Staszewski v. Intact Insurance Company, 2020 CanLII 80323

Licence Appeal Tribunal

Citation: Staszewski vs. Intact Insurance Company, 2020 ONLAT 19-012409/AABS

Released: September 29, 2020

Tribunal File Number: 19-012409/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:

Rafal Staszewski

Applicant

and

Intact Insurance Company

Respondent

DECISION

PANEL:

Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant:

Daniel J. Balena

For the Respondent:

Matthew J. Stepura

HEARD:

by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident (the "accident") on July 18, 2018 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The respondent, Intact Insurance Company ("Intact"), refused to pay for income replacement benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

2A case conference was held on April 1, 2020. The parties were unable to resolve their dispute and have proceeded to a written hearing.

ISSUES

3The disputed claims in this hearing as noted within the case conference report and order dated April 1, 2020 are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from May 20, 2019 to date and ongoing?

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

RESULT

4Based on the evidence before me, I find the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from May 20, 2019 to date and ongoing. As no benefits are payable, there is no interest owed.

ANALYSIS

Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from May 20, 2019 to date and ongoing?

5I find the applicant is not entitled to an income replacement benefit ("IRB") beyond May 20, 2019 as the applicant has not complied with s. 33(1) of the Schedule. Further documentation was requested by the respondent to assist with determining whether the applicant has earned any post-accident income, or if there is an IRB overpayment pursuant to s. 52 of the Schedule. I find the respondent's s. 33 request for post-accident information is justified and I provided my reasons below. As a result of the applicant's non-compliance with the s. 33 requests, I find s. 33(6) of the Schedule is invoked. This section stipulates the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).

6The applicant was paid an IRB at $400.00 per week from July 25, 2018 to June 3, 2019¹. Intact obtained an accounting report prepared by Fallon Reid which confirmed the IRB quantum at the rate of $400.00 per week.² The IRB quantum was calculated up to December 31, 2018, representing the last date for which the applicant produced information utilized for the IRB calculation.³

7The respondent issued a letter to the applicant dated September 26, 2019⁴ which noted the applicant had advised at an Examination Under Oath ("EUO") on August 30, 2019 that he has not returned to work in any capacity since the accident. The respondent noted there were discrepancies surrounding whether he had returned to work since the accident. The respondent referenced two assessors' reports: Dr. T. Getahun's chronic pain report, dated February 23, 2019 and H. Sharma's attendant care occupational therapy insurer's examination ("IE") assessment report, dated March 21, 2019, which both noted the applicant had returned to work. Based on these discrepancies, the respondent requested further information/ documentation from the applicant to confirm if there was any return to modified duties at work and if there has been any post-accident income received. Further, the respondent noted as per s. 52 of the Schedule, there may be an overpayment of the IRB. It was noted that the IRB would remain suspended as of June 3, 2019 until the applicant provided the requested information/documentation. I find this letter provided the applicant with sufficient reasons why additional information/documentation was being requested pursuant to s. 33(1) of the Schedule and advised the applicant of the consequence of not complying; the IRB remaining suspended.

8The applicant's position is that the respondent suspended the IRB without justification. As a result, the applicant argues he is entitled to reinstatement of the IRB benefit along with the arrears owing since the date of stoppage of the IRB. The applicant submitted that all documentation has been produced to the respondent to support his pre-accident income. The applicant also submitted that a calculation and quantification of the IRB was done by the respondent and medical assessments conducted to date support the applicant's entitlement to the IRB.

9The respondent's position is that the IRB should remain suspended pursuant to s. 33 (6) of the Schedule as the applicant has not complied with the production of medical documents, documents pertaining to a return to work, and post-accident income. The documents were requested by the respondent on a number of occasions.⁵ While the respondent's September 26, 2019 letter referenced two assessors reports which noted the applicant had returned to work since the accident, the respondent relied on three different assessors' reports for the hearing. These three reports all noted the applicant had returned to work since the accident. Further, the respondent submitted the applicant did not advise of a return to work while he was being paid an IRB.

10At the time of the accident, and since approximately January 1, 2017, the applicant was an employee of a numbered company which was owned by his fiancée. The applicant submitted he qualified and was paid an IRB by the respondent and relies on the respondent's letter dated March 26, 2019⁶ which referenced an IE Functional Abilities Evaluation Report dated March 11, 2019.⁷ This report concluded the applicant suffered a substantial inability to perform the essential tasks of his employment as a result of the accident. The applicant submitted he has not earned any income since the accident.

11There were three assessment reports relied on by the respondent which noted the applicant had reported a return to work. The information was noted as follows:

• Assessment of Attendant Care Occupational Therapy Assessment Report, prepared by Julian Amchislavsky, occupational therapist, dated September 13, 2018. It was noted the applicant reported: "He reports that he currently returned to work, but is only completing light supervisory duties with pacing and energy conservation principles."⁸
• Independent Chronic Pain Assessment Report, prepared by Dr. T. Getahun, orthopedic surgeon, dated February 23, 2019. It was noted the applicant reported: "Mr. Staszewski indicates that he attempted a return to work approximately six months after his injuries. He works in a different capacity now where he essentially does blueprint observation and marking of sites."⁹
• IE Occupational Therapy In-Home Assessment Report, prepared by Harish Sharma, occupational therapist, dated March 21, 2019. It was noted the applicant reported: "He has not returned to work full time, but he reportedly goes to work 2-3 times per week to perform modified duties such as marking areas of demolition and drive [sic] a truck."¹⁰

12The applicant denies the statement allegedly made by him which was noted on page 3 within Dr. Getahun's report. The applicant provided no submissions regarding the return to work noted within the other two assessors' reports. The applicant submitted he attempted a return to work at the numbered company on one occasion, for several hours and he was not paid for his work-related efforts for that day.

13I prefer the evidence noted within the three different assessors' reports regarding the applicant's return to work and I find it persuasive. This is because the information appears to be based on the applicant's self-reporting and three different assessors have noted descriptive details describing the applicant returning to work during a period in which he was being paid an IRB. While the applicant denies the statement made within Dr. Getahun's report, he offers no explanation as to why any of the three assessors, including Dr. Getahun have noted that he had returned to work since the accident. Therefore, based on this discrepancy and without any further explanation from the applicant, I accept that the respondent is justified in requesting further documentation from the applicant to confirm whether the applicant earned any post-accident income.

14Written correspondence from the applicant to the respondent noted that the applicant did not wish to provide his private bank statements.¹¹ The respondent sent a corresponding letter to the applicant dated July 29, 2019¹² confirming receipt of some documents but noted the outstanding documents as requested in the respondent's letters dated May 30 and July 11, 2019, and again requested the bank statements from August 2018 to present. The applicant submitted that certain bank records were produced to the applicant's counsel, but they provide no value in determining the compensation paid to the applicant by the numbered company as the weekly cash salary varied from week to week. The applicant submitted that his fiancée was contacted, and she did not keep records of the weekly cash salary paid to the applicant.

15A cover letter dated April 17, 2020 sent by the applicant to the respondent noted bank statements were produced with this letter, but the bank statements were in the numbered company's name.¹³ These bank statements were for the dates January 31 - February 28, 2020 and included redactions. The bank statements noted some cheque numbers and amounts for the cheques, and no basis for the redactions were provided. The applicant submitted that he has provided all the documentation to the respondent to support his pre-accident income which included: 2017 and 2018 tax returns and Notices of Assessments, a Record of Employment, and a T4 for 2018. The applicant submits he does not have further quantifying documentation to support the IRB entitlement.

16I find the respondent's request for the bank statements from August 2018 to present is justified. I find this information would assist the respondent with determining if the applicant received any post-accident income through deposits into his personal bank account. I already noted I prefer the evidence noted within three different assessors' reports over the applicant's evidence in which he maintains he has not returned to work beyond an attempt on one date for which he was not paid. I draw an adverse inference relating to the applicant's refusal to produce his bank statements for the period of August 2018 onward. The applicant's refusal to produce this information leads me to believe that if that information were produced, it may not be to the applicant's benefit. Further, the applicant has submitted that certain bank records have already been produced to the respondent and they are not helpful in determining the compensation paid to the applicant by the numbered company. From the bank records produced for the hearing, they are from the numbered company and represent a discrete period from January 31 - February 28, 2020. I do not find this documentation helpful in determining if the applicant received any post-accident income deposited into his personal account. The applicant submitted that prior to the accident when he performed work for the numbered company, he was paid in cash. However, the applicant has not produced any bank statements from August 2018 onward which would allow the respondent to confirm there was no post-accident income received by the applicant through bank deposits.

17The applicant attended an EUO on August 30, 2019. The transcript from the EUO noted the applicant had stated he had not worked since the accident, made no attempts to return to work for the numbered company, made no attempts to find any other types of employment since the accident, and that he was always paid in cash by his fiancée. He further stated that he did not have his own business for subcontract jobs and that any subcontract jobs acquired went to the corporation and he was paid by the corporation. The applicant further stated that for the year leading up to the accident, he did work at the numbered company. He stated his role was running the demolition projects and that he was also on the jobs. He stated he supervised between 7-14 people, his role involved work which was 100% physical and 100% supervision, and that he was the only supervisor. He also stated that the cash, which his fiancée paid him every two weeks, was not deposited into a bank account.¹⁴ I find this information confirms the nature of the work performed by the applicant prior to the subject accident and how he was paid. However, I am not persuaded by the applicant's statement given during the EUO that he has not worked since the accident. I find this information contradicts what was noted within the three assessors' reports noted above and the applicant has not provided a reasonable explanation for the discrepancies. I am not persuaded that any cash received by the applicant from the numbered company was not deposited into the applicant's bank account as the applicant has not provided his bank statements to confirm otherwise.

18Surveillance was conducted by the respondent in February, May, and June 2019. I have reviewed the surveillance reports and photographs produced for the hearing. I find the following surveillance details noteworthy:¹⁵

• On the morning of February 15, 2019, the applicant and another male were observed picking up materials from suppliers which included Plumbing Mart and Hearth Manor Home Décor which were then loaded into a Mercedes 3500 series Sprinter van (the "van".) They then drove in the van to a residential address undergoing renovations. The applicant entered the residence and two males (not the applicant) were observed carrying a large kitchen countertop into the residence.
• On the morning of February 20, 2019, the surveillance report noted the applicant drove in the van to an industrial building believed to be the office location for the numbered company. The applicant then drove the van and picked up another male from a private residence and they returned to the same residence undergoing renovations which was visited on February 15, 2019.
• On the morning of June 12, 2019, the applicant was observed walking on foot from his residence to a nearby residence where he entered into a new Mercedes 2500 series Sprinter van (the "new van".) The applicant then drove to the industrial building believed to be his office at the same address believed to be the office location for the numbered company. The new van, driven by the applicant, and another yellow GMC cube van driven by another male were observed arriving at an industrial business centre in Brampton, ON. The applicant left the site but returned to the same site later in a Dodge Ram pick-up truck. The applicant was observed on the site supervising operations, conducting various activities with several workers at the job site, and was observed assisting with tossing broken drywall pieces into a dumpster.

19I find the surveillance evidence conducted on the applicant has some persuasive value. It notes dates post-accident in February 2019 in which the applicant picked up supplies from a plumbing store and home décor store with another male and they drove to a job site undergoing renovations. The applicant was also observed entering an industrial building believed to be the office of the numbered company. Further surveillance evidence in June 2019 noted and showed the applicant supervising and conducting various activities with workers on a job site; including disposing of broken drywall into a dumpster. I find this evidence generally supports the applicant was engaged in work-related activities similar to ones which he performed prior to the accident as described in the EUO. While the applicant submitted that he attempted to return to work on one occasion which was only for a few hours on one date and that he was not paid for any work he did on that date, this information was not disclosed during the applicant's EUO. The applicant was specifically asked at the EUO if he had attempted to return to work at the numbered company, or attempted to find any other type of employment since the date of the accident to the date of the EUO, and the applicant's response was no. The applicant has not provided any details regarding when the date or timeframe was in which he attempted a return to work on that one occasion. There has been no explanation provided by the applicant regarding why he was driving to supplier business stores and picking up supplies with another male and then driving to a residential address which was undergoing renovations. Therefore, I find the surveillance evidence supports that the applicant has attempted to return to work on more than one occasion since the accident.

20Based on the totality of the evidence and for the reasons I have noted above, I find the applicant is not entitled to an income replacement benefit beyond May 20, 2019 as he has not complied with the respondent's s. 33 (1) requests for further information/documentation. However, I find that some of the documents requested within the respondent's request letter dated September 26, 2019¹⁶ are not relevant for the determination regarding whether the applicant has earned any post-accident income. These documents specifically include:

• Copies of pay statements from employment income earned for the period July 1, 2017 to May 20, 2018; and
• T4 for the numbered company for 2017.

21I find the period requested for the above noted documents is prior to the accident and the respondent already relied on an accounting report which calculated the IRB quantum. Further, the applicant has submitted he did not keep a copy of his 2017 T4 and this information would not assist the respondent with determining any post-accident income. I find the remaining documents listed within the September 26, 2019 are reasonable requests made by the respondent to assist with determining: if the applicant returned to work following the accident, earned any post-accident income, and if there was an overpayment of IRBs pursuant to s. 52 of the Schedule. Therefore, pursuant to s. 33(6) of the Schedule, the respondent is not liable to pay IRBs to the applicant.

CONCLUSION

22For the reasons I outlined above, no benefits are payable, and the applicant's claim is dismissed.

Footnotes

1. 1Tab C of the respondent's written submissions – Letter from Intact dated September 10, 2019 noting IRB will remain suspended as of June 3, 2019.
2. 2Tab B of the applicant's submissions – Accident Benefits Income Replacement Benefit Report, dated May 14, 2019, at 55-66.
3. 3Ibid at page 58.
4. 4Tab C of applicant submissions – correspondence letter from respondent to applicant dated September 26, 2019.
5. 5Tabs A - E of the respondent's submissions - S. 33 request letters from the respondent to the applicant dated: May 7, July 29, September 10 & 26, and November 28, 2019.
6. 6Tab A of the applicant's submissions – Letter from respondent dated March 26, 2019, at 2.
7. 7Tab A of the applicant's submissions – Functional Abilities Evaluation Report, dated March 11, 2019, prepared by Dawn Rodie, physiotherapist, at 5-34.
8. 8Tab H of the respondent's submissions – Assessment of Attendant Care Occupational Therapy Assessment Report, at 10.
9. 9Tab I of the respondent's submissions - Independent Chronic Pain Assessment Report, at 3.
10. 10Tab J of the respondent's submissions - Insurer's Examination (IE) Occupational Therapy In-Home Assessment Report, at 2.
11. 11TAB F of the respondent's submissions – Correspondence letter from applicant to respondent, dated July 25, 2019 responding to the respondent's request letter for documents dated July 11, 2019.
12. 12Tab B of the respondent's submissions – Correspondence from the respondent dated July 29, 2019.
13. 13Tab M of the respondent's submissions – Cover letter from applicant to respondent dated April 17, 2020 and accompanying bank statements dated January 31 - February 28, 2020.
14. 14Tab K of the respondent's submissions – Examination Under Oath Transcript of August 30, 2019, at pages 5, 8, 9, 22, 25, 26, 35, 36 of the EUO transcript.
15. 15Tab L of the respondent's submissions – Excerpts contained within Surveillance Reports of Intrepid Investigations, at 183-187, 194, 197, 2014.
16. 16Tab D of the respondent's submissions- Correspondence letter from respondent to applicant, dated September 26, 2019.