Neutral Citation: 2016 ONFSCDRS 274 FSCO A15-002128

BETWEEN:

MAYILA WUPUER Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Charles Matheson Heard: By written submissions due August 16, 2016 Appearances: Ms. Samia M. Alam, lawyer, particpated for Ms. Mayila Wupuer Mr. Sachin Kumar, lawyer, participated for Allstate Insurance Company of Canada

Issues:

The Applicant, Ms. Mayila Wupuer, was injured in a motor vehicle accident on November 29, 2012. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Wupuer applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this Preliminary Issue Hearing are:

Should Ms. Wupuer’s application for Income Replacement Benefits (IRBs) be dismissed by virtue of her not establishing her entitlement to same?
Is Ms. Wupuer or Allstate liable to pay the expenses in respect to this Arbitration?

Result:

Ms. Wupuer’s Application for Arbitration may proceed to Arbitration.
Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before an arbitrator in accordance with the provisions of the Dispute Resolution Practice Code, once they have settled all other arbitration disputes between them.

EVIDENCE AND ANALYSIS:

Background

As a result of the November 29, 2012 accident, Ms. Wupuer suffered certain physical injuries which would not allow her to return immediately to her employment.

Ms. Wupuer had worked in marketing for various temporary worker placement companies as far back as 2010. At the date of the accident, Ms. Wupuer submits that she was working for a firm call Team Staffing Solutions Inc. (“Team Staffing”), which is also owned by her eldest son. Ms. Wupuer and her counsel now classify Team Staffing as a family business, and it is now suggested that she did have part or complete ownership of this business.

Ms. Wupuer submits that she could not complete the duties required of her at Team Staffing, which is what triggered her initial application for IRBs.

Ms. Wupuer retained a law firm in Mississauga until March 2013 when she retained her current representative.

The Applicant is seeking $400.00 per week as an IRB, from March 22, 2013 to date and on-going.

Decision

The onus of proof of this preliminary issue rests with the Applicant.

Both parties have made it clear in their submissions that this preliminary issue is not to determine the Applicant’s medical entitlement to an IRB.

The parties have divided the initial question into two separate parts; Is the Applicant non-compliant with section 33 and 34 of the Schedule or/and was there enough information for the Insurer to calculate the on-going IRB throughout the first 104 weeks?

I shall answer both questions at the same time.

The parties, by way of submissions or by evidence, show the following critical timeline of events in chronological order for the issues before this Arbitrator:

a) The Applicant’s OCF-1, dated November 29, 2012, showed she was a manager at Team Staffing with an projected annual income of $55,200.00;

b) The Insurer paid the IRB from December 5, 2012 up to March 21, 2013;

c) The Insurer based its calculation of the IRB on the initial information contained in the OCF-1, OCF-2 and a variety of pre-accident pay stubs provided by the Applicant;

d) An OCF-2 was generated on January 15, 2013, as a result of the December 19, 2012 OCF-9 letter;

e) The Insurer commissioned a section 44 orthopedic assessment, dated February 25, 2013;

f) The IRB was terminated based on the above noted report as per the OCF-9, dated March 18, 2013;

g) The Insurer wrote an OCF-9, dated January 18, 2013, which continued to request IRB related documents under section 33 of the Schedule, which was previously requested in a December 19, 2012 letter;

h) On or about March 27, 2013, the Applicant’s current law firm was retained;

i) The Insurer wrote a letter, dated April 13, 2015, stating they are willing to consider reinstating IRBs if the Applicant can provide various medical documents, plus various financial documents including tax returns for the years 2012 to 2014;

j) An OCF-5 was sent April 30, 2015 to the Insurer to secure said medical documents;

k) On June 11, 2015, Notices of Assessments for the years of 2012 to 2014 only, were sent to the Insurer;

l) The Insurer did also receive 2009 – 2015 notice of assessments and T-4 slips for 2012, 2013 and 2015 only;

m) To date the Insurer has not received the Applicant’s income tax returns for 2011 to 2015;

n) Submissions of the parties show the Applicant has not been specific as to work duties prior to the accident nor to those duties she currently performs, or what she did during the interim 104 weeks.

Was the Applicant subject to a suspension of benefits as per section 32, 33 and 34 of the Schedule?

I recognize that the Insurer did request section 33 financial information on two occasions, once in December 2012 and again in January 2013, however the Insurer continued to calculate and pay an IRB until March 21, 2013, based on the information provided by the Applicant.

Clearly the Insurer did ask for the more financial and medical documents again in April 2015. It is equally clear that this letter has no bearing on the fact that the Insurer had already terminated the benefit based on an orthopedic assessment.

In examining the OCF-9, dated March 18, 2013, the notice of termination is clear and unambiguous that the section 44 orthopedic assessment combined with the OCF-3 convinced the adjuster to terminate the IRB based on her medical entitlement. This subject OCF-9 is completely void of any mention or request of section 32, 33 or 34 information requests, or that the IRB is suspended pending compliance with said sections of the Schedule.

It flows then that the Applicant would not have to:

a) Provide any further financial information of the Applicant’s income to the Insurer;

b) To pierce to corporate vail and provide further financial information of Team Staffing;

c) Provide the Insurer with the complete details of her employee file from Team Staffing, including her hours of work, return to work attempts and her actual full time return to work date;

d) Provide an explanation for the lateness or non-production of any requested financial documents.

The Insurer has terminated the IRB solely on the Insurer’s belief of the Applicant’s lack of physical limitations due to her injuries from this accident. This is fatal to the Insurer’s arguments.

What should the IRB quantum be?

For the period in which the IRB was paid, the Insurer correctly applied the mathematical formula contemplated by the Schedule, with the information provided at that time by the Applicant.

That being said, I understand that had the IRB continued to be paid or had been suspended under section 33 of the Schedule, more information would have been needed to properly calculate the benefit, as the first three points above suggest.

Therefore, I find that quantum of the IRB will have to be decided during or after the Hearing where the Applicant successfully challenges the Insurer’s stoppage based on her medical entitlement.

Conclusion

For the reasons above, I find and order that the Applicant’s Application for Arbitration may proceed to Arbitration.

EXPENSES:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an expense hearing before an arbitrator in accordance with the provisions of the Dispute Resolution Practice Code, once they have settled all other arbitration disputes between them.

October 17, 2016

Charles Matheson Arbitrator

Date

Financial Services Commission of Ontario