[The Applicant] v. Coachman Insurance Company, 2019 CanLII 34601

Licence Appeal Tribunal - Automobile Accident Benefits Service

Tribunal File Number: 17-002366/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:

[The Applicant]

Applicant

and

Coachman Insurance Company

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: [The Applicant] Patrick Snelling, Counsel

For the Respondent: Jason H. Goodman, Counsel

Observer: Aggrey Msosa, Member

Court Reporter: Tyler Keeley

HEARD in person on: February 12 to 15, 2018 in Ottawa By teleconference on: November 22, 2018

I. OVERVIEW

1The applicant was involved in an automobile accident on February 17, 2016. He sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was paid income replacement benefits (“IRBs”) by the respondent from February 24, 2016 to April 20, 2016. The respondent has not paid IRBs since, because it claimed the applicant failed to provide it with income information it had requested and that he failed to submit to an examination under oath when he refused to answer questions. The respondent also claimed that as of March 24, 2017, the applicant no longer meets the test for entitlement to IRBs. The applicant claimed he is entitled to IRBs, he attended at his examination under oath, he has provided all the income information the respondent requires and he has a reasonable excuse for providing the income information so late. He also claimed that he is entitled to payment for the cost of examinations that the respondent has denied. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant claimed that he has been unable to return to his pre-accident occupation as a web designer because he is unable to focus and concentrate due to headaches he has been experiencing as a result of his accident injuries. The respondent claimed the applicant has been working and relies on video surveillance that showed the applicant spends, what appears to be, regular business hours at a marketing company. The applicant denied that he is working and claims he attends at the marketing company for something to do.

3The parties participated in a case conference but were unable to resolve the issues in dispute.

II. ISSUES IN DISPUTE

4The issues that I must determine are as follows:¹

a. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week from March 24, 2017 to date?

b. Does the respondent have to pay IRBs for the period from April 20, 2016 to date, that were withheld by the respondent because the applicant failed to provide information reasonably required by the respondent to adjust the applicant’s claim or to answer questions at his EUO?

c. Is the applicant liable to repay the respondent $3,256.00 IRBs paid between February 24, 2016 and April 20, 2016 because the applicant made a material misrepresentation?

d. Is the applicant entitled to receive payment for cost of examinations in the amount of $3,346.49 for a neuropsychological assessment and a psychometric assessment recommended by Dr. Angela Stewart in a treatment plan dated October 21, 2016, denied by the respondent on March 24, 2017?²

e. Is the applicant entitled to interest on any overdue payment of benefits?

f. Is the respondent liable to pay an award under s.10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

5The parties agree that the only test I am to apply for entitlement to IRBs is whether the applicant suffers a substantial inability to engage in the essential tasks of his employment or self-employment at the time of the accident. Accordingly, at the agreement of the parties, I am not determining whether the applicant meets the test for post-104 week benefits.

III. RESULT

6I find that from March 24, 2017 to date, the applicant meets the test for entitlement to benefits on the basis he has a substantial inability to engage in the essential tasks of his pre-accident employment and self-employment. He is entitled to IRBs of $400.00 per week minus 70% of the gross post-accident income he has earned.

7The respondent is liable to pay the applicant IRBs from April 20, 2016 to June 15, 2016. The respondent is entitled to withhold IRBs from June 15, 2016 to date because the applicant failed, without reasonable explanation, to provide information requested by the respondent that was reasonably required to adjust the applicant’s claim and has failed to submit to an EUO. The parties advised that after the in-person hearing, the applicant provided the respondent with the remaining outstanding income information requested, his bank statements. Once the applicant submits to an EUO, the respondent is required to resume payment of the IRB and pay the IRB that was withheld.

8The applicant is not required to repay the respondent the IRBs claimed on the basis of a material misrepresentation.

9Dr. Stewart’s treatment plan dated October 21, 2016 for a neuropsychological assessment in the amount of $2,000.00 and psychometric testing in the amount of $1,346.49 is reasonable and necessary.

10The applicant is entitled to interest on the IRBs payable from April 20, 2016 to June 15, 2016.

11The applicant is not entitled to an award under s.10 of Ontario Regulation 664.

IV. ANALYSIS

A. Entitlement to IRBs

12In order to claim entitlement to an IRB, s.5(1) of the Schedule requires the applicant to prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident and within 104 weeks of the accident, he sustained a substantial inability to engage in the essential tasks of that employment.

13The applicant testified that he was employed part-time as a web designer for FL at the time of the accident. He was also self-employed as a web designer for his own business, which he started in 2006.³ The applicant testified about the essential tasks of his occupation as a web designer and I accept his testimony for two reasons. It was unchallenged and it was supported by the testimony of his employer, A.G.⁴ A.G. testified that his company, FL, hired the applicant as a contract employee in November 2015, paying him $50.00 per hour to code software. A.G. did not know the applicant before hiring him. A.G. testified that he looked for someone with the applicant’s coding skills for 3 months before finding the applicant.⁵ The applicant was required to work a minimum of three days per week. The applicant’s job was to solve and improve what users see on the company’s interactive website. His job required a great deal of focus.

14The applicant relies on the testimony of his friend TC, the owner of GZP, a marketing or branding company. TC testified that before the accident, he retained the applicant to develop some websites for his clients. The applicant was not an employee of GZP, but an independent contractor who TC invoiced and paid by cheque. The applicant testified that at the time of the accident, his company, WC, was building websites for clients and that his main client was GZP. Based on the evidence and testimony of the applicant and of TC, I find that the applicant was both employed and self-employed in the four weeks prior to the accident.

15I find that as a web designer, the applicant was required to write or “code” computer programs. Code means a series of statement functions and loops and is very precise in how it is constructed. A program requires over 1,000 lines of code. The applicant’s work also required him to locate bugs in the code. He worked about 20 hours per week at his self-employment. The essential tasks of the applicant’s employment and self-employment included sitting in front of a computer for at least 40 hours per week and sometimes for longer than nine hours in a day, focussing on the lines of code and writing code.

16The transcript from the applicant’s EUO taken on June 26, 2017 was filed as an exhibit.⁶ At his EUO, the applicant stated that he may have lost consciousness in the accident. He was not too sure if he suffered any injury in the accident at the time, although he felt groggy. After the accident he left the scene in a tow truck, obtained a rental vehicle, drove home and about three hours after the accident, he walked to the Queensway-Carlton Hospital.⁷ At the hospital he complained of headache more so on the left, neck pain and mid to low back pain. He testified at the hearing that his neck and back pain have resolved, although his back pain flares every now and then. His headache has improved a little bit, but is always there. It is aggravated by intense mental concentration and intense physical activity.

17A.G. testified that when he learned of the applicant’s accident, he told the applicant to take a day or two off work. The applicant returned to work a couple of days later, but after two hours, A.G. told the applicant to go home because when asked, the applicant complained of a headache and that he could not focus. A.G. testified that the applicant was not the type of person to complain. The applicant did not return to work and in November 2016, a Record of Employment was issued, terminating the applicant’s employment. The applicant testified that he has not returned to work since the accident. He has tried to code on a number of occasions, but has been unable to code for any length of time because of his headaches and his inability to focus.

18The respondent submits that the video surveillance shows that the applicant was not honest with the assessors and, therefore, he was not honest about his ability to work. The video surveillance showed the applicant was working out in a gym lifting weights about three times per week in October and November 2016. The applicant told Dr. Mitchell Fox, a physiatrist who conducted an insurer’s examination (“IE”) at the respondent’s request in July 2016, that he had gone to the gym four to six times and had started lifting light weights. I do not find that the surveillance is contrary to what he told Dr. Fox three months earlier. He told Dr. Darren Schmidt, a neuropsychologist who conducted an IE of the applicant in February 2017, that his usual day involved mostly staying at home except for attending appointments and the occasional short walk. He told Dr. Angela Stewart, a neuropsychologist who conducted an assessment under s.25 of the Schedule on July 26, 2017, that he only recently started going to the gym once per week. However, the applicant testified that before the accident, he attended at the gym every day and after the accident, he attended only three days per week. He testified that he continued to go to the gym and only stopped going a few months before the hearing, but had recently started back. The applicant’s testimony is also contrary to his EUO statement he was not doing any exercise on his own other than light walks, stretches at home and a swim once in a while.⁸ The applicant was not asked about these apparent contradictory statements and I am, therefore, unable to attach much weight to them without knowing whether there was any explanation for them.

19At his EUO, the applicant stated that he has pain on the right side of his neck, especially when he tries to turn his head and sometimes from sitting down too long. It prevents him from leaning over a counter and from sitting for long periods. It does not prevent him from driving a vehicle.⁹ The neck pain had improved about 30%. The surveillance showed the applicant turning his head to the right a number of times and sitting in a car for almost two hours with one short break¹⁰. The applicant also stated at his EUO that his back pain is accompanied by spasms. It has improved a little by June 2017, but it prevented him from lifting things, standing over a counter and sitting in a chair for too long.¹¹ The surveillance videos from October and November 2016 show the applicant bending at the waist to pick up weights at the gym, which is contrary to his EUO. These various inconsistencies considered as a whole affect the overall credibility of the applicant. However, the applicant was not asked about this apparent inconsistent statement and I am, therefore, unable to attach much weight to it without knowing whether there was any explanation for it.

20At his EUO, the applicant stated that, other than his appointments, typically in a day he would hang out with friends, stay in his room, and if he socialized, it was at his home or he would get picked up and go to a friend’s house or go for lunch.¹² He told Dr. Stewart he would go out less than one day per week. The surveillance taken from October 15 to 19, 2016 and from November 7 to 13, 2016 showed the applicant was out every day and was at the offices of GZP every week day for roughly at least nine hours per day. The applicant testified that he attended at the GZP office in order to socialize. Although he met with TC and his clients and helped some of the younger coders with their questions, he testified that he was not paid.¹³ When Dr. Stewart assessed the applicant, it was almost a year later on July 25, 2017. The applicant testified that when he saw Dr. Stewart, he was no longer going to GZP. Surveillance taken around that period of time on August 21, 22, 26, and 27, 2017 and on September 12, 16, and 17, 2017 only showed the applicant was out on two days of the seven and is not inconsistent with what he told Dr. Stewart. However, that still does not explain his apparent inconsistent evidence at his EUO. He was not asked about his apparent contradictory statement given at his EUO about his level of activity and, accordingly, I am unable to attach much weight to it.

21The respondent relied on the IE reports of Dr. Fox, Dr. Schmidt, a neuropsychologist, and Dr. Tilak Mendis, a neurologist, to deny the applicant was entitled to IRBs after March 24, 2017.¹⁴ The respondent relies on Dr. Schmidt’s testimony and reports as support that the applicant is exaggerating his cognitive complaints. The respondent submits that the applicant’s reports at his EUO and to various assessors about his daily activities, his ability to work at a computer screen, his ability to focus and concentrate on his work, the effect of the pain from his headaches and the aggravating factors of physical exercise and working on a computer screen are contradicted by the surveillance videos of the applicant, photos of him apparently working at GZP¹⁵ and the invalid neuropsychological test results from Dr. Schmidt’s assessment of the applicant.

22Dr. Schmidt conducted an IE assessment of the applicant on February 24, 2017. Dr. Schmidt administered tests to the applicant that indicate whether he gave a valid effort on the tests. Based on those test results, Dr. Schmidt reported and testified that the applicant was quite likely attempting to be viewed as more impaired than he actually was. Dr. Schmidt testified that he stopped the testing after two and a half hours because he expected any further neuropsychological test results to also be invalid. Dr. Schmidt admitted on cross-examination that headaches and the use of Amitriptyline may affect validity scores. However, they did not do so in the applicant’s case, because there was no indication that the applicant had a headache or any complaints from the Amitriptyline during the assessment.

23The applicant asks that I give little weight to Dr. Schmidt’s evidence. The applicant relies on the testimony and reports of Dr. Stewart. She was provided with a copy of Dr. Schmidt’s raw test data from his assessment of the applicant. Dr. Stewart was critical of the type of tests administered by Dr. Schmidt, although she admitted she was not very familiar with one of the tests. She thought that Dr. Schmidt should have administered more tests, rather than shutting down the assessment at the time that he did. She also claimed that a mild traumatic brain injury can affect the validity of the tests. Dr. Schmidt completely disagreed because on one of the tests, people with traumatic brain injuries have been found to do better than people who do not have traumatic brain injuries. I do not give much weight to Dr. Stewart’s critique of Dr. Schmidt for the following reasons.

24A July 23, 2013 note from the Appletree Medical Group Clinic (the “Appletree Clinic”) stated the applicant had anxiety for over 10 years.¹⁶ Another note dated May 1, 2013 diagnosed the applicant with a concussion after striking his head on a kitchen counter and for which he was to take two days off of work. Neither incident was mentioned in Dr. Stewart’s reports. She wrote that the applicant reported that he did not have any pre-accident health issues. The applicant testified that he did not have anxiety or other psychological problems prior to the accident. When cross-examined on the medical notes from the Appletree Clinic, he explained that he was referring to social anxiety, which was different from being diagnosed with anxiety and he did not think it was relevant. He did not disclose the 2013 concussion because he could not remember it. While I accept the applicant’s explanation, I am unable to give Dr. Stewart’s criticism of Dr. Schmidt’s testing much weight.

25Dr. Stewart testified that the she reviewed the clinical note about the anxiety, but did not mention it in her report because she did not think it was relevant. She did not think it was relevant because symptoms of anxiety are not the same as a diagnosis of anxiety. She testified that the applicant’s concussion in 2013 may be relevant. However, she later testified that the applicant’s pre-accident medical history was not relevant in this case because the applicant was doing very well prior to the car accident. She also testified that it is important to report inconsistencies between a person’s documented medical history and what the person tells her. However, she did not mention the applicant’s inconsistencies in her report, although she was aware of them, because she was only doing a psychological assessment, not a neuropsychological assessment. Although she was aware that the applicant was diagnosed with Grave’s disease, which can cause fatigue and was one of the applicant’s complaints, she did not report it. Dr. Stewart was told by the applicant that he goes out to socialize less than once per week. When asked about this at the hearing, he testified that by the time he saw Dr. Stewart on July 25, 2017, he had stopped going out to GZP to socialize because of the ramifications his attendance there would have on his claim for accident benefits. When asked whether the surveillance showing the applicant’s daily attendance at GZP was consistent with going out once per week, Dr. Stewart stated she did not know, that she would need to speak to the applicant. I find her answer was evasive. She acknowledged the information was important. The reasons she gave for leaving out important information from her report seemed to be self-serving and biased and therefore reduces the weight that I give to her criticism of Dr. Schmidt. Further, she also found that the applicant likely exaggerated his symptoms on the test she administered him, which supports Dr. Schmidt’s findings.

26I find that based on both Dr. Schmidt’s and Dr. Stewart’s reports, the applicant was likely exaggerating his cognitive and psychological complaints. That does not mean I reject Dr. Stewart’s diagnosis of the applicant. This is because, although there was some exaggeration of the applicant’s complaints on the testing, Dr. Stewart took that into account when she diagnosed the applicant with Depressive Disorder, Moderate, with anxious distress, Somatic Symptom Disorder, Persistent, Other Specified Trauma-and Stressor-Related Disorder. Dr. Stewart’s opinion was that the applicant’s psychological impairments impact his ability to perform the essential tasks of his occupation. She testified that a person can still have distress while over reporting. Regardless of whether that is the case or the applicant was exaggerating his psychological or cognitive symptoms, I find that other impairments consisting of post-traumatic headaches, concussion headaches and ocular motor dysfunction substantially affect the applicant’s ability to work on a computer for extended periods for the reasons set out below.

27The medical records and Dr. Mendis are consistent in finding the applicant sustained a concussion in the accident¹⁷. Dr. Schmidt, however, testified that he disagreed with the diagnosis of concussion or mild traumatic brain injury because Dr. Mendis made his diagnosis without reviewing a CT scan or MRI scan. Dr. Mendis reported on March 10, 2017 that at his November 29, 2016 assessment,¹⁸ the applicant’s symptoms included post-traumatic headaches and he showed evidence of an ocular motor dysfunction.¹⁹ I have no reason to doubt Dr. Mendis’ diagnosis. Especially since Dr. Schmidt testified that he was not qualified to comment on the applicant’s headaches and that he was unaware that the applicant was prescribed Amitriptyline for his headaches. Dr. Schmidt also testified that he was not qualified to talk about ocular motor dysfunction, but that it could have something to do with a head injury and could affect the applicant’s vision. Further, the applicant displayed a slow response on the only test that he administered that is conducted on a computer, which is keeping with the applicant’s complaints of being unable to work on a computer for a sustained period.

28The applicant asks that I give little weight to Dr. Mendis’ opinion that the applicant does not have a neurological impairment that causes a substantial inability for the applicant to engage in the essential tasks of his pre-accident occupation. I agree with the applicant for the following reasons. I accept Dr. Mendis’ findings on his examinations of the applicant because Dr. Mendis’ findings were not challenged and, in fact, were relied on by the applicant. However, his conclusion about whether the applicant meets the test for IRBs in his March 10, 2017 report does not make sense. Dr. Mendis reported in his March 10, 2017 report that, based on his November 29, 2016 assessment, the applicant did not have a neurological impairment that affected his ability to work. However, he reported that the applicant’s symptoms at that time included post-traumatic headaches and he showed evidence of an ocular motor dysfunction. Dr. Mendis also reported that the applicant’s headaches impact upon his functioning at work, but opined that this was not a substantial impairment.²⁰ He reached the opposite conclusion in July 2016 based on examination findings that were not much different from his examination in November 2016, except there were no signs of ocular motor dysfunction in July 2016, but he exhibited photophobia.²¹ Dr. Mendis provided no explanation for why the applicant’s headaches affect his function, but why they were not a substantial impairment. He did not comment on the affect the applicant’s ocular motor dysfunction combined with his headaches has on his ability to work on a computer for 7 to 9 hours per day.

29I also give little weight to Dr. Mendis’ March 10, 2017 opinion about the applicant not having a substantial impairment because an impairment may not be substantial, but it may still cause a person to suffer a substantial inability to engage in an essential task of the person’s employment. Further, I question Dr. Mendis’ opinion given that in his March 2017 report, he recommended that a neuropsychological assessment be conducted and did not comment on Dr. Schmidt’s report, even though Dr. Schmidt’s report was listed as one of the reports Dr. Mendis reviewed. Yet, Dr. Mendis later commented on Dr. Schmidt’s report in his paper review report dated August 30, 2017.²²

30The respondent relies on the OCF-3 disability certificate of the applicant’s treating chiropractor, Dr. Tatyana. Lachovich, chiropractor, dated March 1, 2016, where she marked that the applicant was not substantially unable to perform the essential tasks of his pre-accident occupation. However, she also marked that the applicant could not return to work on modified hours or duties and explained that it was because his concussion causes dizziness and he has mid-back pain from standing too long.²³ This explanation would not be necessary if Dr. Lachovich thought the applicant could return to work. Dr. Lachovich stated on the OCF-3 that, among other diagnosis, the applicant sustained a concussion. A chiropractor is not qualified to provide an opinion on concussion and its effect on functional ability. For these reasons, I give little weight to Dr. Lachovich’s opinion on the applicant’s ability or inability to work.

31The applicant was referred to a neurologist, Dr. Lucien Sitwell, by his family doctor. He testified that the last time he saw Dr. Sitwell, which was in 2017, he was advised to increase the dosage of his Amitriptyline and if it did not work, he was to see Dr. Sitwell again. The Amitriptyline was prescribed to address the applicant’s headaches. The applicant has not seen Dr. Sitwell again. The applicant did not provide any explanation for why he has not seen Dr. Sitwell and, therefore, I draw an inference that it is because the Amitriptyline provides some relief. This is supported by the applicant’s testimony that his headaches have undergone some improvement, and by the reduction in the headache pain levels the applicant reported to Dr. Stewart in July 2017 compared to the pain levels he reported in 2016.²⁴

32Although I find the applicant’s headaches have undergone some improvement and that he has exaggerated his psychological and cognitive complaints, this does not discount the findings of ocular motor dysfunction or mean that the applicant does not still have headaches that affect his ability to work at a computer for extended periods of time. His testimony about his ability to work on a computer for no more than an hour is supported by the objective findings of ocular motor dysfunction and the evidence that it affects vision. It is also supported by Dr. Mendis’ diagnosis of post-traumatic headaches secondary to whiplash. Although the applicant may be able to engage in work other than coding, that does not mean that he is not entitled to IRBs. The Schedule places an obligation on an applicant to return to work and allows an insurer to adjust an IRB to deduct post-accident income from the IRB.²⁵ Just because a person returns to work at modified hours or modified tasks does not mean the person no longer suffers a substantial inability to engage in the essential tasks of his occupation. For these reasons, I find that the applicant sustained a substantial inability to engage in the essential tasks of his employment and self-employment as a web designer.

33Although the applicant cannot do his job as a coder, he has been able to do other types of work by assisting TC at GZP. However, I am unable to make a determination of the quantum or amount of IRBs because I do not have enough information to determine whether the applicant has received or will receive any remuneration from the work he has done at GZP. Until the applicant produces the bank records requested by H&A, it is premature to determine whether the applicant has earned post-accident income that is deductible from his IRB for the following reasons.²⁶ The respondent’s surveillance, substantiated by both the applicant’s and TC’s testimony, shows the applicant has worked since the accident for TC. The respondent has the onus of proving that the applicant has earned income since the accident. TC testified that the applicant has not worked for him since the accident, but he also stated that when the applicant attended at GZP, he assisted TC with proposals, he met with TC and his clients to assist in presenting proposals, assisted TC with ideas for applications and platforms and helped the younger coders. TC testified that his business is conducted in cash. However, he also testified that he wrote the applicant a cheque dated after the accident for work the applicant performed before the accident. His evidence that he did not have an invoice for the work, nor did he invoice his client for the applicant’s work, is inconsistent with his statement that the applicant would submit invoices for his work and that TC was billed for work before the accident. TC testified that he had an agreement with the applicant that the applicant would come to GZP and help out, but would not code. TC did not provide details of the agreement, other than it was informal and he was working towards a business that would pay all of the three to four contractors, including the applicant, who comprise TC’s team at GZP. His aim was for all of them, including him, to be employees of GZP. TC’s testimony, therefore, raises questions about whether he has promised to pay the applicant for his non-coding work at some point in the future. For these reasons, I find that the applicant has been able to do some work for TC and he may have been paid or will be paid in some form for that work. If he has been paid, it is post-accident income that should be deducted from the IRBs. The respondent asked that I make an adverse inference that the applicant has earned post-accident income because he has failed to produce his bank records from the bank in which he deposited his income earnings from February 2015. He did produce the bank records some time after the in-person portion of the hearing but it was not evidence before me. I am not prepared to draw an adverse inference given that the respondent now has some of the means of determining if the applicant was, in-fact, earning post-accident income.

B. Failure to Provide Income Information and Submit to an EUO

34Section 33.(1)1 of the Schedule states that an applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. Under s. 33(2) of the Schedule, an applicant is required to submit to an EUO. Under s.33(6) of the Schedule, an insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with section s.33(1) or s.33(2) of the Schedule. Once the applicant complies with the request for information or submits to an EUO, under s.33(8) of the Schedule, the insurer is required to resume payment of the benefit and to pay up those benefits that were withheld during the period of non-compliance if the applicant has a reasonable explanation for his non-compliance.

35The respondent claimed that it made a number of requests for income information from the applicant in order to properly quantify his IRBs and that he failed to provide the information in accordance with the Schedule. The respondent claimed that it initially paid the applicant an IRB without the income information on a good faith basis,²⁷ pending receipt of the information. When the income information was not forthcoming, the respondent claims it was entitled to stop paying IRBs to the applicant in accordance with s.33(6) of the Schedule. The respondent also claims that the applicant’s refusal to answer questions at his EUO about the surveillance of him attending at GZP is essentially a refusal to undergo the EUO, which also entitles to the respondent to not pay IRBs under s.33(6) of the Schedule.

36Therefore, I must determine the following:

i. Did the applicant fail to provide income information reasonably required to adjust the claim and if so, does he have a reasonable excuse for his failure?

ii. Was the applicant’s refusal to answer questions at his EUO a failure to submit to an EUO and if so, does the applicant have a reasonable excuse for doing so?

iii. Is the respondent liable to pay IRBs?

i. Information Requested by the Respondent to Adjust the Claim

37The applicant was both self-employed and employed at the time of the accident. Therefore, under s.4(2)2(i) of the Schedule, his IRBs are calculated on his gross income for the 52 weeks before the accident or on his last fiscal year.²⁸ Under s.4(5) of the Schedule, the applicant’s income declared on his tax return is required to be used to calculate his IRBs without regard for any income or expenses he did not declare. Because he had been self-employed for longer than one year, the applicant could choose to have his IRB based on his gross employment income for the last fiscal year that ended before the accident.²⁹ Although the applicant’s tax return contained information, the Notice of Assessment is the confirmation by the Canadian Government of the amounts actually filed by a person.

38As of April 14, 2016, the applicant was aware that the respondent was retaining an accountant, H&A Forensic Accounting (“H&A”) to calculate his IRB.³⁰ H&A wrote to the applicant’s lawyer’s office on April 18, 2016 requesting the following:

i. income documents and information including a copy of the applicant’s 2015 tax return and the schedules attached;

ii. the 2015 Notice of Assessment from Canada Revenue Agency; details of any Employment Insurance (“EI”) he received from January 2016 to date;

iii. a schedule detailing the applicant’s revenues and expenses from February 18, 2016 to date; and,

iv. a copy of the applicant’s bank statements for the bank where he deposited his income cheques from February 1, 2015 to date.³¹

39The applicant received a letter from the respondent dated June 1, 2016, asking him to provide the information requested in H&A’s April 18, 2016 letter in order that H&A may calculate his IRB. The applicant was also advised that the information was requested under s.33 of the Schedule and that if the information was not provided within 10 business days of the applicant’s receipt of the letter, no benefits may be paid until the information was provided.³² I find the applicant was provided with an explanation of s.33(6) and (8) of the Schedule and he, therefore, knew by June 1, 2016 that the respondent required income information and that failure to provide the information by June 15, 2016 may result in his benefits not being paid.³³

40I find the documents requested by the respondent and listed by H&A were reasonably required to adjust the applicant’s claim for IRBs in order for H&A to calculate the applicant’s IRBs. The respondent and H&A were provided with the applicant’s 2015 tax return and the attached schedules on June 10, 2016,³⁴ but were not provided with a copy of the applicant’s Notice of Assessment for 2015 until November 7, 2016,³⁵ despite the applicant having received his 2015 Notice of Assessment sometime shortly after June 20, 2016.³⁶ At the time of the in-person hearing, the applicant had not provided a copy of his bank records from February 2015. They were not in evidence before me.

41The applicant received Employment Insurance (“EI”) benefits after his contract with the Post Office terminated in March 2015. Under s.4(1) of the Schedule, “gross employment income” includes any benefits received under the Employment Insurance Act (Canada). This means that H&A needed to know how much EI benefits the applicant received in 2015 in order to calculate his IRBs.³⁷ The applicant reported the amount of EI benefits he received on his 2015 tax return. However, that amount was not confirmed until the respondent received the applicant’s 2015 Notice of Assessment dated June 20, 2016. The Canada Revenue Agency would have had a copy of the applicant’s T4E Statement of EI and Other Benefits for 2015 (“T4E”) in order to confirming the EI amount in the notice of assessment.³⁸ H&A and the respondent, therefore, knew by November 7, 2016, when they received the applicant’s 2015 Notice of Assessment, how much in EI benefits the applicant had received in 2015.

42At the hearing, no explanation was provided as to why the June 20, 2016 Notice of Assessment was provided so late.³⁹ The applicant submits he has a reasonable explanation. He submits that it was because of his accountant’s error, he had to refile his tax return. He relies on an email from his lawyer’s paralegal that explains that the applicant had sent all of his information to his accountant by email, but his accountant missed the email and did not prepare a tax return that included the applicant’s self–employment information.⁴⁰ Although I find this is a reasonable explanation for the late delivery of Notice of Re-assessment after the submitting the revised tax return with the applicant’s self-employment income information, I find that this is not a reasonable excuse for late production of the June 20, 2016 Notice of Assessment for the following reasons.

43The applicant’s paralegal advised the respondent on November 7, 2016 that the applicant had not yet received his notice of assessment for 2015. I find, based on the email correspondence and the tax returns, that the paralegal was referring to a notice of re-assessment for an adjustment the applicant had requested from Canada Revenue Agency on September 28, 2016 to his 2015 tax return. The applicant had filed a tax return that did not include his self-employment information and the June 20, 2016 Notice of Assessment was issued by Canada Revenue Agency as a result.⁴¹ The applicant then filed a request dated September 28, 2016 to Canada Revenue Agency to adjust his tax return (“T1 adjustment request”) to include his income from self-employment and his business expenses. I find the applicant made the adjustment request because H&A had asked on September 2, 2016, why the applicant had not declared any self-employment revenue or business expenses on his 2015 tax return.⁴²

44When the applicant advised on November 7, 2016 that there was a six month back log for notices of assessment, his representative provided a copy of the applicant’s 2015 notice of assessment that was issued on June 20, 2016. The Notice of Re-assessment from the T1 adjustment request was not issued by Canada Revenue Agency until May 18, 2017. I find that the explanation that the applicant’s accountant missed his email with his business income is a reasonable excuse for why the Notice of Re-assessment was so late. However, this does not mean that the Notice of Assessment dated June 20, 2016 should have been withheld from the respondent. The information from the June 20, 2016 Notice of Assessment would have allowed the respondent to calculate the applicant’s weekly IRBs. The IRB quantum could have then later been adjusted when H&A received the Notice of Re-assessment dated May 18, 2017. I was provided with no reasonable explanation for why the applicant did not provide the 2016 Notice of Assessment dated June 20, 2016 as soon as he received it as opposed to waiting more than 4 months.

45The applicant submits that the respondent was able to calculate the applicant’s IRB before November 7, 2016 and relies on the fact that H&A prepared a report with an estimate of the applicant’s IRBs dated October 21, 2016. I do not agree and find that the IRB calculated in H&A’s report was an estimate only based on the applicant’s T1 income tax return that he had filed. H&A was very clear in their report that they still required a 2015 notice of assessment.⁴³ I find that it was reasonable and necessary for the respondent to have the 2015 Notice of Assessment because it is confirmation that the copy of the applicant’s tax return that he provided to the respondent was the same as the one that he provided to the Canada Revenue Agency. The respondent did not receive it until November 7, 2016.

46I find that until the respondent received the applicant’s June 2016 Notice of Assessment on November 7, 2016, the respondent did not have enough information to confirm the applicant’s earnings in the 2015 fiscal year. Once H&A had confirmation of the EI benefits listed in the June 20, 2016 Notice of Assessment, H&A should have been able to calculate the applicant’s weekly IRB amount.⁴⁴ At that point, the only other information necessary for calculating how much IRB was owed were the details of the applicant’s post-accident revenues and expenses from employment and self-employment. ⁴⁵

47By November 4, 2016, the respondent had received the applicant’s declaration of post-accident income (OCF-13) dated November 1, 2016, stating that he did not earn any post-accident income.⁴⁶ The respondent, however, notified the applicant on November 4, 2016, that because of its investigations, it did not believe the applicant had not earned any post-accident income. The respondent requested the applicant provide another declaration of post-accident income (OCF-13).⁴⁷ I find that the respondent’s second request, along with H&A’s request for a schedule with the details of the revenues and expenses for the applicant’s self-employment from February 18, 2016 to date including copies of his bank statements, was reasonable and was required in order to confirm the applicant did not earn post-accident income for the following reasons.

48The applicant appeared to be working before and after November 1, 2016 as shown in the surveillance. This is contrary to the applicant’s declaration of post-accident income (OCF-13) dated November 1, 2016. In addition, TC testified that he issued cheques to the applicant in 2016 that were not produced.⁴⁸ TC did not have invoices to indicate whether the work was completed before the accident or after, and the applicant declared on his 2016 tax return that he earned T4 employment income and other income in 2016. Without the information requested, there was no way to confirm whether the income the applicant declared in 2016 was earned before or after the accident. I find that the respondent did not follow up on the second request for a declaration of post-accident income (OCF-13) because by February 7, 2017, the respondent was seeking to have the applicant undergo an EUO.⁴⁹

49Given that the applicant may have earned post-accident income, I find that another declaration of post-accident income (OCF-13) and the bank records were reasonably required in order to calculate the amount of IRB payable after deduction of the post-accident income. I was provided with no explanation why the applicant’s written confirmation of his post-accident income or lack thereof consisting of his bank records and another declaration of post-accident income (OCF-13) was not produced to the respondent within ten business days of the requests. Therefore, as of June 15, 2016, the respondent is entitled to withhold IRBs on the basis of the applicant’s failure to provide the required information.

ii. Failure to Submit to an EUO

50The respondent relies on the Financial Services Commission of Ontario (“FSCO”) appeal decision of State Farm Mutual Automobile Insurance Company and Williams as support that a refusal to answer questions at an EUO is a failure to submit to an EUO under s.33(2) of the Schedule.⁵⁰ The applicant has not raised any issues with the notice and scheduling of the EUO. The applicant submits that he attended at the EUO, but was not required to answer certain questions because the questions were unfair and an ambush. I am not bound by the FSCO decisions. However, I agree with the reasoning in State Farm v. Williams. The insured person is only required to attend at one EUO per accident.⁵¹ Therefore if an applicant refuses to answer questions that are relevant to his entitlement to accident benefits, the insurer has no recourse to request the applicant to re-attend.

51The respondent advised the applicant at his EUO that it had surveillance of the applicant that showed that he appeared to be working at GZP. The applicant refused to answer any questions about his attendance at GZP, even though he was provided with an opportunity to review the surveillance report at his EUO. The applicant’s lawyer reviewed the surveillance report, but the applicant did not and he refused to answer any questions about the activities it showed. The questions of whether the applicant was working are fundamentally relevant to the applicant’s entitlement to IRBs because the respondent is entitled to deduct 70% of any post-accident gross employment income from his IRBs. Not all questions asked at an EUO may be relevant or appropriate. If an applicant chooses not to answer those questions, then there may be other ways to address those refusals. However, when an applicant refuses to answer questions that are fundamental to the adjustment of the claim, as they were in this case, frustrates the purpose of the EUO. Therefore, I find that the applicant’s refusal to answer questions at his EUO about whether he was working at GZP and what he was doing there every day amounts to a failure to submit to an EUO.

52The applicant submits that he was following his lawyer’s advice not to answer any further questions and that a determination that he failed to submit to an EUO is a determination that he is not entitled to follow his lawyer’s advice and is essentially an interference with the applicant’s right to have legal representation at the EUO. The applicant relies on s.33(7)(b) of the Schedule that states that where there is a refusal to submit to an EUO, an insurer is not entitled to rely on the payment withholding provision in s.33(6) of the Schedule if the insurer interferes with an applicant’s right to have legal representation at the EUO. I find that whether the applicant refused to answer the questions on his own initiative or at the advice of his lawyer is an issue between him and his lawyer. There was nothing in the transcript that indicated the applicant was unable to seek the advice of his lawyer or that there was any interference in his lawyer’s ability to speak on behalf of the applicant by refusing, rightly or wrongly, to answer questions. For these reasons, I do not find that there was any interference with the applicant’s right to legal representation.

53The applicant submits he has a reasonable excuse for refusing to answer questions at his EUO about whether he was working and his attendance at GZP. He submits that the questions were unfair because he was ambushed. The respondent did not produce the surveillance to him before the EUO, even though the applicant had requested a complete copy of the accident benefit file before the EUO. The applicant claims that the failure to produce the surveillance before the EUO and then ask questions about it at the EUO was an ambush and that the respondent’s actions were not fair. He submits those are reasonable excuses for refusing to answer any questions about what he was doing at GZP.

54I do not find the applicant had a reasonable excuse for refusing to answer the questions about his activities at GZP at his EUO. The applicant did not point me to any section of the Schedule that addressed the issue. Ambush at an EUO is not listed as an unfair or deceptive practice under Ont. Reg. 7/00, Unfair or Deceptive Acts or Practices. The applicant relied by analogy on the Rules of Civil Procedure, which require, at a minimum, that the particulars of surveillance be disclosed before an examination for discovery if a party maintains privilege over the surveillance. The production and disclosure requirements in the Rules of Civil Procedure are distinguishable because they deal with the process once a matter is in litigation and factor in considerations, such as settlement and the cost of litigation.⁵² The EUO, on the other hand, was introduced into the Schedule in 2003 to assist the insurer in the investigation of the claim well before litigation is on the horizon. Concern about reducing insurance costs, fraud and abuse of the system was a significant factor in the legislative changes.⁵³ For these reasons, I am not convinced that the timing of the respondent’s disclosure of the surveillance of the applicant and its questions about the applicant’s attendance at GZD were reason for the applicant to refuse to answer the respondent’s question.

55The applicant submits that the respondent ought to have requested that he re-attend at a resumption of the EUO. I disagree. The obligation or duty is on the applicant to submit to the EUO. The obligation on the respondent is to schedule the EUO for a time and location convenient to the applicant and to comply with the notice provisions in the Schedule. Neither the timing, location nor notice of the EUO was in issue. Therefore the respondent satisfied its obligations. It was the duty of the applicant to answer the relevant questions. If the applicant changed his mind and was prepared to answer the questions, the only way the respondent would know that was if the applicant advised the respondent. I was provided with no evidence that the applicant notified the respondent that he was ready to submit to the remainder of the EUO. For these reasons, I find that the applicant does not have a reasonable excuse for his failure to submit to an EUO. As of June 26, 2017, the respondent was entitled to withhold the payment of IRBs on the basis of the applicant’s failure to submit to the EUO. However, given my determination, if the applicant notifies the respondent he is willing to submit to the remainder of the EUO and the respondent fails to schedule the completion of the EUO within a reasonable time after, the applicant may have a reasonable excuse for not submitting to the EUO.

iii. Is the Respondent Required to Pay IRBs

56I find that the applicant has failed to failed to submit to an EUO and to provide the respondent with information reasonably required to determine how much IRB is owed to the applicant as the applicant failed to provide a copy of his initial June 20, 2016 notice of assessment for 2015 until November 7, 2016, a copy of his bank records from February 1, 2015, schedules with the details of his revenues and expenses from February 18, 2016 to date and a further declaration of post-accident income. The applicant has not provided a reasonable excuse for his failure to produce the documents and information. ⁵⁴

Time Period	Basis for Insurer Withholding
June 15, 2016 to November 7, 2016:	Failure to produce the 2016 notice of Assessment
June 15, 2016 until produced	Failure to produce the bank records for the bank where he deposited his income cheques from February 1, 2015 to the date produced
November 4, 2016 until produced	Declaration of post-accident income (OCF-13)
June 23, 2017 to date and until he agrees to submit to the EUO	Failure to submit to an EUO

57Section 33(8) of the Schedule requires an insurer to resume paying the benefits and pay up what was not paid once an applicant complies with an information request if the applicant has a reasonable excuse for the delay. If an applicant does not have a reasonable excuse, then as a result of s.33(8), the applicant’s benefits could be forfeited for the period of time from 10 days after receipt of the notice requesting the information until the day the information is provided. I have determined that the applicant in this case failed to provide information and submit to an EUO without reasonable excuse. The respondent submitted that for these reasons, the applicant forfeited his IRBs. However, under s.37(4) of the Schedule, if an insurer determines that an applicant is not entitled or is no longer entitled to receive an IRB because the insurer is no longer required to pay the IRB under s.33(6), the insurer is required to advise the insured person of its determination and the medical and any other reasons for its determination.⁵⁵ Under s.54 of the Schedule, the insurer is required to provide the applicant with written notice when a benefit is refused, advising the applicant of his right to dispute the refusal. For the following reasons, I find that if the respondent expected to enforce s.33(6) and (8) of the Schedule as forfeiture provisions, it was required to give the applicant a stoppage notice under s.37(4).

58I find an insurer is required to notify an applicant under s.37(4) that the insurer is denying entitlement to an IRB because of s.33(6) of the Schedule in order to ensure the applicant is informed of the reason why the benefits are denied. The applicant then is in a position to either comply with the EUO, provide the information, provide the excuse or to dispute the stoppage of the benefits if an applicant disagrees with the reasons for stopping them. The consequence to an applicant who has no excuse for failing to provide information reasonably necessary to adjust the claim or for failing to submit to an EUO, is a complete forfeiture of benefits for the period of time of non-compliance, which is a harsh outcome. Further, an applicant may believe he has a reasonable excuse and, if there was no s.37(4) notice requirement, he would have no way of knowing that the insurer disagrees, thereby jeopardising his benefits. This is not in keeping with the consumer protection purpose of accident benefits.⁵⁶ I find that s.37(4) of the Schedule requires an insurer to send a notice of denial of the benefits in order that an insured person is well aware that the insurer is exercising the forfeiture provisions of s.33(6) and (8) for his or her non-compliance with the obligation to provide information without a reasonable excuse. Therefore, unless the respondent in this case provided the applicant with notice that the applicant was no longer entitled to IRBs because the applicant failed to provide the information requested or failed to submit to an EUO, the respondent is only entitled to withhold IRBs under s.33(6) until the applicant complies with his obligations to provide information under s.33 of the Schedule.

59The respondent conceded that it did not provide the required notice to the applicant denying that he was entitled to IRBs because of his failure to provide the information requested or to attend at the EUO until July 7, 2017.⁵⁷ The respondent submitted that it provided the applicant with a letter dated July 7, 2017 that he was no longer entitled to an IRB for failure to submit to the EUO. The respondent submitted that the letter complies with the notice requirements under s.37(4) of the Schedule. The respondent filed a copy of the letter at the continuation of the hearing on November 22, 2018. The applicant objected to the letter being filed as an exhibit for two reasons. The first is because it was not filed as an exhibit at the hearing and the second because the applicant claimed he did not receive the letter. I allowed the letter to be filed as an exhibit because I find that the respondent sent the letter to the applicant’s lawyer and that the failure to file it as an exhibit was an oversight by the respondent that was curable by filing it at the continuation of the hearing.

60The respondent submitted that the letter was sent by email to the applicant’s lawyer. Section 64 of the Schedule lists the various methods that an insurer may use to deliver notices. Those methods include facsimile transmission, personal delivery, mail, and by electronic means if the respondent or the respondent’s lawyer consents to delivery by electronic means. I find that applicant tacitly agreed to receiving notices from the respondent by email because the applicant’s counsel exchanged corresponded with the respondent on numerous occasions.

61The applicant filed an affidavit from his paralegal who swore that she received an email from the respondent’s claims adjuster on July 7, 2017, enclosing a two page document. She confirmed receipt of the two page document with the respondent on July 7, 2017. However, she swore in her affidavit that she received two emails that day and, when she more recently tried to open one of the documents, she was unable to do so. She did not provide any evidence that she was unable to open the document back on July 7, 2017. Nor did she explain how she was able to identify the letter as being two pages or why the respondent was not advised that the applicant could not open the document until November 2018. For these reasons, I find that it was reasonable for the respondent to assume that the applicant received its s.37(4) denial letter on July 7, 2017 for the applicant’s failure to submit to the EUO.

62I allowed the July 7, 2017 letter to be filed as an exhibit for two reasons. First, I accept the respondent’s submission that the failure to file it earlier in the hearing was a due to inadvertence. Second, Rule 9.1 of the Tribunal’s applicable Rules of Practice and Procedure provides that the Tribunal may request additional particulars or documentation from a party “at any stage in a proceeding” as it considers “necessary for a full and satisfactory understanding of the issues in the proceeding.⁵⁸ This includes filing exhibits after parties have closed their cases if the exhibit, as in this case, assists in determining the issue.

63The applicant submitted that s.33(6) of the Schedule is a punitive provision. Therefore an insurer should be held to strict compliance with s.33(6) and s.37(4) of the Schedule. Under s.37(4) of the Schedule, an insurer is required to advise the insured person of the medical and any other reasons for its stoppage of IRBs. The applicant submitted that the reasons for denying the benefit must be correct because he must be able to remedy his non-compliance. If the denial notice does not provide that opportunity to remedy the non-compliance, then an insurer should not be able to rely on the notice to deny benefits. The applicant also submitted that the denial must contain the medical reasons, failing which the IRBs must be continued to be paid, just as an insurer is required to pay for treatment incurred pending a proper denial listing medical reasons under s.38(11) of the Schedule. In this case, the July 7, 2017 denial did not contain any medical reasons. The applicant submitted that the July 7, 2017 denial letter provided legally incorrect information because it stated the purpose of the EUO was to determine if the applicant was working, but the respondent already made that determination because the July 7, 2017 letter claimed he made a material misrepresentation with respect to his work. I disagree with the applicant for the following reasons.

64The respondent relied on the Court of Appeal decision of Sietzema v. Economical Mutual Insurance Company (“Seitzma”).⁵⁹ The Court of Appeal held that, where there is a clear denial of benefits, the reasons for denying a benefit do not have to be legally correct in order to start a limitation period running. The reasoning is that the insured person must have enough information to challenge that denial. If the reasons for the denial are wrong, the insured person will be successful in that challenge. If the insured person is provided with a clear unequivocal denial with information on the dispute resolution process and information on the limitation period for disputing the denial, the insured person will have enough information to determine whether to challenge the denial. In this case, the issue was not whether the applicant missed a limitation period, but whether the applicant forfeited his IRBs for the period of time he failed to submit to an EUO without a reasonable excuse. However, the reasoning in Seitzma is of some assistance. I find that in the denial, the reasons for why information or why the EUO is being requested do not have to be legally correct. The information must be reasonably required to adjust the claim and the notice should provide the applicant with enough information to be able to decide whether to challenge the reasons.

65In this case, the July 7, 2017 denial gives one reason as the applicant’s failure to comply with s.33(2) (attending at a the EUO) by refusing to answer questions with respect to the applicant’s post-accident employment. The applicant claims this is inconsistent with the denial in the same letter for material misrepresentation on the basis the applicant advised at his EUO that he did not work after the accident. I find that the applicant’s objection is whether the information that the insurer intended to obtain at the EUO as listed in the letter was reasonably required to adjust the claim, which I determined was. While that was not necessarily properly listed in the July 7, 2017 denial letter, it was clear from the letter that the reason the IRBs were not paid was because of the applicant’s refusal to answer questions at his EUO. Therefore, I find that the July 7, 2017 denial letter provided enough information to the applicant upon which he could respond.

66The respondent submitted that it is an absurd interpretation of the Schedule to require medical reasons to be given in a denial letter when the reason for the denial has nothing to do with medical reasons. I agree. I accept the respondent’s submission if the Legislature intended IRBs to be paid pending the delivery of medical reasons in the same manner as treatment is required to be paid under s.38(11), the Legislature would have included wording similar to s.38(11) of the Schedule for the procedures for claiming IRBs under s.37 of the Schedule. My acceptance of this reasoning is bolstered by the wording in s.37(4), which refers to the denial notice being given to an insured person who is no longer entitled to receive a IRBs “on any one or more grounds set out in subsection (2).” This means only one of the grounds listed in s.37(2) is required to be listed. The use of the words “any one or more grounds” is a recognition that a person may still be medically entitled to an IRB, but has become disentitled for reasons unrelated to whether the insured person has an impairment that would entitle him or her to IRBs.⁶⁰ For these reasons, I find that the use of the word “and” in s.37(4) of the Schedule that states the insurer “shall advise the insured person of its determination and the medical and any other reasons for its determination” is the disjunctive “and.” Otherwise, insurers would be required to make up artificial medical reasons for terminating benefits in cases where the termination is due to the non-medical grounds listed in s.37(2) of the Schedule.

67I find June 15, 2016 (or 10 days after the applicant received the respondent’s June 1, 2016 letter requesting information) is the date the respondent advised the applicant that IRBs “may” be stopped if information was not provided.⁶¹ For this reason, the respondent is required to pay IRBs from April 20, 2016 to June 15, 2016. The respondent was entitled to withhold IRBs until the applicant provided his bank records and is required to pay IRBs for the period during which they were withheld up until July 7, 2017. The respondent is not required to pay IRBs until the applicant submits to the remainder of the EUO. If the respondent subsequently determines that the applicant earned income during that period that ought to be deducted from the IRBs, the respondent has recourse through the repayment mechanism in s.52 of the Schedule.

C. Material Misrepresentation

68Under s.53 of the Schedule, the respondent may terminate the payment of benefits if the applicant wilfully misrepresented material facts with respect to his application for a benefit and that the respondent has given notice to the applicant setting out the reason for the termination. An insurer is not allowed to terminate the benefits for material misrepresentation before the insured person wilfully misrepresents material facts. The parties agreed that the burden of proof to show a material misrepresentation is on the respondent. The respondent relied on the FSCO appeal decision of Madinei v TD General Insurance Co. (“Madinei v. TD”).⁶² I find that decision does not assist the respondent because it dealt with whether a staged accident is an “accident” under the Schedule. There is no dispute in the case before me that the applicant was in an accident. Further, I am not bound by the FSCO decisions. I find that with the use of the term ”willfully”, the Legislature intended that the misrepresentation must be intentional.

69The respondent submits that an insurer may terminate benefits for material misrepresentation even if the applicant is not being paid a benefit at the time and relies on the FSCO appeal decision of Szabo v CAA Insurance Co.(Ontario) as support.⁶³ I do not find that the decision assists the respondent in this case, because there was not enough evidence before me to show the applicant had the necessary intention.⁶⁴

70The respondent asks me to find as a totality of the evidence that the applicant made a wilful material misrepresentation. I am unable to do so. The totality of the applicant’s evidence was that he was not working, which I find to him meant as a web designer and earning money from his work. I did not have enough evidence before me to determine whether the applicant earned any income from GZP. Further, I found that what appeared to be inconsistencies at the applicant’s EUO and the surveillance with his information to assessors was not necessarily inconsistent. For these reasons, I am unable to find that the respondent has satisfied its burden to show the applicant willfully misrepresented his employment status.

71Under s.52 of the Schedule, the respondent may claim a repayment of IRBs if they were paid as a result of a material misrepresentation and the respondent has given notice to the applicant of the amount that is required to be repaid. If there is no material misrepresentation, an insurer may seek repayment of benefits paid within 12 months of the notice that were paid in error. In this case, the only notice seeking repayment is dated July 7, 2017, which is more than 12 months since the last payment of IRBs was made to the applicant in April 2016. The respondent is, therefore, out of time for seeking a repayment as I have found that the respondent failed to establish a material misrepresentation. As there is no evidence that the requisite notice was provided in time, the respondent’s claim for repayment of IRBs in the amount of $3,256.00 is dismissed.

D. Payment for Cost of Examinations

72The applicant is claiming for the cost of a neuropsychological assessment in the amount of $2,000.00 plus a psychometric assessment in the amount of $1,346.49, recommended in treatment plan (OCF-3) prepared by Dr. Stewart dated October 21, 2016. ⁶⁵ The respondent denied the treatment plan, relying on the IE report of Dr. Schmidt dated March 10, 2017.⁶⁶ Dr. Schmidt’s opinion was that there was no neuropsychological diagnosis and, therefore, the proposed neurocognitive assessment was not required.

73Under s.25(1)3 of the Schedule, the respondent is required to pay for the reasonable fees charged by a health practitioner, in this case a neuropsychologist, for reviewing and approving a treatment and assessment plan including any assessment or examination necessary for that purpose. The test for entitlement to the cost of an examination does not require the applicant to prove that he has a cognitive impairment caused by the accident. It is whether there is a possibility that he has a cognitive impairment caused by the accident.

74I find the assessment was necessary. The applicant was diagnosed with a traumatic brain injury by both Dr. Sitwell and Dr. Mendis. Although Dr. Schmidt may have found that there was no neuropsychological diagnosis, the fact that the applicant had to undergo a neuropsychological assessment for Dr. Schmidt to reach that conclusion supports my determination. Further, Dr. Mendis’ recommendation that the applicant undergo a neuropsychological assessment and the diagnosis of concussion also supports my finding that a neuropsychological assessment was necessary to determine whether or not the applicant’s cognitive complaints were related to the accident and, if so whether they required treatment.

75Turning to whether the fees were reasonable, under s. 25(5)(a) of the Schedule, an insurer is not required to pay more than $2,000.00 for an assessment. Under s.25(3) of the Schedule, an insurer is not required to pay for expenses related to professional services rendered to an insured person to conduct a s.25(1) assessment that exceed the maximum rate under the Guidelines. The Superintendent of Insurance has published a Professional Services Guideline⁶⁷ that sets out that the maximum hourly fee that a neuropsychologist⁶⁸ may charge is $149.61. Dr. Stewart’s treatment plan does not state how many hours were required for the neuropsychological assessment. However, she testified that her estimate of the longest it would take to conduct psychometric testing, including the initial interview, is 15 hours, scoring takes about 3 to 4 hours, background review about 6 to 8 hours and report writing about 8 to 12 hours. I find that the applicant already underwent the initial interview when Dr. Stewart conducted her psychological assessment. Dr. Stewart also conducted a background review for her psychological assessment. When the duplication from Dr. Stewart’s psychological assessment is removed from the equation, the total number of hours it should take for Dr. Stewart to conduct psychometric testing on the applicant is roughly 13 hours at $149.61 per hour or $1,944.93. The estimated cost for the neuropsychological assessment consisting of 16 hours of test scoring and report writing is $2,393.76. Dr. Stewart’s testimony was that sometimes a psychometrist will administer the psychometric testing. For this reason, and given that I did not hear any submissions on the issue, I find that the psychometric testing is not required to be combined with the neuropsychological assessment and subject to the $2,000.00 cap. By my calculation based on Dr. Stewart’s testimony, the actual cost of each assessment would exceed the recommended costs set out in Dr. Stewart’s treatment plan. Accordingly, I find that the fees she recommended in her treatment plan are reasonable.

E. Regulation 664 Award

76Under s.10 of Automobile Insurance, R.R.O. 1990, Regulation 664, if I find that the respondent unreasonably withheld or delayed payments to the applicant, I may award the applicant lump sum of up to 50 percent of the amount to which the respondent is entitled to (a “Reg. 664 award”). I found that the respondent had enough information as of November 1, 2016, to calculate the applicant’s weekly IRB, but not enough information to calculate how much IRB was owed. Therefore it was reasonable for the respondent to request an EUO. However, it was not reasonable for the EUO to be scheduled almost 5 months after the initial request for the EUO, especially when the applicant had indicated dates in April 2016 that were convenient. Despite the inordinate delay by the respondent in scheduling the EUO, there was no effort during that period by the applicant to produce the written confirmation of his post-accident earnings or lack thereof. The EUO may not have been necessary if the applicant had produced the information. Even though I have determined that the insurer is required to pay IRBs from April 20 to June 15, 2016, I find that it was not unreasonable for the respondent to not have paid for the benefits during that time since the obligation to pay arose out of a gratuitous payment. For these reasons, I exercise my discretion to dismiss the claim for a special award.

F. Interest

77Interest is owed on IRBs payable from April 20, 2016 to June 15, 2016. I find that interest is not owed on any other IRBs because the respondent is entitled to withhold IRBs until such time as the applicant attends at an EUO and provides the information required to calculate the benefits owed. If the parties are unable to agree on the interest owed within 20 business days of the release of my decision, they may make further written submissions on the issue to me within 5 days after that.

V. DETERMINATION AND ORDER

78From March 24, 2017 to date, the applicant meets the test for entitlement to benefits on the basis he has a substantial inability to engage in the essential tasks of his pre-accident employment and self-employment. I make no determination on whether the amount owed is $400.00 per week. If the parties wish to make further submissions of the amount once the applicant has provided written confirmation of his post-accident income and he has submitted to an EUO, they may contact the Tribunal within 60 days of the release of this decision to schedule a date and time for doing so by teleconference and for serving and filing any documentary evidence they will be relying on.

79The applicant may contact the Tribunal to vary my determination of the date to which IRB are forfeited if the applicant notifies the respondent he agrees to submit to the remainder of the EUO and the completion of the EUO has not been scheduled to take place within 30 days of the release of my order.

80The respondent is required to pay the applicant IRBs from April 20, 2016 to June 15, 2016., The respondent was entitled to withhold IRBs from June 15, 2016 to the date the applicant provided his bank records and an updated confirmation of income OCF-13, at which time, the respondent is required to resume payment of the IRB and pay the IRB that was withheld up to July 7, 2017. The respondent is not liable for paying IRBs from July 7, 2017 to date or until the applicant submits to an EUO.

81The respondent’s claim for a repayment of IRBs for material misrepresentation is dismissed.

82The applicant is entitled to the cost examinations for a neuropsychological assessment in the amount of $2,000.00 and psychometric testing in the amount of $1,346.49 recommended by Dr. Stewart.

83The applicant is entitled to interest on the IRBs payable from April 20, 2016 to June 15, 2016. If the parties are unable to agree on the interest owed within 20 business days of the release of my decision, they may make further written submissions on the issue to me within 25 business days after the release of this decision.

84The applicant is not entitled to an award under s.10 of Ontario Regulation 664.

Footnotes

1. 1The applicant withdrew his claim for a cost award.
2. 2The Case Conference Adjudicator’s order states that the applicant was seeking a medical benefit in the amount of $1,146.49 for psychological services recommended by Dr. Angela Stewart. However, it became apparent throughout the hearing that the treatment plan in issue was for a neuropsychological assessment, not psychological treatment and that the amount claimed is $3,346.49. The application states the amount in dispute is $3,346.49. The case conference Order states $1,146.49 of the treatment plan is being claimed as the treatment pan was partially approved. Exhibit 35, the treatment plan in dispute of Dr. Stewart dated October 21, 2016 was for a total of $5,556.49. The respondent approved $2,200.00 of the treatment plan, leaving $3,346.49 in dispute.
3. 3Exhibit #27, transcript from the EUO of the applicant taken on June 26, 2017 (“EUO transcript”), p.28
4. 4A.G. is the chief financial officer of FL, a software start-up that markets grain for farmers.
5. 5A.G. required a person familiar with Cake PH# framework.
6. 6Exhibit #27, EUO transcript, p.8
7. 7Exhibit #27, EUO transcript, p.9
8. 8Exhibit #27, EUO transcript, p.25
9. 9Exhibit #27, EUO transcript, pp.20-21
10. 10Exhibit #1, video footage from October 15 to 19, 2016; Exhibit #4, Intrepid Investigations Surveillance Report, dated October 31, 2016
11. 11Exhibit #27, EUO transcript, p.22
12. 12Exhibit #27, EUO transcript, p.26
13. 13The applicant also testified that there was a sleep area he could lie down at. TC confirmed that the applicant was attending at his office, but that the applicant was not paid for work he did after the accident. He did not do any web design for TC after the accident. TC testified that the applicant was bringing his lap top computer to GZP, which is consistent with the applicant’s testimony that he did use his computer, but he could not use it for extended periods.
14. 14Exhibit 14, report of Dr. Mendis dated August 11, 2016; Exhibit 15, report of Dr. Fox dated August 11, 2016; Exhibit 9, report of Dr. Schmidt dated March 10, 2017; Exhibit 16, report of Dr. Mendis dated March 10, 2017; Exhibit 18, paper review report of Dr. Fox dated March 10, 2017; Exhibit 17, report of Dr. Mendis dated March 10, 2017; Exhibit 11 addendum report of Dr. Schmidt dated March 23, 2017; Exhibit19, paper review report of Dr. Mendis dated August 30, 2017; Exhibit 20, paper review report of Dr. Fox dated August 30, 2017; Exhibit 45, letter from the Respondent to the applicant dated March 24, 2017.
15. 15The investigator’s reports included some photos of the applicant from GZP’s website in which he appeared to be working for GZP. Those photos were removed from the website shortly after the applicant was asked about working at GZP at his EUO.
16. 16Exhibit 28, Appletree Medical Group Clinic clinical notes and records
17. 17Exhibit 30, Ottawa Hospital records for the period November 6, 2013, to February 24, 2016, Exhibit28: Appletree Medical Group clinical notes and records, Exhibit 31 Clinical note of Dr. Leike of Eshmun Medical Centre dated March 1, 2016, Exhibit14: IE report of Dr. Tilak Mendis, neurologist, dated August 11, 2016, Ex 16: IE report of Dr. Tilak Mendis, neurologist, dated March 10, 2017 and Exhibit19: IE paper review report of Dr. Tilak Mendis dated August 30, 2017.
18. 18Exhibit 16, report of Dr. Tilak Mendis, neurologist, dated March 10, 2017.
19. 19Dr. Mendis did not find any midline shift or ocular motor dysfunction when he examined the applicant in July 2016. He specifically looked for these conditions because of the clinical note of Matthew Claxton, physiotherapist, dated March 15, 2016 that recorded ocular motor dysfunction saccadic eye movement and horizontal mid-line shift in Exhibit 48, the records of Apollo Physical Therapy Centres.
20. 20Exhibit 16: report of Dr. Tilak Mendis, neurologist, dated March 10, 2017. Dr. Mendis deferred further comment to an ophthalmologist or neuro-optometrist. That assessment was apparently not conducted.
21. 21Exhibit 14: report of Dr. Tilak Mendis, neurologist, dated August 11, 2016
22. 22Exhibit 19, paper review report of Dr. Mendis, dated August 30, 2017
23. 23Exhibit 22, OCF-3 Disability Certificate of Dr. Lachovich, chiropractor, dated March 1, 2016
24. 24Exhibit.15: report of Dr. Mitchell Fox, physiatrist, dated August 11, 2016 from an assessment conducted on July 27, 2016
25. 25Section 58 of the Schedule deals with the duty of an applicant to seek employment and s.7(3)(a) of the Schedule allows a deduction of 70% of post-accident income earned during the period in which the applicant is entitled to receive an IRB.
26. 26The parties advised at the continuation of the hearing by teleconference on November 22, 2018 that after the in-person portion of the hearing, the applicant provided his bank records. I was not provided with these documents.
27. 27Exhibit 37: letter from Coachman the respondent to the applicant dated April 14, 2016 advising that the file will be referred to H&A Forensic Accounting and that payment of IRBs was already issued based on OCF-2 from FL. There was nothing in the letter that stated the payment was made on a good faith basis pending confirmation of the applicant’s gross pre-accident income. However, I accept the payment was made on a good faith basis. Given that the applicant was advised on March 16, 2016 that self-employment income information was required before the respondent could calculate the IRB payable, there was no obligation for the respondent to pay an IRB until the information was provided.
28. 28Section 4(2)2(i) of the Schedule, the calculation of IRB for a person who was self-employed at any time during the four weeks before the accident is based on the person’s gross income for the 52 weeks before the accident. Section 4(2)3 of the Schedule states the self-employed person may designate as his gross annual employment income the amount of his gross employment income during the last fiscal year of the business that ended on or before the day of the accident. In this case, the last fiscal year was 2015.
29. 29Section 4(3) of the Schedule. I was not provided with any indication that the applicant opted to use his last fiscal year, but I accept H&A’s comment that it provided the maximum IRB payable. I find, therefore, that using the last fiscal year was the most advantageous to the applicant and that the income information required was for the purpose of calculating IRBs based on the applicant last fiscal year ending before the accident.
30. 30Based on Exhibit37, letter from the respondent to the applicant dated April 14, 2016 and the applicant’s testimony.
31. 31Exhibit 48, Letter from H&A to counsel, dated April 18, 2016. H&A requested other documents if the applicant was not relying on his last fiscal year that ended before the accident to calculate his IRBs. I was not provided with any indication that the applicant opted to use his last fiscal year, but I accept H&A’s comment that it provided the maximum IRB payable. I find, therefore, that using the last fiscal year was the most advantageous to the applicant and that the income information required was for the purpose of calculating IRBs based on the applicant last fiscal year ending before the accident.
32. 32Exhibit 38, letter from the respondent to the applicant dated June 1, 2016
33. 33Exhibit 38, a copy of the letter was faxed to the applicant’s lawyer’s office on June 1, 2018.
34. 34Exhibit 48, H&A report dated October 21, 2016
35. 35Exhibit 48, Email from the applicant’s paralegal to the respondent dated November 7, 2016
36. 36Exhibit 46, the emails exchanged between the applicant’s paralegal and H&A state the applicant’s paralegal was sending the “complete” 2015 tax return. However, the responding emails from H&A keep asking for the 2015 notice of assessment, from which I draw an inference that the June 20, 2016 Notice of Assessment, Exhibit 48, was not provided with the applicant’s 2015 T1 General tax return.
37. 37Exhibit 26, H&A report dated October 21, 2016 states that confirmation of how much EI was paid in 2015 was still outstanding.
38. 38For some reason, the amount of EI benefits the applicant received in 2015 was not requested by H&A, only the 2016 EI information was requested. Neither the respondent nor H&A was provided with a copy of the applicant’s Employment Insurance (“EI”) file. However, the T4E for 2015 was produced at some point,
39. 39Tax returns are usually required to be filed no later than April 30, but self-employed people may file by June 15. However, I was provided with no reason why the insured needed to wait until June 15 or why copies of the documents such as his T4 forms and the documents he provided to his accountant that he relied on for filing his taxes were not forwarded to the respondent or H&A much earlier.
40. 40Exhibit 46, email exchanged between Allan Snelling LLP and H&A Forensic Accounting re: documents provided, dated September 28, 2016
41. 41Exhibit 48, T1 General for the year 2015 dated June 9, 2016 and Exhibit 48, T1 Adjustment Request for the year 2015 dated September 28, 2016.
42. 42Under s.4(6) of the Schedule, the IRB may be adjusted if the Canada Revenue Agency adjusts the applicant’s tax return.
43. 43Exhibit26: H&A report dated October 21, 2016
44. 44H&A was also requesting information about the applicant’s business losses from 2015 and post-accident. Under s.7(2)2 of the Schedule, 70% of the person’s weekly loss from self-employment is added to the base amount for calculating the IRB. Under s.4(4) of the Schedule, a self-employed person’s loss from self-employment after an accident is determined in the same manner as losses from the business in which the person was self-employed would be determined under subsection 9 (2) of the Income Tax Act (Canada) without making any deductions for certain expenses. The applicant’s gross income for 2015 in the June 20, 2018 Notice of Assessment was $35,595.00. At 70% of his gross income, this amounts to $479 per week. The maximum IRB payable is $400.00 per week under s.7(1) of the Schedule. The notice of reassessment that includes the applicant’s self-employment income shows a gross income of $39,583.00 for 2015. At 70% of this gross income, the amount is $532.00 per week, which is also well over the maximum IRB payable of $400.00 per week. Therefore, I find that the notice of reassessment made no difference to the respondent’s calculation of IRB. It only confirmed that the expenses and revenues from his self-employment did not change the amount of the applicant’s weekly IRB.
45. 45The applicant declared T4 employment income of $ 9,101 16 and other employment income of $3,000 on his 2016 tax return.
46. 46Exhibit 43, applicant’s declaration of post-accident income and benefits (OCF-13), dated November 1, 2016.
47. 47Exhibit 48, letter from the respondent to the applicant dated November 4, 2016.
48. 48The only cheques produced by the applicant to the respondent from GZP were dated from 2015 in Exhibit
49. 49Exhibit 44, letter from the respondent to the applicant dated February 7, 2017.
50. 50State Farm Mutual Automobile Insurance Company and Williams, (FSCO Appeal P15-00001, July 17, 2015) [“State Farm v. Williams”]
51. 51Section 33(2)(a) of the Schedule
52. 52Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule. 1.04 (1). See also Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563, para.34
53. 53FSCO Bulletin No. A-10/03
54. 54The parties agree that only the benefits for which the requested information is relevant can be withheld.
55. 55Section 37(2)(f) of the Schedule states that the respondent shall not discontinue paying an IRB unless the respondent is no longer required to pay the IRB because the applicant failed to provide information or submit to an EUO under s.33(6). Section 37(2)(f) applies to the respondent because it paid the applicant IRBs up to April 20, 2016.
56. 56Smith v. Co-operators General Insurance Co., [2002] 2 SCR 129, 2002 SCC 30
57. 57The respondent initially submitted that it sent the applicant a denial under s. 37(4) of the Schedule dated March 24, 2017, Exhibit 45, that stopped IRBs pursuant to s.33(6). However, it was a denial based on the IE assessments conducted on the applicant. No mention was made in the March 24, 2017 letter that entitlement to IRBs was denied because of the applicant’s failure to provide information.
58. 58Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) [the “LAT Rules”]
59. 59Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111
60. 60See also s.37(2)(g) of the Schedule.
61. 61Exhibit 38, letter from the respondent to the applicant dated June 1, 2016
62. 622017 CarswellOnt 2651
63. 63Szabo v CAA Insurance Co. (Ontario), 20014 CarswellOnt 2493.
64. 64The issue of material misrepresentation was not listed as an issue in the respondent’s response to the applicant or in the Case Conference Adjudicator’s order.
65. 65Exhibit 35, Treatment Plan (OCF-18) of Dr. Angela Stewart, dated October 21, 2016
66. 66Exhibit 10, report of Dr. Schmidt dated March 10, 2017 and Exhibit 45, letter from the respondent to the applicant dated March 24, 2017.
67. 67Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014
68. 68Under s. 3(1) of the Schedule, “neuropsychologist” means a psychologist authorized by law to practise neuropsychology who has been registered to practice as a neuropsychologist in Canada for a minimum of five years.