Citation: Parameswaralingam v. Echelon General Insurance Company, 2021 ONLAT 19-005907/AABS

Release date: 08/06/2021

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:

Praveen Parameswaralingam

Applicant

and

Echelon General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Cary N. Schneider, Counsel

For the Respondent:

Stan Savvateikine, Counsel

HEARD:

By Way of Written Submissions

1The applicant, Praveen Parameswaralingam, was injured in an automobile accident on July 30, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Echelon General Insurance Company, the respondent.

2The applicant applied for income replacement benefits (IRBs) but has not received any payments to date. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3The first case conference in this matter was held on October 15, 2019 at which time a written hearing was initially scheduled for April 20, 2020. After several motions and scheduled resumptions of the case conference, a second written hearing date was scheduled for January 25, 2021.

4On December 23, 2020, the Tribunal granted the respondent’s motion on consent to extend the deadline for its hearing submissions and adjourned the written hearing to February 1, 2021.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Is the applicant entitled to a weekly IRB from August 6, 2018 to date and ongoing and, if so, in what amount?

(ii) Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

PRELIMIARY ISSUE: s. 61 of the Schedule

6In its hearing materials, the respondent submitted that the applicant may be entitled to receive benefits under a workers’ compensation law or plan, such as the Workplace Safety and Insurance Act, 1997 (WSIA).² As a result, the respondent would not be required to pay accident benefits to the applicant pursuant to s. 61(1) of the Schedule.

7In reply, while the applicant conceded that he was working at the time of the accident,³ the applicant submitted, without further details, that he does not qualify for benefits under the WSIA and that he has not made an assignment under s. 61 of the Schedule. The applicant further submitted that if this was an avenue that the respondent wished to explore, it could have done so prior to the hearing. I agree.

8I find that the respondent’s proposition that the applicant may be entitled to benefits under the WSIA is not properly before me as part of this written hearing. Several case conferences were held in this matter and at no time prior to filing its written hearing submissions did the respondent raise this preliminary issue regarding the applicant’s potential entitlement to benefits under the WSIA. In my opinion, the respondent had sufficient time before the hearing to bring a motion to add this preliminary issue to allow the applicant a full opportunity to respond to it given that the respondent first requested further documents from the applicant concerning this issue in early 2020. It is highly prejudicial to the applicant for the respondent to simply raise the issue in one paragraph of its submissions and, in my opinion, it is not the appropriate way of adding an issue to be determined as part of the written hearing.

9For all these reasons, I am not prepared to decide whether the applicant is statute-barred from pursuing his claim for accident benefits to the Tribunal due to alleged entitlement to benefits under the WSIA in accordance with s. 61 of the Schedule.

RESULT

10I find that:

(i) The applicant is entitled to IRB payments for the period of April 25, 2019 to February 24, 2020;

(ii) The applicant has failed to provide sufficient particulars to allow me to calculate the amount of IRBs payable during the entitlement period;

(iii) The applicant is not entitled to an award under O. Reg. 664; and

(iv) No interest is payable.

ANALYSIS

When did the applicant apply for IRBs?

11I find that the applicant applied for IRBs on April 25, 2019 by submitting and delivering a completed Disability Certificate (OCF-3) and Application for Accident Benefits (OCF-1) to the respondent as required by the Schedule.⁴ Therefore, the applicant is not eligible to receive IRBs prior to this date.

12On January 2, 2019, Fairview Wellness, the applicant’s treating facility, faxed an OCF-3 dated December 11, 2018 to the respondent.⁵ A fax confirmation sheet shows that 7 pages were sent to fax number 905-568-7830. The December 11, 2018 OCF-3 confirmed that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident as a result of, and within 104 weeks of, the accident.

13On February 7, 2019, applicant’s counsel faxed correspondence dated February 5, 2019 to the respondent which included:

(i) an OCF-1 dated February 5, 2019; and

(ii) and an Election of Income Replacement, Non-Earner or Caregiver Benefits form (“OCF-10”) dated February 5, 2019 that indicated that the applicant was choosing to receive IRBs.⁶

14The fax confirmation form dated February 7, 2019 indicated that all 11 pages of the February 5, 2019 correspondence were successfully sent to fax number 905-214-7891.

15A review of both the February 5, 2019 OCF-1 and the December 11, 2018 OCF-3 indicate that the forms used were those approved by the Superintendent, all of the required fields on the forms were completed and both forms were signed by the applicant. The OCF-3 was signed by Tri True (Barry) Nguyen, a chiropractor, as required. Therefore, I find that the February 5, 2019 OCF-1 and December 11, 2018 OCF-3 together constituted a completed application for IRBs as required by the Schedule.

16The respondent, however, raised the issue of when it received the February 5, 2019 OCF-1 and the December 11, 2018 OCF-3. The respondent relied upon s. 64(21) of the Schedule and submitted that the December 11, 2018 OCF-3 and the February 5, 2019 OCF-1 were not delivered until April 25, 2019.

17Section 64(21) of the Schedule provides that if an insurer informs an insurer person of the name and address of a contact person to whom documents are to be delivered, anything delivered to the insurer that is not addressed to the attention of the contact person at the address provided is not considered delivered until it is received by the contact person.

18The respondent submitted a letter dated August 2, 2018 that was addressed to the applicant. This letter advised the applicant to direct all contact and correspondence regarding his claim to the following adjuster at Crawford & Company (Canada) Inc. (“Crawford”), an independent adjusting firm:

Sonja Bonnani Accident Benefits Adjuster Crawford and Company (Canada) Inc. 110 Matheson Blvd. West Suite 301 Mississauga, ON L5R 4G7 Telephone: 905-206-5415 Facsimile: 905-568-7830⁷

19As the December 11, 2018 OCF-3 and the February 5, 2019 OCF-1 were not faxed to 905-206-5415 as directed in the August 2, 2018 correspondence, the respondent submitted that these documents were not delivered until April 25, 2019 when they were received by Ms. Bonnani as evidenced by the adjuster log notes.

20In reply, the applicant submitted that:

(i) it was not known if the applicant received the August 2, 2018 correspondence as he was self-represented at the time;

(ii) the respondent never stated in any of its correspondence to the applicant that he should be faxing his documents to any alternative number;

(iii) the respondent only provided the August 2, 2018 letter to applicant’s counsel with the respondent’s written hearing submissions. The applicant submitted that the respondent failed to provide a complete copy of the applicant’s accident benefits file as previously requested on four occasions; and

(iv) it was reasonable for the applicant to instead follow the directions available on the respondent’s website to submit his claim via fax to 905-214-7891 or 905-214-7892.

21I disagree with the applicant’s submissions for several reasons. First, there is no evidence before me to make a determination on whether the applicant received the August 2, 2018 correspondence or not, as suggested in the applicant’s reply submissions. In a similar vein, there is no evidence before me to support the applicant’s submission that he relied upon the fax information set out on the respondent’s website.

22Second, the applicant’s submission that the respondent never advised that he should be faxing correspondence to any alternative number is incorrect. The August 2, 2018 correspondence provided the name and contact information for the applicant’s accident benefit adjuster and directed all correspondence be sent to Ms. Bonnani.

23Third, the only document referred to in the adjuster log notes between January 2, 2019, the date that the applicant’s file was reopened, to the February 5, 2019 OCF-1 being faxed to 905-214-7891 on February 7, 2019 is a Treatment Confirmation Form (“OCF-23”) from Fairview Wellness. This document is not before me to determine what fax number it was sent to. Therefore, I am unable to determine if the applicant waived the requirements of s. 64(21) by its actions any time prior to the OCF-1 being faxed on February 7, 2019. Moreover, whether the respondent did or did not provide a secondary notice of the name and contact person to whom the applicant should be delivered to after February 7, 2019 would not change the applicant’s requirement to comply with s. 64(21) at the time the OCF-1 was faxed.

24Therefore, I find that Ms. Bonnani received both the December 11, 2018 OCF-3 and the February 5, 2019 OCF-1 on April 25, 2019 as set out in the April 25, 2019 adjuster log note entry. As a result, I find that the applicant’s application for IRBs was delivered to the respondent on April 25, 2019 and, therefore, he is not eligible to receive IRBs prior to this date.

The Respondent’s denial of payment of IRBs

25On April 26, 2019, the respondent faxed correspondence to the applicant confirming that it was in receipt of both an OCF-1 and an OCF-3 for the applicant. The correspondence also advised:

Based on the information provided you qualify / don’t qualify for the following benefits:

INCOME REPLACEMENT BENEFITS: An individual qualifies for an Income Replacement benefit if they are substantially disabled from their Employment duties, there is no benefit payable for the first week off work. The OCF-1 submitted indicates that you were Employed at the time of the accident, and you are missing time off work as a result of your injuries from the Motor Vehicle Accident. In order to calculate your entitlement to Income Replacement benefits we require the following information / documentation[:]

Employer Confirmation or Income, OCF2 Form from your Employment at KRSR MOBILE WASH CORP
A copy of your paystubs and Record of Employment detailing your earnings from April 2018 to July 2018 at KRSR MOBILE WASH CORP
A copy of your paystubs and Record of Employment for your Employment at People’s Store
Record of Employment for your Employment at Millennium 1 Solutions⁸

26The applicant relied upon s. 36(4) albeit primarily based his position that the respondent failed to respond by the deadline set out in this section based on his position that the OCF-1 was submitted in February 2019. As I have found that the applicant’s OCF-3 and OCF-1 were not delivered to the respondent until April 25, 2019, I find that the respondent did respond within the permitted 10 business days of receiving the OCF-3 and OCF-1. However, I find that the respondent breached its requirements under s. 36(4) of the Schedule as its April 26, 2019 correspondence failed to:

(i) Pay the applicant IRBs;

(ii) Notify the applicant that the respondent will not pay IRBs and explaining the medical and any other reasons why the respondent did not believe that the applicant was entitled to IRBs;

(iii) Provide notice to the applicant of his required attendance at a s. 44 examination; or

(iv) Request further information from the applicant under s. 33 of the Schedule.

27The April 26, 2019 correspondence informed the applicant that he both qualified and did not qualify for IRBs, and only stated that the respondent could not calculate the quantum of the applicant’s IRBs based on the information submitted. No information was provided regarding the respondent’s denial of IRBs for any medical reasons. While the respondent did request further information from the applicant in this letter, there was no mention of s. 33. There was also no notice provided that the applicant was required to attend a s. 44 examination.

28On September 9, 2019, respondent’s counsel emailed applicant’s counsel and sent a letter dated February 5, 2020 to applicant’s counsel requesting further information in both correspondences. Neither document, however, mentioned s. 33, there were no medical or other reasons provided why the respondent did not believe that the applicant was entitled to IRBs and no notice was given that the applicant was required to attend a s. 44 examination.⁹

29It is not until February 24, 2020 that the respondent provided correspondence to the applicant regarding his IRBs that complied with s. 36(4) of the Schedule. The February 24, 2020 letter referenced the applicant’s claim for IRBs, mentioned that it could not determine if the applicant qualified for IRBs and made a request under s. 33 of the Schedule for certain financial documentation to substantiate the applicant’s claim for IRBs.

30Therefore, I find that no denial of IRBs that complied with s. 36(4) of the Schedule was provided to the applicant until February 24, 2020. As a result, the consequences of s. 36(6) of the Schedule are engaged and the respondent is required to pay IRBs to the applicant for the period of April 25, 2019 and ending on February 24, 2020.

Entitlement to IRBs between February 25, 2020 to July 30, 2020 (within 104 weeks of the accident) and from July 31, 2020 to date and ongoing (beyond 104 weeks of the accident)

31As the respondent provided notice that complied with s. 36(4) of the Schedule on February 24, 2020, the applicant must prove on a balance of probabilities that he meets the eligibility requirements to receive IRBs from February 25, 2020 to date and ongoing.

32The parties disagree whether the applicant meets part of the eligibility requirement for IRBs within 104 weeks of the accident as set out in s. 5(1) of the Schedule. Specifically, the parties disagree if the applicant was employed at the time of the accident and/or employed for at least 26 weeks during the 52 weeks before the accident.

33Regardless, to be entitled to IRBs, the applicant is also required to prove if, as a result of the accident, that he suffered a substantial inability to perform the essential tasks of his pre-accident employment within 104 weeks after the accident.¹⁰

34Further, to 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 he or she is reasonably suited by education, training or experience.¹¹

35The applicant filed no medical evidence for the hearing and solely relied upon the December 11, 2018 OCF-3 as evidence of the applicant’s entitlement to IRBs. It is well established that an OCF-3 alone is not enough to establish entitlement to IRBs.

36Therefore, I find that the applicant failed to prove entitlement to IRBs from February 25, 2020 to date and ongoing on a balance of probabilities.

Quantum of IRBs

37As I have found the applicant entitled to IRBs from of April 25, 2019 to February 24, 2020, I must now determine the weekly amount payable.

38The applicant submitted that the appropriate amount of IRBs payable would be $254.80 per week based on his earnings in the four weeks prior to the accident at K.R.S.R. Mobile Wash Corporation.

39The respondent maintained that it was unable to calculate the amount of IRBs payable based on the financial documents received from the applicant to date. The respondent also submitted that the T4 slips for the 2019 taxation year from 3 additional employers, Cambridge Group Inc., DJ Gosselin Personnel Inc. and Or Computer Solutions Inc., indicated that the applicant retuned to work at some point in 2019.

40Section 7 of the Schedule sets out the method of calculating IRBs payable to an insured person. In calculating the amount of IRBs payable, an insurer is entitled to deduct 70% of the gross employment income from the amount payable during the period in which the applicant is eligible for IRBs.¹² Section 4(5) of the Schedule is also clear that IRBs are calculated without reference to any income that an insured person fails to report under the Income Tax Act (Canada).¹³

41I find that the applicant has failed to provide sufficient particulars regarding his pre-accident income and also regarding his post-accident employment income during the period of eligibility of April 25, 2019 to February 24, 2020 to allow me to determine the amount of IRBs that would be payable.

42The applicant submitted his income tax return information form for the 2017 taxation year showing total earnings of $5,740.00. This document does not provide information if all or what portion of these earnings were made during the 52 weeks prior to the accident.

43The applicant was also ordered to provide to the respondent, among other things, his 2018 Income Tax Return and Notice of Assessment by November 13, 2020 in the Tribunal’s August 28, 2020 Case Conference Report and Order. The respondent also requested the applicant’s income tax records from the 2017 taxation year to date under s. 33 of the Schedule in its February 24, 2020 correspondence.¹⁴

44A March 26, 2019 letter from the Canada Revenue Agency (“CRA”), however, stated that the applicant did not file a 2018 income tax return. As a result, I find that any income that the applicant made in 2018 is not to be included in the calculation of IRBs pursuant to s. 4(5) of the Schedule. Further, as an OCF-2 does not trump the requirement of s. 4(5), the applicant is therefore precluded from relying upon the income reported on the amended OCF-2 form dated December 18, 2020 from K.R.S.R. Mobile Wash Corporation for the four weeks prior to the accident for the calculation of his weekly IRB payments.

45I am also unable to determine the amount of IRBs payable given the deductions that the respondent is entitled to make as a result of the applicant’s employment income earned post-accident. While the applicant submitted T4 Statement of Remuneration paid forms for Cambridge Group Inc., DJ Gosselin Personnel Inc. and Or Computer Solutions Inc. for the 2019 taxation year, it is unknown what portion, if any, of this income was earned from April 25, 2019 to December 31, 2019 and therefore deductible from IRBs payable. Further, there is no information before me regarding any employment earnings in the 2020 taxation year.

46In summary, while the applicant was entitled to IRBs between April 25, 2019 to February 24, 2020, he has not met his burden of providing sufficient documentation or evidence that allows me to calculate the quantum of IRBs payable during the entitlement period.

Award

47Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

48As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

49As there are no benefits owing, no interest is payable.

CONCLUSION

50For the reasons outlined above, I find that: