April 07, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
ENTITLEMENT TO BENEFITS – eligibility for NEBs; do injuries fall within the MIG; eligibility for interest; eligibility for special award
Comegna and Aviva
Date of Decision: February 21, 2017
Heard Before: Adjudicator Charles Matheson
REASONS FOR DECISION
Ms. Colleen Comegna was injured in a car accident on February 13, 2014. She applied for and received
statutory accident benefits from Aviva, but when the parties were unable to resolve their disputes through mediation Ms. Colleen Comegna applied for arbitration at the FSCO.
- Is Ms. Comegna entitled to receive a non-earner benefit of $185.00 per week, commencing August 13, 2014 up to December 15, 2014?
- Is Ms. Comegna’s impairment(s) properly characterized by Aviva as predominantly minor in nature and subject to the Minor Injury Guideline (“MIG”)?
- Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Comegna?
- Is Ms. Comegna entitled to interest for the overdue payment of benefits?
- Ms. Comegna has no entitlement to a non-earner benefit and is precluded from arbitrating the non-earner benefit.
- There is no compelling evidence that Ms. Comegna’s injuries or impairments are linked to the car accident. Therefore Ms. Comegna’s injuries fall within the MIG at this time.
- The Arbitrator was not able to find any delayed payments of benefits or interest on same, therefore no special award is not applicable.
- There are no overdue or delayed payments of benefits for which interest could be assessed. Therefore, no interest to be awarded.
EVIDENCE AND ANALYSIS:
Ms. Comegna and Aviva reached a settlement of this Arbitration on December 21, 2016. Ms. Comegna then attempted to rescind the settlement which raised the first of four preliminary issues for this Arbitration. The preliminary issues were raised in this sequence:
- Aviva raises: Is the settlement of December 2016 enforceable, making this Arbitration moot?
- Ms. Comegna raises: Is this Arbitrator able to hear this Arbitration after reading the settlement documents?
- Ms. Comegna raises: Is Ms. Comegna able to withdraw certain issues in dispute at Arbitration?
- Aviva raises: Is Ms. Comegna able to bring a non-earner benefit dispute to Arbitration when she did not attend the requested s. 44 examinations for the non-earner benefit?
Aviva argues that the letter, dated December 23, 2016, from Ms. Comegna’s counsel’s office, attempts to confirm that Ms. Comegna rescinds the settlement. The issue for Aviva is that this letter is not proper notice and as such, is not a valid rescission, thereby making this Arbitration unnecessary. Aviva requests a finding that the settlement is valid and binding on the parties.
Ms. Comegna argues that all the required information is present and contained within the rescission letter. Ms. Comegna continues to argue that the lack of a cover page is a small technical defect and that the DRPC’s Rules give the Arbitrator the ability to allow the document to stand.
The Arbitrator reviewed the law in the matter and determined that the Schedule is clear in the procedure to be followed, and the information that must be contained in in the rescission letter. The Arbitrator agreed that all required information was in the letter.
The Arbitrator ruled that the language used by the legislature—in this instance the word “must”—is directorial in nature and not mandatory. The word “shall” as used throughout the legislation is mandatory in nature. If the legislature wanted a cover page to be included in a faxed document then they would have done so and used a mandatory word. Therefore, Ms. Comegna’s rescission letter is valid and Ms. Comegna is not bound by the settlement and is able to proceed with this Arbitration.
Ms. Comgna’s counsel wanted to withdraw certain treatment plans, withdraw the MIG issue because the medical benefits are no longer in dispute, and limit the non-earner benefit being claimed to December 15, 2016.
Aviva’s counsel objected to the withdrawal of the MIG issue only, arguing that the MIG issue was ultimately attached to the non-earner benefit in this case and it would be inappropriate to remove same in this Hearing. Further, Aviva argued that Ms. Comegna has submitted an application to the Licensing and Appeals Tribunal and allowing her to withdraw this issue would only allow Ms. Comegna a second attempt to arbitrate the MIG issue.
Ms. Comgna’s counsel argued that there is case law that suggests that the MIG does not affect an Ms. Comgna’s ability to collect a weekly benefit, such as income replacement benefits. It is only a threshold test to allow Ms. Comegna to access a second tier of benefits. Ms. Comgna’s counsel implies that if income replacement benefits are payable within the MIG then this allows for the other weekly benefits (non-earner benefit) to be paid within the MIG. Ms. Comgna’s counsel did not provide me with any case law to support her position.
The Arbitrator determined that the non-earner benefit is different from the income replacement benefit as the non-earner benefit test is extremely different and meant to be awarded for different reasons. The non-earner benefit is generally prefaced with a medical condition which removes Ms. Comegna from within the MIG, and is severe enough that Ms. Comegna’s life has changed to an extreme, usually never to return to pre-accident normal life activities.
Ms. Comegna alleges she was entitled to non-earner benefits from August 14, 2014 and likely would have been successful up to and/or beyond December 15, 2016; however, Ms. Comegna made a critical and fatal mistake when she refused to complete the s. 44 examination of Dr. Syed on October 22, 2016. This is the overriding factor that determines whether or not this issue can be arbitrated at all; therefore, the events leading to October 22, 2016 are of no consequence. When Ms. Comegna refused to complete the assessment, Ms. Comegna failed to show her entitlement for the non-earner benefit. For those reasons, the Arbitrator found that Ms. Comegna is precluded from arbitrating the non-earner benefit.
The Arbitrator then reviewed the evidence presented and determined that Ms. Comegna failed to provide compelling evidence that her injuries or impairments are linked to the car accident. Therefore, on a balance of probabilities, the Arbitrator found that Ms. Comegna’s injuries fall within the MIG at this time.