Citation: Kasprzyk v. The Commonwell Mutual Insurance Group, 2025 ONLAT 23-015615/AABS

Licence Appeal Tribunal File Number: 23-015615/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:

Barbara Kasprzyk

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Alexander Makaronets, Counsel

For the Respondent:

Sophia Chaudri, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Barbara Kasprzyk, the applicant, was involved in an automobile accident on July 30, 2018, 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, The Commonwell Mutual Insurance Group, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant has been declared catastrophically impaired on the basis of Criterion 8.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $299.65 per week from June 28, 2021 to January 26, 2023 for the period that the insurer suspended the IRB?

ii. Is the applicant entitled to an IRB in the amount of $299.65 per week from January 27, 2023, and ongoing?

iii. Is the applicant entitled to $1,417.70 for physiotherapy, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated November 2, 2020?

iv. Is the applicant entitled to $1,621.50 for physiotherapy, proposed by Iscope Concussion and Pain Centres in a plan dated November 25, 2020?

v. Is the applicant entitled to $8,958.80 for physiotherapy, proposed by Inspiration Home Therapy Clinic in a plan dated February 23, 2022?

vi. Is the applicant entitled to $1,550.00 for Botox treatment, proposed by Iscope Concussion and Pain Centres in a plan dated July 19, 2021?

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

viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4I find the applicant is entitled to IRBs in the amount of $185.00 per week, plus interest, from June 28, 2021 to January 26, 2023.

5I find the applicant is entitled to IRBs in the amount of $185.00 per week, plus interest for the elapsed period, from January 27, 2023, and ongoing.

6I find the applicant is not entitled to the treatment plans for physiotherapy and Botox treatment.

7The respondent is not liable to pay an award.

ANALYSIS

Income Replacement Benefit

8To receive payment for an IRB under section 5(1) of the Schedule, the applicant must be 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 employment. The applicant must identify the essential tasks of her 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 test.

9The issue in dispute is quantum. The applicant submits that she is entitled to IRBs of $299.65 per week for the period of June 28, 2021 to January 26, 2023 and also for January 27, 2023 and ongoing. The applicant relies on the accounting reports provided by Reshynsky Accounting PC.

10The respondent does not dispute that the applicant meets the legal test for eligibility to the IRB. The respondent submits there has been an overpayment as of June 28, 2021 of $35,019.80 because the benefit was adjusted to accurately reflect the applicant’s self-employment and other income for the period of August 7, 2018 to July 14, 2023. The respondent submits the quantum is $185.00 per week for the period of June 28, 2021 to January 26, 2023 and $185.00 per week for January 27, 2023 and ongoing. The respondent relies on the accounting reports provided by Williams Meaden & Moore.

11At issue is what quantum of IRBs the applicant is entitled to from June 28, 2021 to January 26, 2023, and for the period of January 27, 2023 and ongoing.

Section 33 requests

12I find the respondent made a valid request pursuant to s. 33 of the Schedule.

13The applicant raised the issue of excessive information requests from the respondent. The applicant submits that the s. 33 requests makes the process unduly burdensome for the applicant and the respondent is requesting information beyond the scope of what is typically required to calculate the IRBs amount.

14The respondent states the s. 33 requests are reasonable and argues that the applicant did not fully comply with the request for information pursuant to s. 33 of the Schedule.

15In Part 3 of the applicant’s OCF-2 dated August 12, 2018 under “What Salary Information is Needed,” the applicant indicates she was self-employed at the time of the accident. In Part 4 entitled “Applicant’s Income” under self-employed gross income, the applicant noted “To follow”. In Part 6, she lists the essential tasks of her job as “painting, cleaning, lift supplies to and from car”.

16The applicant acknowledges the delay in responding to the requests for information because she is not fluent in English, and acknowledges she was not sufficiently maintaining her employment records or self employment invoices for the period in question. The applicant states she was hospitalized for extended periods of time in September 2019, September and October 2020, April 2021, January 2022, and February 2023 due to mental health related concerns that also adversely affected her ability to respond to the s. 33 requests.

17The respondent’s section 33 requests and the applicant’s responses are reflected in the chart below:

Documents requested by respondent

Documents provided by applicant

Business invoices (2017)

Not available

Summary of business activities (2018)

T2125 Statement Business/Professional Activities

Commission income (2018 and 2019)

Provided confirmation of this income source

2023 CRA Notice of Assessment

2023 T1 General

Canada Pension Plan Disability benefits

Decision letter April 12, 2023

Bank deposit information

Provided

18I find the respondent’s requests are reasonable because the requested information relates to the applicant’s nature of employment and this information is required to establish her income-related details, and in turn to calculate her IRB quantum. The respondent issued 12 section 33 request letters from January 2019 to August 2024 regarding her IRBs.

19I find the applicant has substantially complied with the s. 33 request no later than July 2, 2024. Based on the submissions before me I see no evidence that the applicant is attempting to mislead the respondent. The applicant substantially provided the relevant information regarding her income loss, including reports from professional accountants to calculate the quantum of IRBs owed.

20I find that the respondent is not permitted to use s. 33 noncompliance as a reason for withholding the benefit because the applicant’s catastrophic impairments and noted mental health challenges have affected her ability to gather and provide certain records, however, she has substantially complied with the respondent’s section 33 requests.

The applicant is entitled to IRBs of $185.00 per week from June 28, 2021 to January 26, 2023

The applicant is entitled to IRBs of $185.00 per week from January 27, 2023 and ongoing

21I find the applicant is entitled to IRBs of $185 per week, plus interest from June 28, 2021 to January 26, 2023 and from January 27, 2023 and ongoing.

22The applicant was originally paid a weekly IRB based on a report prepared by S&T Accounting dated October 29, 2018, however, the applicant states “this calculation was later found to be erroneous” and updated based on new information. A subsequent report was filed by the applicant by Reshynsky Accounting PC dated January 30, 2023.

23The applicant submits that she is entitled to $299.65 per week, plus interest, for the period of June 28, 2021 to January 26, 2023.

24I acknowledge the applicant had a mix of income and self-employment that needs to be considered to arrive at the appropriate IRBs. Based on her 2018 income tax returns the applicant was self employed as a cleaner in the six months leading to the accident. Based on her 2017 income tax returns, in the six months prior to the accident, she worked as a painter for an employer. There was also residual commission income that was earned earlier and reported in later income tax filings from 2018 onwards.

25Section 4(5) of the Schedule imposes that a person’s income is calculated in accordance with the income reported under the Income Tax Act. The applicant cannot derive a benefit of recording employment income if the income has not been reported under the Income Tax Act.

26The Reshynsky Accounting report dated January 30, 2023, incorrectly calculated the applicant’s quantum because the report states her income was calculated based on the 52 weeks previous to the accident, when in fact, the applicant was self-employed and has provided updated income tax reporting on which to base the IRB calculations.

27I find the quantum proposed by the applicant, based on the report prepared by Igor Reshynsky, CPA, MBA, dated January 30, 2023 and January 22, 2024 is calculated incorrectly because she has not submitted her painting business/self employment for consideration and the report calculates earnings from a different time period.

28The respondent argues the applicant’s IRBs should be calculated pursuant to the interpretation in section 4(2)(2)(i) of the Schedule. Section 4(2)(2)(i) states:

(2) The gross annual employment income of an insured person is determined as follows:

(2) Subject to paragraph 3, the person’s gross annual employment income is his or her gross employment income for the 52 weeks before the accident if,

(i) the person qualifies for a benefit under subparagraph 1i of subsection 5(1) and was a self-employed person at any time during the four weeks before the accident

29The applicant reported in the OCF-2 dated August 12, 2018 that she was self-employed at the time of the accident. In order to calculate the IRBs for this period her T2125 Statement of Business or Professional Activities for 2018 is required to calculate her income in the year of the accident. The respondent requested the applicant provide a copy of the 2018 T2125, however, the applicant has not directed me to evidence that it has been provided, and ultimately it is up to the applicant to provide the information, and it is to her detriment to not provide it

30The Reshynsky Accounting report concludes the applicant earned a gross income of $22,259.65 over the 52-week period and the resulting IRB calculation is for $299.65 per week. However, in my view, because the 52-week period is a mix of employment the Reshynsky Accounting report’s approach does not accurately reflect the applicant’s income from self-employment, commission and reported T4 income.

31The respondent submits the applicant was self employed at the time of the accident and her self-employment income or loss is 1/52 based on the last completed taxation year in accordance with the Income Tax Act. The respondent argues the applicant has failed to provide income and expense records and therefore only the activities she was involved in at the date of the loss can be considered.

32First, I will consider how the applicant’s reported commission income is factored in the calculation of the IRBs. The applicant’s Reshynsky Accounting report and the respondent’s Williams, Meaden & Moore report each approach the commission income in a similar manner. Each report includes the post-accident commission income received as income after the accident. I find no error in this approach because the activities to incur the commission occurred prior to the accident, however, the commission income is paid out after the accident, and it is reported in her income taxes after the accident.

33Next, I will consider the applicant’s self-employment income and expenses. The initial accounting report prepared by Williams, Meaden & Moore and the follow up report dated February 22, 2024 calculate the IRBs based on the completed tax year for 2017 and 2018, at the date of loss.

34Section 4(3) of the Schedule states: “A self-employed person’s weekly income or loss from self-employment at the time of the accident is the amount that would be 1/52 of the amount of the person’s income or loss from the business for the last completed taxation year as determined in accordance with Part 1 of the Income Tax Act (Canada)."

35In accordance with section 4(3), the Williams, Meaden & Moore report relies on the applicant’s activities at the date of loss in 2018, that is her self-employment as a cleaner, and her T4A for 2018.

36Section 7(2)(1)(ii) states: “the greater of the amount determined for the purposes of subparagraph i and $185, if the weekly income replacement benefit is for a week for which the person is entitled to receive an income replacement benefit after the first 104 weeks of disability.”

37In accordance with section 7(2)(1)(ii) the applicant is entitled to the greater amount, resulting in a weekly income amount of $185.00 per week.

38I find the Williams, Meaden & Moore report more accurately calculates the quantum of the applicant’s IRB because the formula relies on the incomes reported to the Canada Revenue Agency (“CRA”) and her related notices from the CRA. Further, the report considers her various periods of self employment and regular employment as established by the income reporting she provided to the respondent. The applicant’s IRBs are calculated on the basis that her self employment revenue is considered, as well as her regular income from the previous year and the resulting IRB calculation is for $185.00 per week.

39On this basis I find on a balance of probabilities that the quantum for the IRB calculation is $185.00 per week for the period of June 28, 2021 to January 26, 2023, and $185.00 for the period of January 27, 2023, ongoing.

40To receive payment for an OCF-18 under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant is not entitled to $1,417.70 for physiotherapy proposed by Mackenzie Medical Rehabilitation

The applicant is not entitled to $1,621.50 for physiotherapy proposed by Iscope Concussion and Pain Centres

The applicant is not entitled to $8,958.80 for physiotherapy proposed by Inspiration Home Therapy Clinic

41I find the applicant has not met her burden to demonstrate the physiotherapy plans are reasonable and necessary.

42The applicant submits the physiotherapy plan dated November 2, 2020 by Mackenzie Medical Rehabilitation, the physiotherapy plan dated November 25, 2020 by Iscope Concussion and Pain Centres, and the physiotherapy plan dated February 23, 2022 by Inspiration Home Therapy Clinic intend to address the applicant’s pain. The applicant summarized her injuries as “persistent headaches, neck and shoulder pain”. The applicant has not submitted the treatment plans into evidence, therefore, I am unable to determine the number of proposed sessions, the purpose of the sessions, or the duration of the proposed plans and the goal of these plans.

43The applicant relies on her medical history, the family doctor’s clinical notes and records (“CNRs”), and the diagnosis of chronic myofascial pain from Dr. Samuel Wasswa-Kintu. However, the applicant has not directed me to the CNRs or the diagnosis in support of the plans.

44The CNRs of Dr. Christopher Mazza, physician, notes on September 12, 2018, the applicant has a “soft tissue injury”. However, this was two years and four years respectively before the submitted treatment plans. Therefore, I find that the reasonableness and necessity of these treatment plans is not corroborated by contemporaneous medical evidence.

45I find on a balance of probabilities that the applicant has not met her burden to establish the physiotherapy treatment plans are reasonable and necessary.

The applicant is not entitled to $1,550.00 for Botox treatment proposed by Iscope Concussion and Pain Centres

46I find the applicant has not met her burden to demonstrate the Botox plan is reasonable and necessary.

47The Botox treatment plan dated July 19, 2021 was submitted by Iscope Concussion and Pain Centres. The applicant submits the treatment is reasonable and necessary due to the applicant’s neck and shoulder pain, dizziness and visual disturbances.

48The applicant states the plan intends to address the applicant’s injuries including migraines and to improve her daily functioning. The applicant has not submitted the treatment plan as evidence, therefore, I am unable to determine the number of proposed sessions, the purpose of the treatment the duration of treatment, or the goals of the proposed plan.

49The applicant relies on the CNRs of Dr. Manu Mehdiratta, neurologist. However, Dr. Mehdiratta notes “may need to consider Botox … if there is no improvement”, and the applicant stated in submissions Botox “provided limited relief”. In my view, given that there is an inconsistency in the medical evidence about the necessity for this treatment and the applicant has not directed me to a contemporaneous referral for the treatment recommended in the plan, I find the Botox treatment is not reasonable and necessary.

50I find on a balance of probabilities that the applicant has not met her burden to establish the Botox treatment plan is reasonable and necessary.

Interest

51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As such, I find the applicant is entitled to interest on the overdue IRB payments.

Award

52The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

53The applicant submits the respondent’s behaviour was unreasonable, however, she has not led evidence directing me to the specifics of this behaviour.

54The respondent is silent on the matter of the award.

55I find the applicant has not led evidence to demonstrate the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

56I find the respondent is not liable to pay an award.

ORDER

57For the reasons outlined above, I find the applicant is entitled to IRBs for the following periods:

i. $185.00 per week, for the period of June 28, 2021 to January 26, 2023, plus interest;

ii. $185.00 per week, for the period of January 27, 2023 and ongoing, plus interest for the elapsed period.

58The applicant is not entitled to the remaining treatment plans.

59The respondent is not liable to pay an award.