Jin Chun Liu v. Wawanesa Mutual Insurance Company, 2023 CanLII 19901

Citation: Liu v. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-015386/AABS

Licence Appeal Tribunal File Number: 20-015386/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:

Jin Chun Liu

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: Yu Jiang (Denise), Paralegal

For the Respondent: James Schmidt, Counsel

HEARD: In Writing February 26, 2023

OVERVIEW

1Jin Chun Liu, the applicant, was involved in an automobile accident on July 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in this hearing are:

1. What amount of income replacement benefit (“IRB”) is the applicant is entitled to for the period from July 9, 2019, to January 10, 2021?
2. Is the applicant entitled to an IRB from January 11, 2021, to date and ongoing?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the applicant has failed to provide sufficient details to calculate a quantum for an IRB from July 9, 2019, to January 10, 2021, and therefore I do not have evidence to prove he is entitled to any quantum greater than zero.

4I find the applicant is not entitled to an IRB for the period from January 11, 2021 to date.

5As no benefits are found payable, the applicant is not entitled to interest.

ANALYSIS

Quantum of income replacement benefit

6While the parties have agreed that the applicant is entitled to the IRB for the period between January 9, 2019, to January 13, 2021, they disagree on its quantum.

7In order to determine the quantum of the IRB for this period the applicant provided the following documents:

i. Employer’s Confirmation Form (“OCF-2”), dated July 21, 2019 ii. 2018, 2019 & 2020 Notice of Assessment forms iii. 2019, 2020 T1 Income Tax Benefit and Return iv. 2018 T4 Statement v. 2020 T4A Statements vi. Earning Statements from Lyft [Employer] from September 2, 2019, to October 13, 2019 vii. 2018, 2019 and 2020-Income Tax Return Information

8The applicant admits that his income consists of both employment and self-employment income. A self-employment situation can result in a complicated calculation to determine the correct quantum of IRB. The applicant did not engage the services of an accountant or like professional that might have assisted in the calculations. According to the applicant, the following is a correct calculation of quantum, based on the tax documents and OCF-2 in evidence:

i. July 9, 2019 to September 1, 2019 = $253.08 per week. This amount is based on 70% of $18,000.00, the amount derived from tax records showing the applicant’s gross employment income for the 52 weeks before the subject accident. ii. September 2, 2019 to October 6, 2019 = $0.00 per week. iii. October 7, 2019 to October 13, 2019 = $190.98 per week. The applicant claims a post-accident weekly income of $88.70. iv. October 14, 2019 to December 31, 2019 = $238.08 per week. v. January 1, 2020 to December 31, 2020 = $200.58 per week. The applicant’s post- accident income during 2020 was $3,900.00. vi. January 1, 2021 to date and ongoing = $253.08.

9I have determined from these calculations that:

i. The applicant has taken the 52 weeks prior to the accident and calculated an income for 6 months of 2018 to be $10,800.00 + 6 months of 2019 to be $8,000.00. Then 70% of the combined total of $18,800.00 calculates to $13,160.00, divided by 52, for a weekly amount of $253.08. However, while the 2018 tax information shows a yearly income of $21,600.00 (twice the $10,800.00 claimed for 6 months), the 2019 tax information shows a yearly income of $11,600.00, which would indicate 6 months should be $5,800.00, not the $8,000.00 used in the applicant’s calculation of quantum, therefore I am unable to determine how the applicant arrived at this quantum of $253.08. ii. The applicant deducted the income received as a Lyft driver to determine a $0 payment owing for September 2 – October 6, 2019. iii. It appears the applicant deducted 70% of Lyft income for 1 week from the $253.08 previously calculated to determine a quantum for October 7 – October 13, 2019. iv. From January 1, 2021 to December 31, 2020 the applicant deducts an income of $3,900.00 for the year, yet the tax return submitted for this year shows an additional income of $19,000.00 that does not seem to be accountable in any calculation.

10The OCF-2 form submitted by the applicant contains inconsistent information and is not helpful in determining what the applicant’s income status was prior to the accident. For example:

i. Part 3 of the OCF-2 form shows the applicant as being self-employed from January 1, 2018, to June 30, 2019. Part 4 of the form fails to provide details of gross income that may come from employment and is in a different handwriting and ink, from all other sections of the form. Further, there is a written notation to say the applicant has earned $151,850.00 from self-employment income. Copies of tax returns in evidence show this amount to be “capital gains income”. ii. Part 6 of the OCF-2 form states the applicant was employed as a full-time painter, from June 1, 2019 to July 31, 2019. The applicant is seeking IRB from July 9 through to July 31 while this form indicates he was employed. There is no quantum provided for income during this period.

11The respondent takes the position that the applicant should have engaged the services of an accountant because self-employment income was to be considered in the calculation of IRB. The Schedule provides funding for the applicant to obtain an income report for the purpose of IRB quantum. I find while the applicant is not obligated to seek an accounting report, the onus is on the applicant to provide a correct quantum.

12The respondent acquired the services of “BDO”, an accounting firm to calculate a correct quantum of IRB. BDO made requests for information that the applicant did not provide. The applicant admits that he only agreed to provide tax documentation and that the respondent should have filed a motion for any requests for additional information. The respondent does not rely on the calculations made by the applicant as they provide little to no explanation as to the formula(s) used to arrive at each total presented in submissions. The respondent also notes that prior to the submissions for this hearing, the applicant did not provide quantum calculations to the insurer.

13As mentioned above in my review there are discrepancies between the tax documents, the OCF-2 and the applicant’s calculations of quantum that cast doubt on the accuracy of the calculations. As is, they are unreliable. I agree with the respondent that documentation to support some of the numbers presented in the tax documents would be helpful in identifying or confirming income details.

14With the discrepancies found above, I cannot find that the applicant has proven a correct quantum of IRB for the period in dispute. I therefore cannot determine a correct quantum greater than zero has been established.

Is the applicant entitled to an income replacement benefit from January 11, 2021, to date and ongoing?

15The applicant submits that he suffers from physical and psychological injuries as a result of the subject accident that have prevented him from returning to work. He claims he continues to suffer from impairments from the accident that negatively impact his life. However, the insurer did not suspend benefits based on a medical diagnosis or an opinion based on a physical or psychological impairment.

16Rather, in a letter dated December 22, 2020, the respondent advised the applicant that certain information was required from him in order to calculate the IRB benefits. This letter indicates that there were three previous requests for this information and the insurer had not received a reply. This letter gave notice that the respondent may determine by January 11, 2021, that the applicant is no longer entitled to an IRB if it does not receive the requested information. This letter included a reference to s.33(1) of the Schedule:

Section 33(1) of the Statutory Accident Benefits Schedule states that a person applying for a benefit (such as income replacement benefits or medical benefits) shall, within 10 business days after receiving the request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining a person’s entitlement to benefit. Subsection (6) states that we are not liable to pay for a benefit for any period during which you fail to comply with subsection (1).

17In a follow up letter dated January 13, 2021, the insurer advised the applicant that the IRB had been stopped effective January 11, 2021, because the applicant failed to provide the information requested for the insurer to determine the IRB payable. This letter explains “when you [applicant] provide the requested information, we [insurer] will review your entitlement and may resume payment of Income Replacement Benefit, if appropriate. In order for us to consider payment for any amounts withheld, we will require you to provide a reasonable explanation for the delay in providing information.”

18The information requested was financial, related to the calculation of IRB quantum. The applicant admits to not providing any additional information to BDO except for income tax summaries or assessments. As noted above, given the applicant’s income includes self-employment, information in support of reported amounts was necessary to ensure IRB calculations were correct. Furthermore, as I noted above, there are discrepancies in some of the amounts reported and the calculations made by the applicant and therefore, additional information is required for clarification to arrive at a quantum.

19Given the reasons the respondent suspended the IRB and the fact that the applicant has failed to comply with the request to provide the necessary information, I find that the applicant is not entitled to an IRB from January 11, 2021, to date. The respondent lacked the information required to determine the quantum of the benefit.

Interest

20As I have determined that benefits are not payable, the applicant is not entitled to any interest pursuant to section 51 of the Schedule.

ORDER

21The applicant is not entitled to an IRB from July 9, 2019, to January 10, 2021.

22The is not entitled to an IRB for the period from January 11, 2021, to date.

23As there are no benefits payable, there is no interest owing.

24The application is dismissed.