Citation: Kukhar v. Aviva Insurance Company, 2023 ONLAT 21-004413/AABS

Licence Appeal Tribunal File Number: 21-004413/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:

Nadiya Kukhar

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Maria Mikhailitchenko, Counsel

For the Respondent:

Nisaa Khan, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Nadiya Kukhar (the “applicant”) was involved in a motor vehicle accident on December 17, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company (the “respondent”) denied income replacement benefits (“IRB”). The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to IRB of $400.00 per week from December 24, 2018 to date and ongoing?

2. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

3. Is the applicant liable to pay $250.00 in costs to the respondent?

RESULT

3I find that:

i. The applicant is not entitled to IRB, as she has not demonstrated that she suffered from a substantial inability to perform the essential tasks of her employment in accordance with s. 5(1) of the Schedule. It follows that she is also not entitled to interest.

ii. The applicant is not liable to pay costs to the respondent.

ANALYSIS

Income Replacement Benefits (“IRB”)

4To receive payment for pre-104 week IRB under s. 5(2) of the Schedule, the applicant must be self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that self-employment. She must identify essential tasks of this self-employment, which tasks she is unable to perform, and to what extent she is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that she meets the tests and criteria noted above.

5Here, the applicant is seeking pre-104 self-employment IRB claiming that she sustained “aggravation” of her right shoulder as a direct result of the accident. She submits that this injury “significantly limited” her ability to perform a majority of her duties as a self-employed cleaner for a period of time and resulted in lost income. The applicant relies mainly on an Application for Accident Benefits/OCF-1 submitted on January 5, 2019; a Disability Certificate/OCF-3 completed by Dr. Kathryn Monaghan dated December 21, 2018; clinical notes and records (“CNRs”) of Dr. Marina Berg, family physician; CNRs of Dr. Oksana Matsenko, psychiatrist; CNRs of Dr. Nathaniel Dostrovsky, internist/rheumatologist; and the applicant’s Canada Revenue Agency (“CRA”) tax information from 2015 to 2020.

6Although the Case Conference Report and Order (“CCRO”) dated February 7, 2022 that set this matter down for a hearing established the IRB particulars as $400.00 per week from December 24, 2018 to date and ongoing, the applicant clarified this (see below) in submissions. She summarized the IRB claim as actually being for “approximately 15 weeks or more” and requested $3,038.00 in IRB, plus interest. The applicant apparently based this figure on her CRA tax returns from 2017 and 2018, as this was the amount that her income from her self-employment cleaning business declined from 2017 ($10,567.00) to 2018 ($7,529.00).

7In response, Aviva argues that the applicant only stopped working for a period of three days post-accident and returned to her self-employed cleaning work as of December 21, 2018. It further submits that the applicant has not adduced any objective medical evidence demonstrating that she suffered from a substantial inability to perform the essential tasks of her self-employment. Correspondingly, the insurer is requesting that the application be dismissed.

8Aviva is also seeking $250.00 in costs, alleging that the applicant “acted unreasonably and frivolously.” This issue was requested for the first time in the respondent’s written submissions, but I am allowing it to be added pursuant to Rule 19.2 of this Tribunal’s Rules of Common Practice & Procedure, which allows requests for costs to made “at any time before [a] decision or order is released.”

Is the applicant entitled to pre-104 IRB?

9I find that the applicant has not met her burden and demonstrated, on a balance of probabilities, that she suffered from a substantial inability to perform the essential tasks of her self-employment. She is not entitled to IRB, nor interest.

10I am not persuaded by the applicant’s argument or evidence. My reasons follow.

IRB Time Period and Self-Employment Income

11Most notably, I find that the applicant has not corroborated the period of time for which she is seeking IRB, likely because the applicant herself is unclear about this key factor in her claim for the benefit.

12In submissions, the applicant wrote that her “own recollection” is that “she was unable to perform her work for a period of time of approximately 6 months,” but also that “it is not possible to establish [the] exact duration of the [a]pplicant’s inability to perform her business.” She also noted that “it is clear” that she missed more than seven days of work in 2018 due to the accident and that she earned substantially less in 2018 than she did in 2017.

13This rationale forms the basis of her request for $3,038.00 in IRB (plus interest) as noted above in paragraph #6, a number that also seems to have been arrived at by settling on an IRB eligibility period of “approximately” 15 weeks when the applicant was unable to work. So, in the end the applicant claims approximately 15 weeks of IRB at $203.08 per week (which is also “approximately”—and quite coincidentally—close to the total amount sought of $3,038.00 before interest, as 15 x $203.08 = $3,046.20).

14These calculations do not withstand scrutiny. Attempting to base the IRB claim on the applicant’s lost income between 2017 and 2018 and then claiming 15 weeks of IRB as a result is insupportable, largely because the accident took place on December 17, 2018 and her IRB eligibility did not begin until a week later on December 24, 2018 (in accordance with s. 6(2)(a) of the Schedule). This left just one week of IRB eligibility available to the applicant for 2018, not six months, or even 15 weeks.

15A more valid comparison would be between 2018 and 2019, given that the accident occurred so late in 2018. But as the respondent pointed out in submissions, the applicant made more money in 2019 than she did in 2018 (her net income of $7,529.00 in 2018 rose to $11,891.00 in 2019, according to her CRA tax returns). It must be noted that this approach would have undermined an argument made pursuant to s. 7(2) that the applicant’s accident-related injuries resulted in lost self-employment income, as it would have been significantly more challenging to demonstrate that there was any lost income in 2019.

16The applicant elaborated on this approach in reply submissions by noting that the last weeks of December were always a time when self-employed cleaners earned a higher level of income. But she did not explain why this would be the case and she did not provide proof for this assertion with evidence such as December billing records from previous years. Additionally, the applicant’s CRA tax returns from 2015-2020 do not support that she could have earned $3,000.00 in a week from her cleaning business, December busy season notwithstanding.

17Further, the applicant reported on an OCF-1 sent to Aviva on January 5, 2019 that she returned to work on December 21, 2018, having taken just December 18-19-20, 2018 off immediately following the accident. The applicant offered no explanation for this in her initial or in her reply submissions, aside from referring to the Dr. Monaghan OCF-3 dated December 21, 2018 where it was noted that she was suffering from a substantial inability to perform housekeeping and home maintenance (which she equated to being equivalent to her work duties as a cleaner) for an estimated 9-12 weeks. Given the applicant’s failure to directly address why she provided this contradictory information, I prefer the OCF-1 and accept the applicant’s notation in this form that she returned to work on December 21, 2018, not an unspecified “approximately” 15 weeks later.

18Additionally, both the applicant and the respondent made passing reference in their submissions to a dispute over IRB information requested under s. 33 of the Schedule. However, the respondent did not provide a fulsome argument or any supporting evidence regarding this issue. Both parties alluded to this apparent dispute, with the respondent noting briefly that the applicant should be deemed non-compliant because of her failure to provide this documentation. But the respondent did not specify what it was seeking from the applicant here, nor did it provide correspondence between Aviva and the applicant, nor did it demonstrate that it was prejudiced due to any information that was not provided. As a result, I find that the respondent has failed to support its assertions regarding the applicant’s alleged non-response regarding requests made under s. 33.

19In all, the applicant has not supported her claim to being off work for any amount of time that would make her eligible for pre-104 IRB. In my view, the applicant arrived at her claim for 15 weeks rather arbitrarily, likely to establish a reasonable weekly IRB amount that would match the decline of her self-employment income between 2017 and 2018. Yet this is not a logical argument, as the accident happened just days from the end of 2018 and cannot reasonably be seen as a factor in this monetary loss. Lastly, the applicant returned to work on December 21, 2018, further undermining her assertions.

Medical Evidence

20In addition, the applicant has not adduced sufficient objective medical support that any injuries or impairments sustained as a direct result of the accident resulted in her suffering from a substantial inability to perform the essential tasks of her self-employment.

21The applicant was treated following the accident by three physicians, none of whom recorded anything regarding the applicant’s inability to work in their CNRs.

i. The applicant saw Dr. Berg, her family practitioner, on over a dozen occasions from the date of the accident into 2021, but only seems to have specifically discussed accident-related complaints in appointments on January 28, 2019, May 2, 2019, and June 22, 2020. Dr. Berg made passing note of headaches and other issues possibly connected to the accident during records from other appointments, although she did not directly connect the accident to these problems. Most notably, Dr. Berg never mentioned any employment limitations or work recommendations in her CNRs. A significant majority of these appointments were about clearly unrelated health concerns.

ii. No evidence supporting the applicant’s IRB claim can be found in the CNRs of Dr. Dostrovsky. The applicant attended appointments with this internist/rheumatologist both before and after the accident regarding her issues with rheumatoid arthritis. As with the CNRs of Dr. Berg, there are no references in the CNRs of Dr. Dostrovsky to the applicant being unable to work or to any workplace limitations. In a letter dated March 26, 2019, Dr. Dostrovsky noted the applicant’s complaints of pain in her lower legs and ankles and right shoulder pain that had gotten worse since the accident. But no mention was made of the applicant’s job.

iii. Lastly, there seem to be no references to the applicant’s inability to work in the CNRs of Dr. Matsenko, a psychiatrist she also saw before and after the accident. These CNRs are almost entirely handwritten and difficult to decipher, however, with only an unrelated letter from Dr. Matsenko to Dr. Berg dated July 10, 2018 being fully legible. With that said, the applicant also makes no reference in submissions to anything in the records of Dr. Matsenko that would support the IRB claim. So, based on what I can read and on what I can infer, these CNRs provide no objective medical support relevant to the IRB matter.

22Also, the applicant alluded in submissions to a number of pre-existing conditions that are also not substantiated in any medical evidence before me. She referred to a left leg injury in 2012; issues with depression, insomnia, and post-traumatic stress disorder that arose around the same time; and problems with her right foot, carpal tunnel syndrome, and chronic pain in both shoulders that began in 2014. However, she provided no medical documentation supporting these assertions aside from the CNRs of Dr. Matsenko, which chronicle the applicant’s psychological difficulties. But as I have already explained above, these records do not connect these issues with the accident.

23It follows that the applicant has failed to provide enough objective medical evidence to support her claim that she suffered from a substantial inability to perform the essential tasks of her self-employment and is entitled to IRB.

Conclusion

24In summation, the applicant has failed to substantiate that she is entitled to IRB. She appears to have returned to work three days after the accident, making her ineligible for IRB due to the week-long waiting period prescribed by s. 6(2)(a) of the Schedule. Her rationale regarding the time period and the amount of IRB claimed does not stand up to a close examination. And the applicant has not provided medical evidence in support of her contention that she was unable to perform her work duties in such a significant fashion that she would meet the requirements of the IRB test in the Schedule.

25For the above reasons, the applicant is not entitled to IRB, nor interest.

Respondent Request for Costs

26Under Rule 19.1 of the Rules, a party may make a request to the Tribunal for costs if it believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith.

27Rule 19.5 covers the relevant factors that the Tribunal shall consider when deciding to order costs. These include: “the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.”

Is the applicant liable to pay $250.00 in costs to the respondent?

28I find that the respondent has not demonstrated that the applicant has acted in an unreasonable and frivolous manner. The applicant is not liable to pay costs.

29In written submissions, the respondent requests $250.00 in costs alleging that the applicant acted unreasonably and frivolously by proceeding to a hearing on an IRB claim when she returned to work within four days of the accident. The respondent further submits that costs are due because the applicant provided no evidence regarding her ability to work and if she suffered a substantial inability to complete the essential tasks of her self-employment.

30In reply submissions, the applicant argues that the respondent has submitted no evidence to satisfy the requirement of Rule 19.1 and demonstrated that her conduct with regard to the IRB issue was frivolous, vexatious, and in bad faith.

31I agree with the applicant. The threshold for a costs award is high, and the respondent has not substantiated its claims that the applicant acted in an unreasonable and frivolous manner.

32While I accept that the respondent made good points regarding the applicant’s case—which should be apparent elsewhere in this decision—an award for costs requires evidence of misconduct pursuant to Rule 19.5. It is not sufficient to point out the perceived weaknesses of a party’s position. Moreover, punishing the applicant with a costs award would be tantamount to punishing her for being unsuccessful, and would, in my view, have an impact on other individuals accessing the Tribunal system.

33Accordingly, the applicant is not liable to pay costs.

ORDER

34I find that:

i. The applicant is not entitled to IRB, as she has not demonstrated that she suffered from a substantial inability to perform the essential tasks of her employment in accordance with s. 5(1) of the Schedule. It follows that she is also not entitled to interest.

ii. The applicant is not liable to pay costs to the respondent.