P.K. v. Pembridge Insurance Company, 2019 CanLII 101661

P.K. vs. Pembridge Insurance Company

Citation: P.K. vs. Pembridge Insurance Company, 2019 ONLAT 18-000865/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

P.K. Appellant(s)

and

Pembridge Insurance Company Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

Appearances: For the Appellant: Paul Barrafato, Counsel For the Respondent: Cary Schneider, Counsel

Heard: In Writing Hearing: May 10, 2019

OVERVIEW

1The applicant was involved in an automobile accident on August 28, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the ''Schedule''). The applicant applied for an income replacement benefit (IRB), which the respondent denied on the basis that he did not meet the test for entitlement. In response, the applicant commenced an application to the Licence Appeal Tribunal.

2The respondent requested this preliminary issue hearing to determine whether the applicant is entitled to an IRB. The respondent argues that the applicant does not satisfy the test for entitlement under s. 5 of the Schedule since he was not employed for at least 26 weeks during the 52 weeks before the accident or, alternatively, was not receiving benefits under the Employment Insurance Act at the time of the accident.

3The applicant disagrees and submits the he was employed for at least 26 of the 52 weeks prior to the accident and, thus, he can continue with his claim for an IRB. He argues that the determining factor to determine if he was employed at the time of the accident is based on the intention of the employer and employee.

ISSUE

4The following preliminary issue is set out in the case conference Order dated October 30, 2018:

i. Is the applicant entitled to receive income replacement benefits pursuant to s.5 of the Statutory Accident Benefits Schedule in the amount of $222.30 per week for the period August 31, 2015 to October 7, 2015?

RESULT

5For the following reasons, I find that the applicant was employed for 26 of the 52 weeks before the accident. The applicant is therefore entitled to continue with his application for an IRB.

THE LAW

6The respondent maintains, in order to receive an IRB, the applicant must establish that he was employed for at least 26 weeks during the 52 weeks before the accident or, alternatively, was receiving benefits under the Employment Insurance Act at the time of the accident to receive an IRB: see s. 5 of the Schedule. It maintains the applicant has not done so.

7Section 5(1) of the Schedule provides in part:

(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

1. The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or

ii. was not employed at the time of the accident but,

A. was employed for at least 26 weeks during the 52 weeks before the accident or receiving benefits under the Employment Insurance Act at the time of the accident.

8The applicant argues that the determining factor to determine if he was employed at the time of the accident is the intention of the employer and employee. In support of that position, he refers to the case of Madore and Co-operators,¹ in which Arbitrator Macintosh noted that the state of being employed depends as much upon the intention of the employer and employee and the expectations between them, as upon the payment of salary in return for specified work. As Arbitrator Macintosh noted:

In my view, individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence. I consider that the state of being employed depends as much upon the intentions of the employer and the employee and the expectations between them, as upon the payment of salary in return for specified work.

9The respondent argues that several factors are to be considered to determine the employment status. The respondent relies on the following arguments:

a. Before the accident, the applicant was a full-time employee working 40 hours a week and earning a set hourly wage for a total of 20 weeks. The applicant ceased working on February 18, 2015 due to health reasons and did not return to work or try to return to work at any time prior to the motor vehicle accident of August 25, 2015. His pattern of work was interrupted and he ceased working altogether. There was no evidence that the applicant’s employment was occasional and ongoing.

b. The applicant had only worked for this employer for a total of 20 weeks. There is no evidence to show a long-standing relationship with this employer. The sick notes from his medical doctor indicated that he could not work and gave no timelines about a return to work.

c. The employer issued a ROE that indicated that the applicant ceased working due to illness, which severed the relationship with the applicant. The applicant has not introduced any evidence from the employer to establish that the applicant was still considered to be an employee of the company.

d. As per the email exchange² between the legal representative of the applicant and the employer, the applicant did not contact his former employer about returning to work.

10As set out below, I find the evidence establishes that the applicant was employed for at least 26 weeks during the 52 weeks before the accident and, as such, his employment status allows him to continue with his IRB claim. The issue of entitlement will be determined at a hearing to address the issue.

ANALYSIS AND DECISION

11The applicant started work with the employer on October 6, 2014. On February 18, 2015, due to a medical issue, he went on sick leave, initially for five days. As he could not return to work, several additional sick notes were sent from his family doctor to his employer between February 18, 2015 to March 6, 2015 indicating he could not return to work.³ The notes indicated that he continued to be medically assessed and was unable to return to his employment given his medical condition.

12On March 3, 2015, the employer issued a Record of Employment⁴ (ROE) indicating that the applicant was on leave for illness or injury and stated that the applicant’s expected date of recall was March 21, 2015, approximately 24 weeks from when the applicant started work to the date of the accident.

13On March 3, 2015, the applicant applied for Employment Insurance (EI) Sickness benefits.⁵ The EI application indicated that the applicant was off work as of February 18, 2015, and that his return date was unknown. He stated that he intended to return to work.⁶ He also stated he had worked for less than 22 weeks and, when asked if there were any injuries due to a motor vehicle accident, he answered no.⁷ The applicant received EI Sickness benefits until June 20, 2015, when the EI benefits expired. At that time, the applicant had not returned to work.

14On August 8, 2015, the applicant’s family doctor stated in a sick note provided to the employer that the applicant could not return to work because of health reasons and was undergoing an investigation of his medical condition.

15On August 21, 2015, the employer completed an Employer’s Confirmation (OCF-2),⁸ indicating that the applicant earned $11,560.00 of gross income. The period of employment was stated as 20 weeks. The OCF-2 also indicated that the applicant was absent from work as he was on sick leave from February 18, 2015 and still off work on medical leave. The OCF-2 also stated that the last day worked was February 18, 2015, and that the applicant was not able to return to work.

16The applicant maintains that his employment was not terminated after his EI benefits expired. He submitted his application (OCF-1)⁹ to the Tribunal seeking an IRB on basis that he was employed and working at the time of the accident.

17On December 14, 2016, the respondent advised the applicant that it had learned from a review of the Service Canada documents that the applicant’s EI application was amended on January 6, 2016 to indicate that he is not entitled to EI benefits for the period from February 22, 2015, to June 20, 2015, and any payments made for this period were considered an overpayment. The respondent stated that this is due to eligibility requirements and the applicant only submitting documentation to support a qualifying period from Oct. 6, 2014 to Feb.2, 2015 (less than 20 weeks).

18On January 16, 2016, the applicant forwarded documents to the respondent, including the family doctor’s sick note dated 2015/12/11 (it is not clear if the date is December 11 or November 12), indicating the applicant could not work after August 25, 2015 due to a car accident in August 2015.¹⁰

19Based on the totality of the evidence and reasons set out below, I find that the applicant was employed for 26 weeks at the time of the accident.

20I do not accept the respondent’s argument that the ROE terminated the employment relationship. The record of employment confirms the last day worked. An employer is required by law to issue a ROE when an employee has stopped working. In this matter, the last day worked was February 18, 2015. The ROE indicated a recall date of March 21, 2015.

21Although the applicant applied for EI, the EI application was amended on January 6, 2016 to indicate that the applicant was not entitled to EI benefits for the period from February 22, 2015, to June 20, 2015. As such, the EI was paid in error. The applicant was not on EI at the time of the accident. As such the applicant was not receiving benefits under the Employment Insurance Act at the time of the accident. In his application the applicant indicated his intention to return to work.

22Further, the Employer’s Confirmation (OCF-2) indicated that the applicant’s period of employment was only 20 weeks. However, the OCF-2 also stated the applicant was absent from work as he was on sick leave from February 18, 2015 and still off work on medical leave. The ROE establishes that at least until March 21, 2015 the employer intended to recall the applicant to work. Moreover, the sick notes from the family doctor up to and including August 2015 indicate that the applicant expected to return to work once his period of illness ended.

23As stated by Arbitrator Macintosh in the Madore decision which applies to this appeal an individual may retain their status as employees during periods when they are not performing work or earning income due to illness.

24Taken collectively, the ROE, the OCF-2, the EI application, and the sick notes in the record before me indicate that the employment relationship continued during the period of illness. The applicant did contact his employer about a return to work although he provided no timelines about returning to work. However, the parties exchanged emails on June 15, and 25, 2018¹¹ relating to the applicant’s employment status, which confirms that the employer was waiting for the applicant to advise it when he was able to return to work. The applicant was to contact the employer to advise when he was returning but he never did. I find that by March 21, 2015 and through to August 2015, the employment relationship continued.

CONCLUSION

25For the reasons stated above, I find the applicant was employed in the 26 of the 52 weeks prior to his accident meeting the requirements of s. 5 of the Schedule. He is thus entitled to continue with his application for an IRB.

Released: September 30, 2019

Thérèse Reilly Adjudicator

Footnotes

1. 1Madore and Co-operators (FSCO A-004305, August 24, 1994), Tab 19, written submissions of the applicant.
2. 2Emails between the applicant’s legal representative and the employer confirming employment status dated May 2018 to June 15, 2018, tab 20, written submissions of the applicant.
3. 3Sick notes from the family doctor, tabs 4 and 6, written submissions of the applicant.
4. 4Record of Employment dated March 3, 2015, tab 7, written submissions of the applicant.
5. 5Application for EI sick benefits dated March 3, 2015, Tab 16, written submissions of the applicant.
6. 6Application, for EI, footnote 3, page 7 of 15.
7. 7Application for EI benefits, footnote 3, page 13 of 15.
8. 8Confirmation of Employment (OCF-2) dated August 21, 2105, tab 11, written submissions of the applicant.
9. 9Application for benefits, OCF-1, dated September 9, 2015, tab 10, written submissions of the applicant.
10. 10Sick note from the family doctor to the employer, tab 14, written submissions of the applicant.
11. 11Emails between the applicant’s legal representative and the employer, dated May 2018 to June 15, 2018, tab 20, written submissions of the applicant.