Automobile Injury Compensation Appeal Commission

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Automobile Injury Compensation Appeal Commission
IN THE MATTER OF an appeal by [the Appellant]
AICAC File No.: AC-97-02
PANEL:
Mr. J. F. Reeh Taylor, Q.C. (Chairperson)
Mr. Charles T. Birt, Q.C. Mrs. Lila Goodspeed
APPEARANCES:
Manitoba Public Insurance Corporation ('MPIC') represented
by
Ms Joan McKelvey
[Text deleted], the Appellant, appeared on his own behalf
HEARING DATE:
April 28th, 1998
ISSUE:
Residence - whether Appellant entitled to medical expenses or
other benefits under the MPIC Act
RELEVANT SECTIONS: Sections 37(b), 58, 136(1)(d) and 74(1)of the MPIC Act,
Section 1 of Manitoba Regulation 37/94, Sections 5 and 38 of
Manitoba Regulation 40/94 and Section 8 of the Domicile and
Habitual Residence Act of Manitoba.
AICAC NOTE: THIS DECISION HAS BEEN EDITED TO PROTECT THE APPELLANT’S PRIVACY
AND TO KEEP PERSONAL INFORMATION CONFIDENTIAL. REFERENCES TO THE APPELLANT’S
PERSONAL HEALTH INFORMATION AND OTHER PERSONAL IDENTIFYING INFORMATION
HAVE BEEN REMOVED.
REASONS FOR DECISION
We note, at the outset, that the delivery of this Decision and the Reasons for it have been
purposefully delayed, in order to give the parties an opportunity to make any further
representations to us that they might deem appropriate. [The Appellant], after receiving a copy of
some material submitted by MPIC, asked that he be given time to submit that material to his
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solicitor. Hence, the hiatus between the date of hearing and the delivery of this Decision.
[Text deleted], the Appellant, was involved in a single vehicle automobile accident near [text
deleted], Ontario, on the 7th of March 1994. The Appellant, unemployed at the time, was
operating a [text deleted] automobile, bearing Manitoba Licence Plate No. [text deleted] which
was registered in the name of his wife, [text deleted]. She had registered the vehicle in
Manitoba on November 1st, 1993, giving her place of residence as [text deleted], Manitoba.
[Appellant’s wife’s] [text deleted] vehicle had originally been registered in Ontario under Licence
Plate [text deleted]. She had correctly given her address, when registering the vehicle there, as
[text deleted], Ontario. The Ontario registration was due to expire on November 16th, 1993 and
presumably [Appellant’s wife], being unsure of the date when she would actually be returning to
Ontario, had decided to register here. The address that she gave when doing so was, however, a
misrepresentation
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her actual residence at all material times was, in fact, in [text deleted],
Ontario. She had merely to come into [Manitoba] for obstetrical services in late September of
1993; [the Appellant], who was on parole at the time, obtained permission from Correctional
Services Canada to accompany her to [Manitoba] from September 22nd to October 22nd, 1993, a
date subsequently extended to November 10th. He gave his parole officer the address of [text
deleted], [Manitoba], as the place where he and his wife would be staying, although [Appellant’s
wife], as noted above, had given [text deleted], [Manitoba], as her place of residence.
MPIC's file reflects the result of certain investigations made with respect to the residence of [the
Appellant]. and [Appellant’s wife] at material times:
(a)
the owner of [text deleted], which is the address given by [the Appellant] to his parole
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officer and is also the address given by [the Appellant]. and [Appellant’s wife] to the [text
deleted] when they applied for benefits on September 29th, 1993, says that she had never
heard of nor met anyone by the name of [the Appellant] and [Appellant’s wife]. The
owner lives on the second floor of the two-storey duplex at that address and stated that the
lady who lived on the main floor at all material times was a close friend of hers, a [text
deleted], who had lived there for a long time until her death in mid-1995. [Text deleted]
had one daughter who did not live with her but would visit her occasionally. The owner
stated that there had never been anyone else, of whom she might possibly have been aware,
living with [text deleted]. [The Appellant] refutes that by testifying that [text deleted] was
his aunt and that he had indeed stayed there with her, albeit briefly, in October of 1993;
(b)
the owner of [text deleted] agreed that she was a friend of [the Appellant] and [Appellant’s
wife] and that [Appellant’s wife] had stayed with her "off and on in 1993 and 1994" when
the [Appellant and his wife] dropped in to the City. She had given [Appellant’s wife]
permission to use her address when registering her vehicle;
(c)
the personnel manager for [text deleted] confirmed that [Appellant’s wife] had been hired
to work at a [text deleted] at [Ontario] in April of 1993, had left in August of 1993 after
applying for maternity leave but had not initially returned after her 27 weeks of leave had
expired. [Appellant’s wife] had, however, reapplied for employment and had started
again with [text deleted] at [Ontario] in May of 1994. Meanwhile, [Appellant’s wife]
received unemployment insurance benefits out of the [text deleted] office from August
29th, 1993 until March 5th of 1994. [The Appellant], for his part, received 37 consecutive
weeks of
unemployment
insurance
benefits, starting
in September
of
1993.
[Appellant’s wife's] income tax returns, and those of her husband, for the years 1993, 1994
and 1995 were all filed in the Province of Ontario, although the 1994 return indicates that
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they were filing as separated spouses.
We have no hesitation, therefore, in finding that at all material times neither [the Appellant] nor
[Appellant’s wife] was a resident of Manitoba within the meaning of Sections 1 and 8 of Manitoba
Regulation 37/94 and of Section 8 of the Domicile and Habitual Residence Act of Manitoba.
(Copies of those Sections, and of all other legislative provisions referred to in these Reasons are
attached to and intended to form part of these Reasons.)
Two forms of Application for Compensation were filed on [the Appellant’s] behalf with MPIC.
The short, one-page form, while it does show the address of [text deleted], [Manitoba], shows
telephone numbers both in [Manitoba] and in [Ontario] and was never signed by [the Appellant].
The longer form, which he did sign, clearly shows his address as [text deleted], Ontario, and
merely notes that he had assisted with paying the rent for [Appellant’s wife] at [text deleted] and
had stayed there a while; that form, indeed, clearly says "moved back to [Manitoba] in September,
' 93, for two months". At the time [the Appellant’s] claim was first filed in that fashion, MPIC
personnel had some doubts as to the Appellant's proper residence but apparently felt either that
they did not then have sufficient evidence upon which to base a total denial of his claim or that
such a denial might result in protracted legal complications of greater expense than the matter was
worth. Matters were resolved on a basis that both parties, at the time, seemed to feel was
reasonable: [the Appellant] agreed that he would not be making a claim for any income
replacement and MPIC agreed that, upon that understanding, it would pay his medical expenses.
Under that arrangement, MPIC paid for [the Appellant’s] chiropractic treatments and his
prescribed medications from October 1st of 1994 until July 4th of 1996, bought him a lumbosacral
corset for $111.83, paid for some $385.00 worth of aids to assist his back, bought him a new truck
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seat to ease his lower back discomfort in October of 1995 for $2,250.00 plus GST, shipping and
handling and, in May of 1996, paid him $7,000.00 as compensation for permanent impairments he
had sustained in the form of compression fractures at T12 and L1, including some minimal bone
alteration following the compartmented fracture of the vertebral body at each location.
On July 4th, 1996 MPIC advised [the Appellant], by letter of that date, that the corporation would
no longer pay for chiropractic treatment nor for medication.
The reasons advanced were,
firstly,that further chiropractic treatment would not produce any lasting relief from his symptoms
and, secondly, that the risks of long term use of his pain medication were greater than the benefits.
The corporation did say that "should any further active treatment be required as a result of
exacerbation of low back pain, we would be prepared to consider limited physiotherapy and/or
massage, if prescribed, at a rehabilitation physiotherapy centre in [Ontario].
[The Appellant] applied for a review of that decision and, as a part of that application, also raised
the question of his entitlement to income replacement and retraining.
MPIC's Internal Review Officer, [text deleted], confirmed the decision of the Corporation's
adjuster with respect to chiropractic treatment and medication but pointed out that she was without
jurisdiction to deal with his claim for income replacement and retraining, since no decision had yet
been made on those points for her to review. [The Appellant] then reapplied to his adjuster for
income replacement,
and this apparently triggered a decision by
the Corporation to
reinvestigate the whole question of the [Appellant’s] family's residence.
For the purposes of this decision, it is not necessary for us to describe, in much detail, the medical
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and chiropractic evidence that is well documented in the file. It is enough to say that:
(a)
in the context of [the Appellant’s] claim for continued chiropractic or physiotherapy care,
both his own medical advisers and [text deleted], the Medical Coordinator of MPIC's
Claims Services Department, appear to have agreed that no further treatment was required.
They were also agreed that if, from time to time, [the Appellant] did require physiotherapy
or massage for acute exacerbation of low back pain, then the course of that treatment
should be limited to two or three times per week for three or four weeks at the most, with
little reliance upon the use of pain relieving modalities and a greater focus on mobilization
of the patient. Even if [the Appellant] were found to be entitled to such additional
physiotherapy, the need for it under the foregoing circumstances does not appear to have
arisen;
(b)
with respect to medication, [the Appellant] testified that he had been taking Percocet, a
drug prescribed by his family physician. We note, in passing, that [the Appellant] has a
history of drug addiction although, commendably, he appears to have completed
successfully a drug education rehabilitation program sponsored by the Federal
Government, in November 1991, following that up by completing a three phase drug
addiction program sponsored by the [text deleted] in [Manitoba].
He
returned to
[Ontario] and became a client of a drug addiction counselor in 1993; his counselor has
provided a letter to the effect that he has seen no abuse nor any signs of relapse through
close monitoring of [the Appellant] over a five month period. However, the principal
ingredient of Percocet is Oxycodone, of which the principal actions of therapeutic value
are analgesia and sedation.
But Oxycodone can produce drug dependence of the
morphine type and, therefore, has the potential of being abused, even unintentionally.
Oxycodone may also impair the mental and/or physical abilities required for the
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performance of potentially hazardous tasks such as driving a motor vehicle or operating
machinery.
As well, psychic dependence, physical dependence and tolerance may
develop upon repeated administration of Percocet. We therefore agree with MPIC's
medical consultant that the risks involved in continued use of that medication by [the
Appellant] outweigh the benefits.
(c)
as far as [the Appellant’s] claim for retraining is concerned, he has bought himself a
logging truck which, as noted above, has been outfitted with a specially designed seat for
the relief of his back problems. There is no medical evidence to indicate an inability to
work at his former employment, and that claim would also, therefore, have to be dismissed
in any event.
Following [MPIC’s internal review officer's] advice, [the Appellant] returned to his adjuster with a
claim for income replacement, which was denied initially upon the basis that [the Appellant] had
been available for work and was therefore not entitled to IRI. However, when the matter came
before [MPIC’s internal review officer] again, in order that she might deal with this additional
aspect of [the Appellant’s] claim, the Corporation had completed further investigations into the
residential status of [the Appellant] and [Appellant’s wife]. [MPIC’s internal review officer]
denied [the Appellant’s] claim for IRI and retraining, upon the basis that he had not been a
resident of Manitoba at the time of his accident and, therefore, was not entitled to benefits under
the Personal Injury Protection Plan. She found that [the Appellant] had "attempted to defraud the
Corporation by providing willfully false information stating that you were a resident of Manitoba
at all relevant times".
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We are not prepared to venture that far; [the Appellant] makes the point, which seems to be borne
out by the documentation on file, that he had never represented himself as a resident of Manitoba.
He had never signed the only document that seems to make that claim - the short form of
application for compensation referred to above - and had given his true, [Ontario] address in the
one form that he did sign. [The Appellant] says, further, that he had not initially asked for
anything more than reimbursement of his medical exoenses [sic]. He says "It was MPIC that
offered me a lump sum - I never asked for it". He carried on submitting his claims for
medication and chiropractic benefits because, he believed, he was entitled to those because the car
that he was driving was registered and insured under the Manitoba Public Insurance Corporation
Act. It is this latter fact that leads us to examine not only the residence of [the Appellant] but that
of his wife, as well.
The basic entitlement of the victim of a motor vehicle accident is covered by Sections 74 to 76 of
the MPIC Act. Sections 74 through 76 provide for benefits to a victim who is resident in
Manitoba, includes the owner and driver of, and any passenger in, a vehicle registered in Manitoba
where the accident takes place in this province, and also makes certain provision for a non-resident
victim of an accident that occurs in Manitoba. There are also provisions that extend to a Manitoba
resident involved in an accident outside this province. Nowhere in that portion of the MPIC Act
is there any provision
made for
insurance
coverage
of
a
non-resident
where
the
accident occurs outside
Manitoba.
This brings us to the relevance of [Appellant’s wife’s] residence, both at the time she registered
the vehicle in Manitoba and at the date of her husband's motor vehicle accident. At the date of her
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Manitoba registration, her Ontario registration was still valid although it was only about two and a
half weeks away from its expiry date. She misrepresented herself as being a Manitoba resident
when, in fact, she was only in this province on a very temporary basis for medical reasons. So far
as we can determine, she had returned to [Ontario] at some point during the last couple of months
of 1993.
Section 37(b) of the MPIC Act makes it clear that when an applicant for an owner's certificate
"knowingly misrepresents a fact required to be stated therein, any claim by or in respect of the
applicant.....and the right of every other person claiming through, on behalf of, or as a dependent of
the applicant or the insured to benefits and insurance monies shall be forfeited" unless that
forfeiture would appear harsh or inequitable, in which latter case there is provision for a relief
against that forfeiture. It is the position of MPIC that, by virtue of the misrepresentation of
[Appellant’s wife’s] residence in the application for registration of her vehicle in Manitoba, the
insurance that might otherwise have been in force was automatically rendered invalid.
The case of Belay v. Saskatchewan Government Insurance, a decision of Somers J. in the
General Division of the Court in Ontario, reported in the 1995 Insurance Law Reports, dealt with a
similar situation. Mr. Belay had purchased his vehicle in Ontario but, because he had moved
between Saskatchewan and Ontario on a number of occasions, he had registered the vehicle in
Saskatchewan.
Thereafter, the vehicle was involved in an accident in Ontario and Belay sued the Saskatchewan
Government Insurance Office, seeking indemnity for his resultant loss. Mr. Justice Somers
found, upon the evidence, that Mr. Belay was a resident in Ontario, that as a non-resident of
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Saskatchewan he was not required to register his vehicle there, and that the insurance certificate
issued in Saskatchewan was therefore void. Further, since Mr. Belay had failed to register his
vehicle in Ontario within 30 days after commencing to operate it in that province, as required, his
coverage would, in any event, be revoked under Section 14 of the Saskatchewan Automobile
Accident Insurance Act. Mr. Belay's action was therefore dismissed.
From the evidence before us, it does not appear that [Appellant’s wife] had re-registered her
vehicle in Ontario within 30 days after it had been returned to that province and, therefore, the
Manitoba owner's certificate is automatically deemed to have been revoked at the end of that
30-day period pursuant to Section 58 of the MPIC Act
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this, in addition to the fact that her
vehicle should not have been registered in Manitoba in the first place, rendering void the insurance
coverage that would have applied had she been a resident of this province.
We have also considered the question of estoppel - that is to say, whether MPIC, having accepted
an apparent obligation to pay certain medical and associated expenses of [the Appellant] is now
precluded from denying the continuance of that obligation. We have concluded that, since the
benefits of the Personal Injury Protection Plan contained in the MPIC Act are limited to victims
described in Sections 74, 75 and 76 of the Act, and since Sections 37 and 58 provide, in effect, for
automatic termination or invalidation of coverage, the principle of estopped does not apply in this
case for the benefit of [the Appellant]. As Professor David J. Mullan puts it, in the third edition of
his text on Administrative Law:
As a general principle, a statutory authority which possesses jurisdiction over a
particular matter or has a duty to do certain things cannot be estopped from
exercising or performing it. Similarly, a representation that jurisdiction or a duty
exists cannot estop a subsequent refusal to exercise that jurisdiction or perform a
duty which does not exist in law or in fact.
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That principle is emphasized in the case of Lidder vs. Canada (Minister of Employment and
Immigration) [1992] 6 Admin. L.R. (2nd) 62 (Fed. C.A.). Similarly, it cannot be argued on behalf
of [the Appellant] that he has any contractual right as a result of the arrangement that he made with
MPIC when filing his claim. While MPIC had apparently agreed to look after certain medical
expenses if he would forego his right to claim income replacement indemnity, the fact is that no
such right on his part existed in the first place and, therefore, any such alleged contract would be
voidable for failure of consideration.
In summary, then, we find that:
(a)
neither [the Appellant] nor [Appellant’s wife] was a resident of Manitoba at the time of [the
Appellant’s] motor vehicle accident;
(b)
[Appellant’s wife’s] vehicle was not properly registered in Manitoba, by virtue of the
misrepresentation as to residence
contained in her application for registration and,
therefore, any insurance coverage that might have resulted from the proper registration of
the vehicle is, in any event, void from the beginning;
(c)
any arrangement made by [the Appellant] with MPIC at the time of filing his claim for
compensation is not binding upon MPIC to the extent that it would require MPIC to
continue paying for [the Appellant’s] medical expenses and
(d)
even were there a continuing obligation upon MPIC to reimburse [the Appellant] for
medical expenses, there is insufficient evidence to establish the need on [the Appellant’s]
part for further chiropractic care, physiotherapy and medication of the kind that he seeks.
(e)
[the Appellant] is not a person entitled to compensation under Part 2 of the MPIC Act;
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For the foregoing reasons, we are obliged to dismiss [the Appellant’s] appeal.
Dated at Winnipeg this 7th day of September 1998.
J. F. REEH TAYLOR, Q.C.
CHARLES T. BIRT, Q.C.
LILA GOODSPEED