Volume. 9 Issue. 19 – June 18, 2025
Applicant Rendered CAT Not Entitled to IRB
This week, the Tribunal considers whether an Applicant, operating her vehicle while her license was suspended, was nevertheless entitled to IRB. Deemed CAT, the Applicant also sought in excess of $12,000 in supportive physical therapy.
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CAT With Suspended License – The Applicant Kuo, in 23-007392 v Security National, sustained a catastrophic impairment as a result of injuries sustained in a November 2018 MVA. At issue was whether her driving with a suspended driver’s license precluded her from obtaining IRBs, and whether IRB already paid was owed back to Security National. She also sought entitlement to two OCF18 for physical therapy, each in excess of $6,000.
Suspended License
The Tribunal noted that under s. 31(1)(a)(ii) of the Schedule an insurer is not liable to pay an IRB to a person who was driving without a valid driver’s licence at the time of the accident. In addition, a person is liable to repay any IRB paid to them if the person was disqualified from receiving the benefit under Part VII of the Schedule. For her part, Kuo did not dispute that she was driving with a suspended licence at the time of the accident. The MOT Driver’s Licence History indicated that her driver’s licence status was “Suspended/Cancelled/Unlicensed/Unrenewable” with an “Expiry Date” of September 21, 2018, being more than two months before the subject accident. In addition, the MVA report also identified Kuo as a “Suspended Driver”.
Respondent’s Position
Security National submitted that the wording of s. 31(1)(a)(ii) of the Schedule is clear and direct, that as Kuo was driving without a valid driver’s licence, they are not required to pay an IRB. Further, that “unlike other subsections of s. 31(1)(a), a “knowledge requirement” is not required for subsection (ii). For example, s. 31(1)(a)(i) and (iv) have the added language “if the driver knew or ought reasonably to have known”. As such, s. 31(1)(a)(ii) holds that the fact that the applicant was driving without a valid driver’s licence is sufficient to eliminate any IRB payment obligations from the respondent, regardless of the applicant’s knowledge or other contextual factors.”
Applicant’s Position
Kuo submitted that “she had no “ill intention” to drive without a licence and that her driver’s licence was only suspended. She argues that she was not aware that her licence had been suspended and that there is no definition of driver’s licence in the Schedule. The applicant further submits that she has been found to be catastrophically impaired, and as such, should be treated with care. Finally, the applicant argues that her suspension was during the height of the COVID-19 pandemic and that the renewal processes were restricted during these unprecedented times.”
The Tribunal Finds
The Tribunal noted that while Kuo argues that her driver’s licence was only “suspended” and that there is no definition of driver’s licence in the Schedule, Security National had tendered caselaw where a suspended licence was found to be an invalid licence. In one such case, Leduc v. Aviva, the ‘definition of “valid driver’s licence” was considered, and it was identified as a licence that is “not expired, cancelled or under suspension”. I find the decisions cited by the respondent persuasive on the point that a suspended licence is not a valid driver’s licence. The applicant has provided no authority or caselaw to support her position that a suspended licence is still a valid driver’s licence.”
Further, the Tribunal was not persuaded by Kuo’s argument that she was unaware of the suspension or unable to renew her licence due to COVID delays and closures. The Tribunal agreed with Security National, supported by caselaw that whether or not Kuo knew of her suspension is not a relevant consideration under s. 31(1)(a)(ii), as this subsection does not provide for a defence of reasonable explanation or driver’s knowledge. In addition, s.31(1)(a)(ii) also does not contemplate the consideration of contextual factors, such as whether Kuo was catastrophically impaired. The argument regarding COVID related issues was also not accepted, given that the MVA occurred more than a year before any COVID related restrictions or delays were put in place.
Repayment
Given that Kuo was found to be disqualified from receiving IRBs, Security National requested repayment of IRBs pursuant to s. 52 of the Schedule, in the amount of $9,483.76. The Tribunal noted that under s. 52(1)(b) of the Schedule, a person is liable to repay any IRB paid to them if the person was disqualified from receiving the benefit under Part VII of the Schedule. Given its findings above, and that Security National had produced a compliant request for repayment, the Tribunal ordered that the IRBs paid by Security National to Kuo were repayable to them.
Treatment
For the Applicant
Kuo also sought entitlement to two OCF18s for physical therapy from two clinics, dated two months apart, totalling in excess of $12,000. It was Kuo’s position “that she has met the burden of a catastrophic determination, and that all of her treating practitioners have said that the treatment is necessary…the records confirm that treatment has assisted in her pain and level of functionality, and that the applicant’s treating practitioners should be given greater deference than the respondent’s insurer’s examination (“IE”) assessors.”
For the Respondent
For their part, Security National submitted that both OCF-18s proposed an excessive amount of repetitive treatment rather than specialized or uniquely formulated treatment. They relied on a s. 44 orthopaedic assessment that concluded that no further facility based physical rehabilitation, either active or passive, was clinically indicated. With respect to the catastrophic impairment, Security National submitted that she was deemed catastrophically impaired on psychological grounds, not physical.
The Tribunal Says…
The Tribunal found that “(p)articularly in the case of ongoing therapeutic treatment, evidence is required to establish the efficacy of continued treatment, years after the accident. The applicant argues that her records establish that treatment has improved her pain and functionality. However, she does not direct me to any specific medical record, report or clinical notes and records (“CNR”) entry in support of this claim. Rather, the applicant provides the general submission that “the records” confirm improvement.
In addition, the “Case Conference Report and Order expressly specified that the parties’ submissions must make “specific reference to the evidence by tab and page number.” The applicant has not made any specific reference to evidence supporting her claim of improvement in symptoms as a result of treatment. The Tribunal’s role is that of a neutral arbiter, not an advocate for any party. The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing her case.”
Finally, it was noted that Kuo “reported “some” improvement with prior physiotherapy, she reported to both her own and the respondent’s CAT psychological assessors that her physical improvement since the accident was 0%, if anything her pain has worsened, and that nothing helped her pain, including physiotherapy…(Kuo) does not direct me to any CNR from her family physician or specialist around the time of the OCF-18 submission, to establish whether further physiotherapy or chiropractic treatment was being recommended by her treating doctors. As such, I find that the applicant has not met her onus to prove that the OCF-18s for physiotherapy and chiropractic treatment are reasonable and necessary.”
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