Citation: Said v. Northbridge Insurance Company, 2021 ONLAT 20-001503/AABS

Release date: 10/15/2021

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

Between:

Roshan Said

Applicant

and

Northbridge General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Dinesh Shan, Paralegal

For the Respondent:

Jennifer McGlashan, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Roshan Said, was injured in an automobile accident on July 27, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Northbridge General Insurance Company, the respondent.

2The respondent denied the applicant’s claim for income replacement benefits (IRBs) and payment for an accountant’s report. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on June 29, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is the applicant entitled to IRBs of $400.00 per week from January 14, 2020 to date and ongoing?

(ii) Is the applicant entitled to $2,850.00 for payment for the completion of the November 9, 2019 IRB Accounting Report by S&T Accounting (the November 9, 2019 accounting report)?³

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

PRELIMINARY ISSUE – Exclusion of Surveillance VIDEO

5In reply, the applicant requested that the surveillance video be excluded from evidence at the hearing. The applicant submitted that it never received a copy of the surveillance video until it was received as part of the respondent’s hearing submissions. The applicant submitted that production of the surveillance video with the respondent’s hearing evidence breached the Tribunal’s June 29, 2020 Case Conference Report and Order where the parties were ordered to disclose any other documents that had not been exchanged but that the parties intended to rely upon at the hearing by November 20, 2020.

6I find that I do not need to determine whether the surveillance video is excluded from the hearing record. The surveillance video did not factor into any of my decisions on the issues in dispute given that the resulting September 1, 2020 Investigation Report by Reed Research (the investigative report)⁴ was before me and the applicant did not seek to exclude this report as evidence for the hearing.

RESULT

7I find that the applicant is not entitled to IRBs for the period of January 14, 2020 to date and ongoing, the applicant is not entitled to payment for the November 9, 2019 accounting report, no interest is payable, and the application is dismissed.

ANALYSIS

Income Replacement Benefits

8For the reasons that follow, I find that the applicant is not entitled to IRBs for the period of January 14, 2020 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (January 14, 2020 to July 27, 2021)

9The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident.

10I find that the applicant has failed to meet his burden of proving on a balance of probabilities that he is entitled to IRBs for the period from January 14, 2020 to July 27, 2021.

11It is undisputed that at the time of the accident, the applicant was self-employed as a handyman/construction worker.⁵

12The respondent submitted an Employer’s Confirmation Form (OCF-2) dated October 5, 2019 that was completed by the applicant.⁶ This OCF-2 stated that the applicant returned to work on July 28, 2019. Based on this document alone, I find that the applicant is not entitled to IRBs during the period in dispute given that it reports the applicant did not lose any time away from his work after the accident.

13The applicant did not address the OCF-2 in his reply submissions. In fact, the applicant offered very limited submissions regarding his entitlement to IRBs as he only submitted in his initial hearing submissions that he suffered “from many physical and mental injuries as a result of the accident and it has substantially limited the Applicant.”⁷ The applicant submitted very little medical documentation for the hearing to support his submissions. For example, the applicant relied upon the clinical notes and records (CNRs) of the Dr. Ekhtiari Pain Clinic. These CNRs, however, are largely illegible for the applicant’s visits during the period in dispute.

14The applicant also submitted the CNRs from Markham Stouffville Hospital which only show an emergency room visit on February 18, 2020, and follow-up diagnostic tests, for abdominal pain that began the day before on February 17, 2020. The CNRs note that the applicant reported no prior history of this pain and there were no other CNRs entries during the period for which the applicant is claiming IRBs.

15The respondent provided a July 30, 2019 Disability Certificate (OCF-3) completed by Dr. Ardeshir Ekhtian, chiropractor. This OCF-3 indicated that the applicant was substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. The OCF-3 indicated that the applicant could return to work on modified duties but also stated that “he is not able to go back to work due to heavy job and there is not [sic] modified job available.” In any event, it is well settled that an OCF-3 alone is not sufficient evidence to meet the applicant’s burden of proving entitlement to IRBs. Further, the estimated duration of disability was listed as 9 to 12 weeks, which would have expired before the period in dispute.

16The respondent also provided the CNRs from the Ariana Walk-In Clinic for the period of July 27, 2016 to March 20, 2020.⁸ These CNRs show no visits during the period in dispute as the applicant’s last visit was on February 9, 2019.

17The only other medical documentation before me dated during the period in dispute was submitted by the respondent. In a July 16, 2020 Insurer’s Examination (IE) Physiatry Assessment Report by Dr. Raymon Zabieliauskas, physiatrist,⁹ Dr. Zabieliauskas diagnosed the applicant as a result of the accident with cervical strain whiplash associated disorder (WAD) II and a lumbosacral strain, both of which Dr. Zabieliauskas noted were resolved at the time of his assessment.¹⁰ Dr. Zabieliauskas stated that while the applicant continued to experience residual pain, it was his opinion that the applicant had no residual objective organic pathology attributable to the accident and that the applicant could resume his previous activities of daily living without any physical restrictions or functional limitations.¹¹

18Dr. Zabieliauskas’ opinion regarding the status of the applicant’s accident-related injuries at the time of his assessment is supported by the investigative report. Surveillance of the applicant was conducted on August 13, 17-21, 24 and 25, 2020. On August 17 and 18, 2020, the investigative report noted that the applicant left his home wearing work coveralls and attended two job sites, one of which was a multimillion dollar mansion under renovation.¹² On August 18, 2020, the applicant was also observed purchasing drywall.¹³ On August 19, 2020, the investigative report again noted that the applicant left his residence wearing work coveralls,¹⁴ and on August 24, 2020, the applicant attended two job sites and obtained construction material from a supplier all while wearing work coveralls.¹⁵ On August 25, 2020, the applicant was again observed attending a job site.¹⁶ The surveillance conducted in August 2020 as set out in the investigative report shows that the applicant was working in his pre-accident employment as he was attending job sites in appropriate work attire for physical labour and purchasing construction-related supplies.

19In his hearing submissions, the applicant took issue with the respondent raising entitlement to IRBs as an issue because the respondent only denied IRBs based on the respondent’s accounting firm requiring more documentation from the applicant. While this appears to be correct from the Explanation of Benefits (OCF-9s) before me, the issue of whether or not the applicant met the entitlement test for IRBs was clearly set out as an issue in dispute in the Tribunal’s June 29, 2020 Case Conference Report and Order. Moreover, after the question of entitlement to IRBs was raised by the respondent in its hearing submissions, the applicant had a full opportunity to address this issue but, for whatever reason, did not in his reply submissions.

20On the evidence before me, I find that the applicant is not entitled to IRBs as the October 5, 2019 OCF-2 reported that he missed no time from his employment after the accident. Alternatively, I find that the applicant has failed to meet his burden of proving on a balance of probabilities that he was substantially unable to perform the essential tasks of his pre-accident employment from January 14, 2020 to July 27, 2021 and, as a result, is not entitled to IRBs for this period.

Entitlement to IRBs beyond 104 weeks of the accident (July 27, 2021 to date and ongoing)

21I find that the applicant is not eligible for IRBs for the period of July 27, 2021 to date and ongoing because he did not prove entitlement to IRBs within 104 weeks of the accident (i.e. from January 14, 2020 to July 27, 2021).¹⁷

22Even if I am incorrect that one’s entitlement to an IRB in the post-104 period is predicated on their eligibility for an IRB in the 104-week period before, I find that the applicant has not proven entitlement to IRBs from July 27, 2021 to date and ongoing on a balance of probabilities.

23To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which they are reasonably suited by education, training, or experience.¹⁸

24In Dr. Zabieliauskas’ July 16, 2020 report, the applicant reported that he came to Canada from Kyrgyzstan in 2006.¹⁹ The applicant reported that he studied medicine in Kyrgyzstan but that he did not complete his studies.²⁰ The applicant confirmed this information in his July 27, 2020 Examination Under Oath (EUO)²¹ and also that he had been a contractor in Canada since 2009.²² The applicant also testified that he completed studies at a security academy and was licensed at some point in time in this field since coming to Canada.²³

25Despite providing evidence of the applicant’s education, training and experience, the applicant provided no evidence that he would meet the stricter post-104-week IRB eligibility test. I have no medical documentation before me from the post-104-week period and, therefore, I have no evidence as to the applicant’s inability to engage in any other employment considering his education, training, and experience during this time.

26Therefore, in the alternative, I find that the applicant has failed to prove on a balance of probabilities that he is entitled to IRBs for the period from July 27, 2021 to date and ongoing.

The November 9, 2019 Accounting Report

27The applicant relied upon s. 7(4) of the Schedule to support his claim for payment for the November 9, 2019 accounting report.

28Section 7(4) of the Schedule obligates an insurer to cover the cost of a report prepared for the purpose of calculating an insured person’s income if they are applying for IRBs based on employment or self-employment. The report must be prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004²⁴ and be reasonable and necessary for the purpose of determining the insured person’s entitlement to an IRB. I find that the applicant’s claim for payment fails on the third prong of this test.

29Section 4 of the Schedule sets out how to determine an insured person’s pre-accident gross employment income for the purpose of calculating IRBs.

30It is undisputed that at the time of the accident, the applicant was self-employed. As such, s. 4(3) applies to the applicant’s claim as he only based his claim for IRBs on his income from self-employment.

31Section 4(3) provides that IRBs are calculated on income from the most recent completed taxation year. It also provides that the weekly income (or loss) from self-employment is 1/52 of the amount of the insured’s income (or loss) for the last completed taxation year.

32Section 7(2) sets out the methodology for calculating the weekly base amount as 70% of the pre-accident gross weekly employment income and weekly self-employment income less the pre-accident weekly losses from self-employment.

33The weekly amount of IRBs payable is then calculated as, pursuant to s. 7(1) of the Schedule, the lesser of the weekly base amount, as calculated under s. 7(2), minus and any “other income replacement benefit assistance,” or $400.00.

34I find that the proposed weekly IRB amount as set out in the November 9, 2019 accounting report of $400.00 (based on a weekly base amount of $775.23)²⁵ is incorrectly calculated. The November 9, 2019 accounting report calculated the applicant’s weekly base amount of IRBs based on the applicant’s income from the 52 weeks prior to the accident,²⁶ and not on the applicant’s income from the 2018 taxation year. I find that this was an error, as the 2018 taxation year was the most recent completed taxation year prior to the accident, as required by s. 4(3) of the Schedule.

35Nevertheless, I find that I can determine the amount of the applicant’s weekly base income for the calculation of IRBs based on the evidence before me. Included in the supporting document material with the November 9, 2019 accounting report is the applicant’s Canada Revenue Agency’s Notice of Assessment for the 2018 taxation year. ²⁷ I find that the applicant’s IRB weekly base income amount can be calculated based on this record alone. I find that the calculation of the applicant’s weekly base income under s. 7(2) of the Schedule is as follows:

$11,877.00 (2018 gross employment income)

Multiply by 70% = $8,313.90

36This amount is then divided by 52, which results in $159.88 per week of base income.

37On the evidence, I find that the applicant is not entitled to payment for the November 9, 2019 accounting report as it was not reasonable and necessary because it:

(i) Incorrectly calculated a weekly IRB amount that was not in accordance with s. 4(3) of the Schedule;

(ii) Was not needed to determine the quantum of IRBs payable had the applicant established entitlement; and

(iii) Did not include any information regarding the applicant’s gross employment post-accident income during the period in dispute, which the respondent is entitled to deduct 70% of pursuant to s. 7(3)(a) of the Schedule.

Interest

38As there are no benefits owing, no interest is payable.

CONCLUSION

39For the reasons outlined above, I find that:

(i) The applicant is not entitled to IRBs from January 14, 2020 to date and ongoing;

(ii) The applicant is not entitled to payment for the November 9, 2019 accounting report;

(iii) No interest is payable; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The issue of whether the respondent was liable to pay an award under Regulation 664 was listed in the Tribunal’s June 29, 2020 Case Conference Report and Order. However, as neither party provided submissions on this issue, I accept that it is no longer in dispute and does not require a determination by the Tribunal.
3. 3Applicant’s Document Brief, tab 3.
4. 4Document Brief of the Respondent, tab 29.
5. 5Supra note 3 at page 3 and Written Submissions of the Respondent, para. 25.
6. 6Document Brief of the Respondent, tab 21.
7. 7Applicant’s Written Hearing Submissions, para. 10.
8. 8Document Brief of the Respondent, tab 8.
9. 9Document Brief of the Respondent, tab 33.
10. 10Ibid. at page 8.
11. 11Ibid. at page 7.
12. 12Supra note 4 at at pages 2-3.
13. 13Ibid. at page 3.
14. 14Ibid. at page 4.
15. 15Ibid. at pages 4-5.
16. 16Ibid. at page 5.
17. 17See the Ontario Court of Appeal Decision in Wadhwani v. State Farm Mutual Automobile Insurance Company, 2013 ONCA 662 at paras. 12-13.
18. 18Schedule, s. 6(2)(b).
19. 19Supra note 9 at page 6.
20. 20Ibid.
21. 21Transcript of the Examination Under Oath (EUO) of Roshan Said dated July 27, 2020.
22. 22Ibid. at page 81.
23. 23Ibid.
24. 24S.O. 2004, c. 8.
25. 25Supra note 3 at page 3.
26. 26Ibid. at page 10.
27. 27Ibid. at Appendix A “Supporting Documentation,” Canada Revenue Agency Notice of Assessment for the 2018 taxation year.