Released Date: 06/01/2020
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:
[Q.N.N]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Darcie Sherman, Counsel
For the Respondent:
Amanda R.M. Faulkner, Counsel
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant [Q.N.N] (“applicant”) was involved in an automobile accident on May 4, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2The applicant received medical benefits as well as payment of income replacement benefits (“IRBs”) from the respondent, Aviva Insurance Canada (“respondent”), in the amount of $400.00 per week starting May 12, 2016 and ending February 16, 2017. The IRB was denied by the respondent on the basis of s. 44 Insurer’s Examinations (IE) that determined the applicant no longer met the criteria for an IRB.
3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for reinstatement of the IRB.
ISSUES
4The issues to be decided are:
i. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period January 24, 2017 to date and ongoing?
ii. Is the applicant entitled to payment in the amount of $192.12 for the cost of prescription medications submitted on June 14, 2018 and denied on June 29, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. The applicant’s claim for $192.12 for cost of prescription medications is dismissed. No interest is payable.
LAW
6Entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment?
7In order to prove entitlement to IRBs post-104 weeks, s. 6(2) of the Schedule provides that the applicant must suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience.
8In the case of a person employed at the time of the accident, under s. 4 of the Schedule, the quantum of an IRB is calculated at 70% of a claimant’s gross pre-accident weekly income, up to a maximum of $400.00 per week. The person’s gross employment income is, under s. 4(2)1., whichever of the following amounts the person designates:
i. The person’s gross employment income for the four weeks before the accident, multiplied by 13,
ii. The person’s gross employment income for the 52 weeks before the accident
9Critically, s. 4(5) of the Schedule also provides that if, under the Income Tax Act or legislation of another jurisdiction that imposes a tax calculated by reference to income, a person is required to report their income and, if the person has failed to do so, that person’s income before an accident shall be determined for the purposes of IRB without reference to any income that the person has failed to report.
10The onus is on the applicant to prove entitlement to IRB and quantum on a balance of probabilities.
ANALYSIS
Is the applicant entitled to IRB in the amount of $400.00 per week?
11I find the applicant is not entitled to an IRB for the period in dispute as he has not satisfied his onus to prove that he is entitled to IRB in any amount.
12The claimant submits that he was employed at [the woodworking company] at the time of the accident and has not returned back to work since May 5, 2016 due to injuries he suffered in the accident. The applicant’s employment at [the woodworking company] in 2016 is confirmed by the T-4 he filed from his employer for 2016 showing income of $18,194. Further confirmation of his employment at the time of the accident is a Record of Employment from his employer showing his first day of work in 2012 and his last paid day of work was May 4, 2016 and that he is not returning due to “illness or injury”.
13The applicant also filed a letter from Canada Revenue Agency dated December 2, 2019 addressed to applicant’s counsel which states “We cannot send you a photocopy of the 2016 income tax return because our records show the return has not been filed”. The applicant did not put forward any evidence that he was not required to file his income tax return for 2016. Income tax return information was produced for 2017 and 2018 only. Although the applicant submits his 2015 income was $52,773.00, no income tax documents were filed by the applicant to establish this.
14In his submissions, the applicant did not designate his gross employment income under s. 4(2)1 of the Schedule. Under s. 4(2)1.i of the Schedule, his gross employment income would be calculated in accordance with the weekly amount shown in his 2016 T4. Under s. 4(2)1.ii of the Schedule, his gross income would be calculated in accordance with the weekly amount for the 52 weeks before the accident. It is not possible to calculate the weekly amount for the 52 weeks before the accident without income tax documents for 2015, which were not put forward before me. In the absence of a designation by the applicant and income tax evidence for 2015, the only calculation method I am left with is to use his 2016 T4.
15There has been no agreement between the parties as to the method of calculation of the quantum. The respondent argues that, because the applicant did not file his income tax return for 2016, the only quantum of IRB the applicant could establish is nil. I agree with this submission.
16Section 4(5) of the Schedule is clear that, if a claimant for IRB has failed to report their income, that person’s income before an accident shall be determined for the purposes of IRB without reference to any income that person has failed to report. As a result, even if the applicant could establish entitlement to an IRB, the quantum of his IRB would be nil.
17I find that the applicant failed to meet his onus to prove that he is entitled to an IRB in any amount for the period in dispute because he failed to report his income in 2016 as required.
18In these circumstances, it is unnecessary for me to address the issue of entitlement by considering the essential tasks of the applicant’s employment and whether the applicant suffers a substantial inability to perform his essential employment tasks and to also to meet the post-104 week test. For this reason, the applicant’s claim for an IRB is dismissed.
Is the applicant entitled to the disputed cost of prescription medications?
19The applicant claims payment in the amount of $192.12 for the cost of prescription medications submitted on June 14, 2018 and denied on June 29, 2018. I dismiss this part of the applicant’s claim because I find that this amount has already been paid by the respondent.
20The respondent provided records which establish that the $192.12 for prescriptions was paid to the applicant by cheque on September 9, 2019 which cheque was cashed on September 24, 2019. The applicant made no submissions to the contrary.
Interest
21As no benefits are payable, no interest is payable.
ORDER
22For these reasons above, I find that the applicant is not entitled to an IRB as claimed. The applicant is not entitled to $192.12 for the cost of prescription medications submitted on June 14, 2018 and denied on June 29, 2018. The applicant’s claim is dismissed. No interest is payable.
Released: June 1, 2020
Avril A. Farlam
Vice Chair