Citation: Jin Park v. Geico Insurance Company, 2024 ONLAT 23-001389/AABS

Licence Appeal Tribunal File Number: 23-001389/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Chung Jin Park

Applicant

And

Geico Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Chung Jin Park, Applicant (self-represented)

For the Respondent:

Michael Blinick, Counsel

Court Reporter:

Conner McTague

Interpreter (Korean language):

Samuel Park and Sunmi Lee Cameron

HEARD: In-Person:

May 6-7, 2024

OVERVIEW

1Chung Jin Park (the “applicant”) was involved in an automobile accident on September 5, 2020, 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 Geico Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from June 30, 2022, to date and ongoing?

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

RESULT

3The applicant is not entitled to an IRB and no interest is payable.

PROCEDURAL ISSUES

The respondent seeks to adjourn the hearing and combine applications.

4I dismissed the respondent’s requests to adjourn the hearing and combine this matter with related file 23-014522/AABS.

5Rule 16 of the Licence Appeal Tribunal Rules (the “Rules”) sets out the process and requirements for requesting an adjournment. More specifically, Rule 16.3 outlines multiple factors the Tribunal may weigh when considering an adjournment request. Rule 20.6 says the Tribunal may combine claims—those involving the same parties or the same accident—on consent of the parties.

6The respondent, in its motion of May 1, 2024, requested an adjournment and a corresponding order for the parties to return to a case conference to revisit production issues. The respondent sought a two-month adjournment per the form it subsequently filed on May 2, 2024. The respondent submitted an adjournment was necessary because the applicant has failed to produce ordered disclosures of material significance to his IRB claim. The respondent asserted that the limited and incomplete documentation provided by the applicant—in conjunction with the applicant’s failure to comply with the Tribunal’s production orders—resulted in material prejudice to both the respondent and the Tribunal in their respective abilities to properly respond and adjudicate the matters that were at issue in the subject proceeding.

7The respondent also requested that file 23-014522/AABS be combined with the application at issue in this proceeding. The respondent submitted that the other file pertains to an IRB repayment related to the same accident in this proceeding.

8The applicant opposed the respondent’s adjournment request—characterizing it as a “ploy” to create problems and delay the proceedings in “any way possible.” The applicant also opposed the respondent’s request to combine the files, saying that file number 23-014522/AABS was scheduled for a case conference later that month, and that the parties should “just go and do it then.” The applicant relied on several emails he earlier filed—one on January 22, 2024, a second on May 1, 2024, and a third on May 2, 2024. He submitted that the respondent’s motion should be denied because it was “illegal” to make motions on the day of the hearing, and because he was ordered to exchange evidence without asking his opinion. The applicant reiterated that he never promised he would meet the production requests of the respondent, and that the respondent made no motion until the last minute despite having ample time beforehand. The applicant also indicated he had provided all the productions he was able to obtain, and that as far as the outstanding productions went, he had either made reasonable attempts (i.e., unfulfilled requests) or the items were simply not available (i.e., lost or destroyed during his relocation to California). The applicant maintained he had provided “sufficient data to objectively evaluate” his claim.

9I declined to order an adjournment after considering the factors at Rule 16.3 in the context of the parties’ submissions. I dismissed the respondent’s request because this matter was already 15 months old and I deemed a further delay of two months to be undue given that notice of the hearing had been sent to the parties in November 2023 (i.e., six months prior) and adequate time to obtain all the ordered productions had, in my view, already been afforded. I further found the respondent’s request was not made in a timely manner and did not have the consent of the applicant. While the respondent argued that the missing productions prejudiced its ability to challenge the proposed IRB quantum and the applicant’s ability to work, I found this could be mitigated by affording the parties an opportunity to make submissions on the implications (i.e., adverse influence) of the missing productions and what weight I should place on these implications.

10Pertaining to the respondent’s request to combine files, I declined to do so as the Tribunal may only do this with the consent of the parties. In this case, the applicant withheld his consent.

The applicant seeks a two-month adjournment to organize the attendance of witnesses.

11I dismissed the applicant’s request to adjourn the proceedings so he could organize witnesses to support his claim.

12As noted above, Rule 16.3 provides factors the Tribunal may weigh when considering adjournment requests. Rule 16.2 pertains to oral adjournment requests and specifies that such requests may only be allowed in compelling circumstances where that party did not, and could not, have known of the circumstances giving rise to the adjournment request prior to the event. I placed weight on the applicant’s self-represented status and interpretation needs when agreeing to consider his request under Rule 16.2.

13The applicant made an oral request for an adjournment at the hearing. The applicant explained that he needed more time to organize his witnesses and requested two months for that purpose. However, when given an opportunity to make submissions, the applicant said he wanted a two-month adjournment to obtain counsel. He added he had not been feeling well and that it was difficult to find a lawyer while living in California. The applicant emphasized that it would be highly prejudicial to him if he proceeded without counsel. The respondent consented to the applicant’s request as a principle of natural justice.

14I declined to order the adjournment requested by the applicant. The applicant did not address his witnesses as the reason for his adjournment request in his submissions. In my view, the applicant’s request was untimely, as he had been given ample notice of the hearing (i.e., six months) and further, had been afforded a reasonable opportunity to organize his witnesses. In fact, the applicant failed to file a final witness list as ordered by the Tribunal in October 2023, and did not convince me he had taken any steps to contemplate or organize witnesses prior to the hearing.

15While the applicant submitted that he wanted the adjournment to obtain counsel, I was satisfied that the applicant had been afforded a fair opportunity to do so, as well as to file a timely adjournment if more time was needed to obtain counsel. Put differently, I found the reasons for the applicant’s adjournment request were foreseeable and avoidable, and that the applicant made little to no efforts to avoid the reason for the adjournment. In fact, up to the hearing, the e-mails filed by the applicant in January and May of 2024 repeatedly contested the respondent’s efforts to adjourn the hearing for two months and asserted it should proceed without delay; I weighed this against the applicant’s own adjournment request when I decided to dismiss his request.

ANALYSIS OF SUBSTANTIVE ISSUES

The applicant’s entitlement to an IRB

Within 104 weeks after the accident (June 30, 2022, up to September 5, 2022)

16I find the applicant has failed to demonstrate he is entitled to an IRB within 104 weeks after the accident.

17Section 5(1) of the Schedule lays out the eligibility criteria for an IRB within 104 weeks of the accident, which is a three-part test. In this case, the applicant must first show he was self-employed at the time of the accident. Secondly, that he suffered a substantial inability to perform the essential tasks of his self-employment. Lastly, that his substantial inability to perform the essential tasks of his employment is a result of the accident.

18The applicant submits the respondent’s assessors are not qualified to judge whether he can work, and that the testing they performed was inadequate and presented a one-sided view of his injuries and impairments. He insists these assessors did not offer an opinion on his ability to work and argues that more weight should be afforded to his own medical records. The applicant contends he suffered injuries to his neck and back along with severe headaches as a result of the accident. The applicant maintains he was terminated from his marketing employment in December 2021 because his accident-related injuries prevented him from doing his job, and that he has not since worked. The applicant relies on the MRI report completed by Dr. Abid Qureshi (physician) on June 17, 2022, the treatment records of Polyhealth Physiotherapy and Lafayette Acupuncture, an employment offer letter dated September 28, 2021, and a written submission (dated March 21, 2024) he included in this evidence brief.

19The respondent argues the applicant was not working at the time of the accident—or in the course of self-employment—as he stopped working in June of 2020 when he was out-of-country. The respondent adds that, subsequent to the accident, the applicant entered into an employment agreement in September 2021 and continued to receive payment under this contract to the end of 2023. The respondent reasons that since the applicant was not self-employed at the time of the accident and was able to complete post-accident employment to the end of his term, that he is not entitled to an IRB. The respondent relies on the Insurer’s Examination (“IE”) assessments conducted by Dr. Ida Jacqueline Cavaliere (physiatrist), Dr. Roy Baskind (neurologist), Mr. Denys Remedios (forensic vocational assessor), and Dr. Paul Cha (chiropractor) as well as various Canada Revenue Agency (CRA) documents and the applicant’s offer of employment letter.

The applicant was self-employed at the time of the accident

20While evidence of the applicant’s self-employment status as of September 5, 2020, is inconsistent, I find on balance that it is more likely he was, in fact, self-employed at that time.

21In my view, the applicant was self-employed as the owner/operator of a marketing business (i.e., Total Accident Paralegal, 2345130 Ontario Ltd.) that referred accident benefit claimants to various law firms from 2013 to 2021. This is consistent with the occupational history he reported to IE assessor Dr. Baskind in October 2022, as well as the employment background he reported to IE assessors Mr. Remedios and Dr. Cha that same month. Further, the applicant indicated he was self-employed in Part 5 of his October 2020 application for accident benefits (“OCF-1). The CRA evidence relied upon by the respondent—when considered as a whole—also corroborates the applicant’s self-employment at the time of the accident by establishing his ongoing involvement with Total Accident Paralegal throughout 2020. There is the 2020 tax year reassessment that shows the applicant’s total income as $21,969.00. An initial assessment of the 2019 corporate tax return filed for Total Accident Paralegal lists the applicant as the company director, and shareholder information provided to the CRA for the 2021 tax year identified the applicant as owning 100 per cent of the company.

22While I accept the respondent produced evidence that showed the applicant’s business generated no revenue or expenses past June 2020, I do not agree this means he ceased to be self-employed prior to the accident in the face of the other evidence (his consistent reports to IE assessors, his OCF-1 attestation, and the CRA records). Further, I do not accept that the applicant’s visit to California in June 2020—and subsequent relocation there in December 2020—precluded his ongoing self-employment, as the applicant indicated to Dr. Cha that he worked from a home office since the onset of the COVID-19 pandemic and communicated with clients, paralegals, and lawyers by telephone and by email. Although I agree the applicant made statements to IE assessor Dr. Cavaliere—and in his written submission—that contradict a finding of self-employment at the time of the accident, I view these as outliers that merit diminished weight owing to the bulk of the other evidence pertaining to the applicant’s self-employment at the time of the accident.

The applicant did not suffer a substantial inability to perform the essential tasks of his self-employment.

23I find the applicant has failed to demonstrate he suffered a substantial inability to perform the essential tasks of his self employment.

24The applicant relied heavily on an MRI report (dated June 17, 2022) by Dr. Abid Qureshi to “show the damage and explain everything.” I place little weight on this evidence. While I accept this report documents an impression of chronic neck and low back pain—as well as early cervical myelopathy—I find the applicant did not direct me to a corresponding medical opinion offered by Dr. Qureshi on the applicant’s ability to perform his essential self-employment duties. In fact, the applicant’s submissions conveyed that, after the accident, he lost his strength and experienced moving and balance impairments, shoulder pain, back aches, and weak legs that caused him to easily fall, as well as nausea, difficulty focusing and concentrating, depression, and sensitivity to loud noises. But submissions are not evidence, and while the applicant asserted that the respondent’s IE assessors had produced one-sided reports that did not mention whether he can work or not, I find he failed to point to medical opinions offered by his own treatment and assessment providers that establish he is substantially unable to perform the essential tasks of his self employment, which is his onus to prove. In fact, the applicant did not refer to any evidence that showed the respondent’s IE assessors are not qualified to judge whether he can work, nor that persuaded me the testing these assessors performed was inadequate and presented a one-sided view of his injuries and impairments.

25Further, the treatment records of Polyhealth Physiotherapy and Lafayette Acupuncture Clinic did not convince me that the applicant is substantially unable to perform his self-employment duties. I find these records establish only that the applicant underwent physiotherapy and acupuncture for accident-related injuries from September 9, 2020 to September 24, 2021, and from September 17, 2021 to March 15, 2024, respectively. The applicant did not point to evidence in these records that establishes treatment goals and progress pertaining to his ability to work, or a medical opinion that he was unable to perform his self-employment duties since his accident.

26Despite the applicant’s repeated claims to assessors that he could not work since the accident, I find the bulk of the evidence in this case establishes that he was, in fact, able to perform his self-employment duties post-accident. The respondent pointed to the applicant’s offer of employment from a legal firm for an 18-month contract position ending on March 31, 2023. The role is described as a client and marketing relations specialist, with a gross annual salary of $102,000.00 plus bonus incentive at the discretion of the law firm. The respondent also pointed to CRA remuneration statements (“T4”) for tax years 2022 and 2023 that corroborated the applicant’s employment with reported income of $103,961.62, and $105,923.16, respectively. In my view, this establishes the applicant was employed and working during the pre-and-post 104-week periods he claims for his IRB.

27I do not accept the applicant’s argument that his 2022 and 2023 employment income was a goodwill gesture to compensate him for referrals he made to this law firm up to the end of June 2020. The applicant did not pinpoint where in the employment offer letter it confirms he was to retroactively receive remuneration for earlier referrals. Similarly, the applicant did not direct me to evidence that supports his claim of being fired from this role in December 2023 because he was too sick to work. Pertaining to the applicant’s written submissions, it does not make sense to me that an employer would continue to pay the applicant every two weeks without the applicant producing any results. This is not supported by the probationary period in the employment offer letter—which enabled the applicant to be terminated if he was unable to properly carry out any of his duties during the first three months of his employment—and the termination clauses at paragraphs 13 and 14 of that offer. On balance, I find it more likely that the applicant’s employment ended when the contract expired per the terms of the employment offer.

28I agree with the respondent that the employment duties performed by the applicant under contract for the law firm were more likely than not the same as the self-employment duties he performed at the time of the accident. The applicant failed to produce employment records from the law firm as ordered by the Tribunal. While the employment offer is silent on job duties, the applicant confirmed during the hearing—and in his written submissions—that he was employed as a client and marketing relations specialist to refer accident claims business to the law firm. The applicant also confirmed, to multiple assessors, that he was a self-employed paralegal marketing professional up to the time of the accident, and that he had referred “many cases” to various law firms. In my view, it is reasonable to conclude, on balance, that the applicant’s job duties remained the same after the accident, despite transitioning from self-employment to working as a fixed-term contract employee. And since his work was the same, I find the applicant has not demonstrated he suffered a substantial inability to perform the essential tasks of his self-employment.

29Taken together, I find the evidence in this case does not support the applicant’s claim. I am therefore not convinced the applicant is entitled to an IRB in the 104 weeks following the accident.

After the first 104 weeks that followed the accident (from September 6, 2022, and onwards)

30I find the applicant has failed to demonstrate he is entitled to an IRB after the first 104 weeks following the accident.

31Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after the first 104 weeks of disability. This requires the applicant to show he suffers, as a result of the accident, a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

32The applicant’s submissions do not differentiate his evidence on the basis of the post 104-week period, although he consistently asserted throughout the hearing that he was unable to perform any work since the accident. The respondent argues that all the IE assessors determined the applicant did not meet the post-104-week IRB test, and that the applicant was employed and paid under contract for work as a marketing professional during the post-104-week period.

33I am not convinced that the applicant has shown, as a result of the accident, a complete inability to engage in employment or self-employment for which he is reasonably suited. The applicant did not point to a medical opinion in evidence that supported a complete inability to work per section 6(2)(b) of the Schedule. I put weight on the IE assessments in evidence as they were all performed to examine whether the applicant met the post 104-week test. I find that none of the assessors offered a medical opinion that supported IRB eligibility. Dr. Cavaliere’s physiatry assessment concluded that, from a physical perspective, the applicant did not meet the test set out at section 6(2)(b) of the Schedule. While Dr. Baskind identified that the applicant has neurological challenges, I find he determined these issues were unlikely to affect the applicant’s engagement in employment. Dr. Paul Cha’s functional abilities assessment similarly determined the applicant did not meet the threshold for post 104-week IRB eligibility.

34It follows too, that if the applicant’s evidence pertaining to his injuries and symptomology falls short of proving a substantial inability perform his job duties, that this same evidence is also insufficient to prove a complete inability to work in any employment or self-employment for which he is reasonably suited by education, training, or experience, which is a higher bar to meet. Accordingly, I find no basis to conclude the applicant has met his evidentiary onus per section 6(2)(b) of the Schedule to prove he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

Interest

35Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue benefits and I therefore find no interest is owing.

Costs

36I dismiss the respondent’s request for costs.

37Rule 19.5 of the Licence Appeal Tribunal Rules (the “Rules”) outlines the Tribunals power pertaining to costs. This Rule compels the Tribunal to consider all relevant factors, including the seriousness of the misconduct; whether the conduct was a breach of a direction or an order issued by the Tribunal; whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to the other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

38The respondent orally requested $1,500.00 in costs at the hearing, which I find complies with Rule 19.2 concerning how requests for costs are to be made. The respondent submits the applicant made deliberate misrepresentations and failed to produce evidence. The respondent says that failing to sanction this behaviour will encourage claimants to not be truthful in their submissions. The applicant relies on IY vs. Pembridge Insurance Company, 2019 ONLAT 18-006724/AABS (“IY”) to show that false representations and unreasonable conduct merit costs.

39The applicant argued that he has no reason to be dishonest, and that his accountant provided everything the respondent asked for that pertains to 2019 and 2020. He maintained he was truthful about being fired from his law firm employment and encouraged the Tribunal to call his former employer to confirm this as fact.

40While I agree the applicant did not fully comply with the orders made at the case conference for this matter, I found he was nevertheless able to produce some of what was ordered, and, in light of this, I see no reason to discount his claim that he made efforts to obtain the remaining productions that had not been lost or destroyed during his out-of-province move. I therefore do not accept that the applicant’s conduct rises to the high threshold of serious misconduct that is unreasonable, frivolous, vexatious, or in bad faith. I am further satisfied that the inconsistencies between the applicant’s submissions and his evidence do not amount to deliberate misrepresentations. When the applicant’s self-represented status is a consideration, a failure to substantiate his claims is, in my view, distinguishable from a deliberate or wilful misrepresentation of the facts.

ORDER

41The applicant is not entitled to an IRB and no interest is payable. The respondent is not entitled to costs. The application is dismissed.