Citation: Bodikh v. The Co-operators General Insurance Company, 2021 ONLAT 19-009860/AABS

Release date: 04/01/2021

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:

Dani Bodikh

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Dani Bodikh, Applicant

Lisa Bishop, Counsel

For the Respondent:

Jonathan Heeney, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Dani Bodikh, was injured in an automobile accident on February 8, 2018, and sought benefits from the respondent, Co-operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2Dani Bodikh applied for medical benefits as well as an income replacement benefit (“IRB”) that were denied by Co-operators because it determined that Dani Bodikh’s injuries were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). Dani Bodikh disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The following issues form the basis of the dispute between the parties:

a. Did Dani Bodikh sustain predominantly minor injuries as defined under the Schedule?

b. Is Dani Bodikh entitled to an income replacement benefit in the amount of $330.10 per week from February 16, 2018 ongoing, denied January 16, 2019?

c. Is the medical benefit in the amount of $283.80 ($1,360.80, less $1,077.00 approved) for physiotherapy recommended by Health-Pro Wellness, submitted in a treatment plan (“OCF-18”) dated May 9, 2018, denied on May 24, 2018, reasonable and necessary?

d. Is Dani Bodikh entitled to payment in the amount of $2,825.00 for an invoice for an accounting report by S & T Accounting, submitted on May 11, 2018 and denied on June 27, 2018?

e. Is Dani Bodikh entitled to interest on any overdue payment of benefits?

f. Is Dani Bodikh entitled to an award under Ontario Regulation 664 (O. Reg. 664) because Co-operators unreasonably withheld or delayed the payment of benefits?

4The issue of attendant care benefits was identified in the Tribunal application, however, in his submission, Dani Bodikh withdrew the issue. The issues listed above will be the focus of this written hearing.

FINDING

5I find that Dani Bodikh sustained predominantly minor injuries as a result of the accident. He has not demonstrated that his accident-related injuries warrant removal from the MIG. As the MIG limit has been exhausted, he is not entitled to the balance of the treatment plan.

6Further, on the evidence, I find that Dani Bodikh has not proven on a balance of probabilities that he is entitled to receive any IRBs for the period in dispute. Dani Bodikh is not entitled to the cost of the accounting report.

ANALYSIS

Are Dani Bodikh’s injuries predominantly minor?

7I find the medical evidence supports that Dani Bodikh suffered predominantly minor injuries as a result of the accident.

8The MIG establishes a framework for treating minor injuries, defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical benefits for predominantly minor injuries to $3,500. As set out in Scarlett v. Belair Insurance², the onus is on Dani Bodikh to establish entitlement beyond the MIG limit on a balance of probabilities.

9The Disability Certificate (“OCF-3”) dated February 14, 2018, prepared by chiropractor Benson Ng, lists Dani Bodikh’s injuries as acute pain, other sleep disorders, whiplash associated disorder and sprain and strain injuries. These injuries are consistent with those that fall within the definition of “minor injuries” under s. 3(1) of the Schedule treatable within the confines of the MIG.

10Dani Bodikh put forth no submissions to demonstrate why he should be removed from the MIG. His submissions largely focus on the entitlement to IRBs, payment for the accounting report and the award claim. This is despite his application and the Tribunal Order noting that MIG was an issue in dispute. It is long-established that the insured bears the onus of proof when claiming treatment beyond the MIG limit. I note that Dani Bodikh did not put forward reply submissions to argue against Co-operators.

11Other than the disputed OCF-18, Dani Bodikh has not put forth any other evidence or argument that he requires treatment beyond the MIG. An OCF-18 is not enough to establish that an insured’s injuries are not predominantly minor, or more specifically, that Dani Bodikh’s injuries would prevent him from reaching maximum medical recovery if he was kept within the MIG. As such, I find that there is no evidence that Dani Bodikh’s injuries should be considered outside the definition of a minor injury under the Schedule.

12Co-operators submits, and I agree, that there is no medical evidence that Dani Bodikh has a physical or psychological injury that warrants removal from the MIG. There is no evidence of a pre-existing injury that would support a removal from the MIG under s. 18(2). There is no evidence of any diagnosis or report from a medical expert or treatment provider that supports that Dani Bodikh’s accident-related injuries fall outside of the MIG. Consequently, Dani Bodikh has failed to prove on a balance of probabilities that his accident-related injuries support removal from or treatment beyond the MIG limit.

OCF-18 dated May 9, 2018 in the amount of $283.80

13Having determined that Dani Bodikh has not proven that his injuries fall outside of the MIG, a consideration of whether the balance of the disputed OCF-18 is reasonable and necessary is not required, as the MIG limit has been exhausted and the disputed OCF-18 was partially approved by Co-operators. The $283.80 remaining balance is not reasonable and necessary and is not payable. As no benefits are overdue, no interest is payable pursuant to s. 51 of the Schedule.

IRB

Background

14Prior to the accident, Dani Bodikh had not worked for at least six months. In a statutory declaration dated March 22, 2018, Dani Bodikh declared that he was receiving employment insurance (“EI”) benefits up until May 2018. Dani Bodikh actually received EI benefits until July 2018, according to an accounting report. I will discuss the EI benefits and report below.

IRB eligibility

15Section 5(1) of the Schedule outlines the eligibility criteria for an IRB. In order to be eligible, an insured person must either be employed at the time of the accident, or, if they are not employed, they must have either worked for at least 26 weeks during the 52 weeks before the accident or must be receiving benefits under the Employment Insurance Act (Canada). The onus is on Dani Bodikh to prove on a balance of probabilities that he meets the eligibility criteria in order to receive IRBs.

IRB quantum

16Dani Bodikh retained the services of S&T Accounting (“S&T”) to complete an IRB calculation resulting in a report dated May 6, 2018. Based on the accounting report, the quantum of IRBs was calculated to be $333.20 per week, based on the four weeks pre-accident period. S&T also calculated the quantum of IRBs payable to be $178.50 per week, based on the 52-week pre-accident period. Dani Bodikh is seeking IRBs in the amount of $330.10 per week based on EI income he received during the four-week period prior to the accident.

17Section 4(2)2.ii of the Schedule establishes that where an insured person is unemployed at the time of the accident and in receipt of employment insurance (“EI”) benefits, an IRB calculation based on the four week period is not available, and the insured’s gross employment earnings must be based on the 52 weeks prior to the accident. As such, the IRB quantum is properly calculated at $178.50 per week. Co-operators does not dispute that this is the correct quantum. Despite this, I must still determine whether Dani Bodikh is entitled to any IRBs.

Pre- and post-104 IRB entitlement

18In order to qualify for pre-104 IRBs, that is, the period of the first 104 weeks after the accident, an insured must suffer a substantial inability to perform the essential tasks of his or her pre-accident employment. To qualify for IRBs after 104 weeks after the accident, or post-104 mark, the insured person must suffer from a complete inability to engage in any employment for which they are reasonably suited by education, training or experience. In the present case, Dani Bodikh reached the 104-week mark on February 10, 2020.

19It is well-established that in order to prove entitlement to IRBs, an applicant must provide evidence of the essential tasks of their employment and demonstrate that they are substantially unable to perform the essential tasks of that employment. Failing to produce evidence of an injury or impairment which prevents the applicant from performing the essential tasks of their employment is a failure to meet the onus of proof, resulting in a failed claim of entitlement.

20Co-operators submits that Dani Bodikh has not adduced evidence regarding the essential tasks of his employment or any evidence that he was substantially unable to perform the essential tasks of that employment. Co-operators further submits that Dani Bodikh has not produced any evidence of what impairments he has suffered which prevent him from returning to his essential tasks of employment. On the above, Co-operators’ position is that Dani Bodikh’s evidence fails to establish that he suffers a substantial inability to perform the essential tasks of his pre-accident employment; in addition, that there is no evidence that he satisfies the complete inability test for post-104 entitlement.

21I agree with Co-operators. Having determined that Dani Bodikh suffered minor injuries as a result of the accident, there is no evidence that Dani Bodikh was unable to return to work as a result of his accident-related injuries. Further, Dani Bodikh failed to direct me to any persuasive evidence that he suffered a substantial inability to complete the essential tasks of his pre-accident employment. Given that Dani Bodikh has failed to meet the pre-104-week test, it is unnecessary for me to consider whether he suffers a complete inability to engage in any employment in order to meet the post-104 test under the Schedule.

S&T Accounting report in the amount of $2,825.00

22Section 7(4) of the Schedule requires an insurer to fund an accounting report if three pre-conditions are satisfied, as follows:

a. the insured person must be applying for an IRB that is based on the employment or self-employment considered in the report;

b. the report must be prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004; and

c. the expense must be reasonable and necessary for the purpose of determining the insured person’s entitlement to receive an IRB.

23Section 7(5) of the Schedule limits the amount an insurer is required to pay for an accounting report to $2,500.00. The burden of proof is on Dani Bodikh to establish these conditions based on a balance of probabilities.

24The parties agree on the first two criteria. The issue is whether the S&T report is reasonable and necessary in order to determine Dani Bodikh’s IRB entitlement.

25I find the S&T report commissioned by Dani Bodikh is not reasonable and necessary for the following reasons. First, the evidence shows that Dani Bodikh was employed at Silani Sweet Cheese up until June 26, 2017. Dani Bodikh received EI benefits until July 2018. There is no evidence of any other means of income during the period in dispute. Second, there is no evidence that the records relied on for the purposes of calculating the IRB were extensive or complex. Lastly, I find Dani Bodikh’s IRB calculation was straightforward, and it was not necessary to commission the services of the professional accountant who issued the S&T report.

AWARD

26Dani Bodikh requests an award under s. 10 of O. Reg. 664, submitting that an award is payable “for the insurer’s refusal to properly apply the law, and in deducting EI payments which is expressly excluded in the SABS.” Pursuant to s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that an insurer has unreasonably withheld or delayed the payment of benefits.

27I find that award is not appropriate. Dani Bodikh was unsuccessful in meeting his burden of proof regarding his placement within the MIG. Further, I agree with Co-operators that he has not demonstrated entitlement to IRBs or the remaining issues in dispute. There was no unreasonable withholding of payment or delay. Consequently, as there are no benefits payable, there cannot be an order for an award.

CONCLUSION

28Dani Bodikh has not demonstrated that he sustained injuries as a result of the accident that justify removal from the MIG. As Dani Bodikh’s injuries are predominantly minor injuries, an analysis of the OCF-18 for treatment is not required. Further, Dani Bodikh has failed to establish entitlement to IRBs or payment of the accounting report. As no benefits are overdue, no interest or an award are payable.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v Belair Insurance, 2015 ONSC 3635