator Pay also found that the question of “excess” benefits to be irrelevant as the Applicant was not claiming benefits under the SABS for the same period as she was receiving benefits under the SAAQ. Adjudicator Pay noted that s. 7(1) discussed IRBs and income replacement assistance as being deductible for the “particular week the benefit is payable”. In addition, although raised by the Insurer, Adjudicator Pay found the case of Dubreuil v. AXA Insurance (FSCO A98-000290) to stand for the principle that accident victims can claim in both provinces, provided there is no double compensation. Lastly, Adjudicator Pay cited the case of Vanderkop v. Personal Insurance Co. of Canada, 2009 ONCA 511, noting there was no obligation on an insured “to litigate with their collateral benefits insurer, at their own risk and expense, for the benefit and at the discretion of, their accident benefits insurer” (para. 26). Although the SAAQ benefits were not collateral benefits, Adjudicator Pay found them to be analogous and

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therefore found the Applicant should not be penalized for not assuming the risk and expense to dispute the termination of her SAAQ income-related benefits. The Applicant was therefore entitled to claim IRBs in Ontario and not precluded from pursuing her application with the Tribunal.

55.

Case Name: Applicant and TD Home and Auto Insurance Company, 2017 CanLII 9813




Summary The issue in dispute was entitlement to income replacement benefits. Adjudicator Sewrattan noted that despite being represented by counsel, the Applicant did not provide submissions, case law, or the statutory test for entitlement to an IRB. The Applicant’s claim was inferred from the evidence he has put before the Tribunal. In the analysis, Adjudicator Sewrattan pulled information out from the medical reports to identify the Applicant’s job at the time of the accident, causation, job duties, and whether he suffered a substantial inability to perform the essential tasks. The Applicant also in Reply served new tax information which appears to not have previously formed part of his materials in response to issues raised by the Insurer. Adjudicator Sewrattan found serious concerns with the Applicant’s assessors’ reports noting that they failed to describe the objective methods for testing and relied heavily on the Applicant’s self reports. In turn, Adjudicator Sewrattan noted the Applicant’s credibility was in significant doubt as surveillance showed him performing in excess of his reported abilities, including walking regularly without a cane, driving, and being active on a daily basis. Adjudicator Sewrattan further noted that the onus was on the Applicant to prove on a balance of probabilities that he suffered from a substantial inability to perform the essential tasks of his employment and a failure to do so meant the analysis was over. Adjudicator Sewrattan noted that the Insurer’s evidence was not relevant because the Applicant failed on his own to prove his case.

56.

Case Name: H.C. and Certas Direct Insurance Company, 2017 CanLII 9814




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Summary The issues in dispute were entitlement to income replacement benefits, and entitlement to a psychological assessment and chronic pain assessment, plus costs, interest, and a special award. The Applicant alleged his psychological problems prevented him from working. At the time of the accident on July 24, 2014 he worked at a paper company which work involved driving, making sales calls, and deliveries. After the accident he was off work for two months and his employer told him his services were no longer required. He took high school courses starting in October 2014, enrolled at Seneca College in the summer of 2015, and graduated with a business diploma in August 2016. IRBs were paid for about six months from July 2014 to March 2015 before being terminated. At the Hearing, in light of surveillance the Applicant conceded that he started work as an Uber driver in August 2016, and was operating a paper business by October 2016. Adjudicator Bass found the Applicant’s psychologist’s report contained very negative findings, including many statements about “indefinitely” and “permanent” impairments, which was found to be overly pessimistic in light of surveillance evidence taken only a few months later in November 2016. Surveillance showed the Applicant working, driving, bending, lifting boxes in and out of the vehicle, walking normally and delivering packages. The surveillance report further included a Linkedin page which showed the Applicant had been operating a point-of-sale paper business from September 2014 to present. The Applicant explained the Linkedin page date was used for cosmetic marketing purposes to cover an employment gap; however, Adjudicator Bass found the admission of posting inaccurate information did not add to the Applicant’s credibility, especially as he was in receipt of IRBs at the time and could explain he was recovering from an accident. Adjudicator Bass also noted the symptom magnification and exaggeration observations made by multiple assessors in several reports. Adjudicator Bass therefore was not convinced that the Applicant would have been unable to return to his previous line of work by March 2015. With respect to post-104 IRBs as the Applicant admitted he was working in two capacities and therefore did not meet the post-104 test. Regarding the two assessments, Adjudicator Bass noted that there did not appear to be any dispute that the Applicant’s physical injuries were minor. With respect to possible psychological problems, Adjudicator Bass again noted the reports of symptom exaggeration and magnification by

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both the Applicant’s assessors and the Insurer’s assessors, and taken together with the evidence as a whole, the Applicant’s injuries were minor and the assessment plans were not payable. Given these conclusions, Adjudicator Bass declined to consider the issues of interest, costs, and entitlement to a special award.

57.

Case Name: A.W. and Cooperators General Insurance Company, 2017 CanLII 9815



Hearing Type: In Person

Summary The issues in dispute were entitlement to non-earner benefits, the MIG, and a number of treatment plans. The Applicant was struck as a pedestrian on February 21, 2015. The initial OCF-3 dated March 11, 2015 indicated the Applicant did not meet the test for non-earner benefits. A further OCF-3 dated April 4, 2016 did support eligibility for non-earner benefits. With respect to non-earner benefits, in her analysis and review of the medical records, Adjudicator Pay placed less weight on the Insurer’s orthopaedic surgeon's paper review report assessing the non-earner benefit despite the assessor relying on the assessor’s prior physical examination of the Applicant for two assessments related to the MIG. Adjudicator Pay also noted that the medical records provided by the Applicant did not provide any details about the impact of the accident on his activities. Adjudicator Pay accepted the Applicant’s evidence based on his testimony, which was found to be consistent with the medical evidence, that he had been consistently suffering from back, left leg/ankle and right shoulder pain with reduced range of motion following the accident. However, Adjudicator Pay noted that surveillance showed that he was still able to do many other activities such as shorter drives, attending at work daily where he helped a friend for a full day assisting customers, selling and repairing cell phones, doing light grocery shopping, and so on, which activities were not disputed by the Applicant. Despite his ongoing pain, Adjudicator Pay therefore found the Applicant’s account of his activities did not suggest that he was prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident and was therefore did not prove on balance that he was eligible for non-earner benefits. Adjudicator Pay also referred to the decision in Heath v. Economical Mutual Insurance Company, (2009) 95 O.R. (3d) 785 for the non-earner

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benefit analysis, and Galdamez v. Allstate Insurance Company of Canada, (2012 111 O.R. (3d) 321 supporting the proposition that it was possible, though unlikely, for an insured to work at their pre-accident job and meet the non-earner benefit disability standard. Adjudicator Pay further found that the Applicant had not proven on a balance of probabilities that his injuries were not minor. While the records showed an increase in visits to his family doctor post-accident, and an MRI conducted approximately one year post-accident could indicate injuries outside of the MIG, Adjudicator Pay noted that there was no medical evidence or opinion before her to link the MRI findings to the accident, or to counterpoint the Insurer’s orthopaedic assessor who opined that the Applicant’s shoulder and low back issues were not accident-related, and his only accident related impairments had now healed. The Applicant therefore had not met his burden to prove his injuries were outside of the MIG. As the MIG limits had been exhausted, Adjudicator Pay declined to assess the remaining issues dealing with the treatment plans.

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