Applicant v. Aviva Insurance Canada, 2017 CanLII 9808

Licence Appeal Tribunal

Tribunal File Number: 16-001144/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

Adjudicator: Nicole Treksler

Counsel for the Applicant: David Carranza

Counsel for the Insurance Company: Kimberley G. Allardyce

Written Hearing: November 28, 2015

I. Introduction:

1The Applicant, was injured in an automobile accident on June 5, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2Dr. O’Hara Rampersaud, the Applicant’s family physician, completed a Disability Certificate dated July 22, 2015, diagnosing the Applicant with whiplash, cervical strain and muscle spasm, and advised him not to return to work.

3According to Dr. Rampersaud’s clinical notes and records (CNR), the Applicant has a history of back pain and psychological impairment pre-dating the motor vehicle accident.

4Prior to the accident, the Applicant worked as an assistant truck driver. He worked Monday to Friday, 12 hours shifts from 6 a.m. – 6 p.m. The Applicant’s duties included paperwork, loading and unloading merchandise off the truck, using a pump truck and dolly. The Applicant’s job required repetitive lifting, loading and unloading items weighing between 20 to 50 pounds.

5The Applicant made claims for income replacement benefits (IRBs) and an orthopaedic assessment.

6The Respondent paid IRBs to the Applicant at the rate of $184.13 per week from October 19, 2015 to February 23, 2016. The Respondent stopped paying IRBs to the Applicant based on Insurer Examination Reports completed by Dr. Rees Lewis, Psychologist, Dr. John Heitzner, Physiatrist, and Ms. Christine Gross, Physiotherapist and Ms. Lisa Knudstrup, Occupational Therapist, who determined that the Applicant does not suffer a substantial inability to perform the essential tasks of his employment, which is the test for IRBs.

7Regarding the orthopaedic assessment, the Respondent’s position is that the Applicant’s injuries were minor and that he does not have orthopaedic injuries, and, as such, the assessment was not reasonable and necessary.

8The onus is on the Applicant, based on a balance of probabilities, to prove that he is entitled to the continued payment of IRBs and that the orthopaedic assessment was reasonable and necessary.

9I find that the Applicant is entitled to both IRBs and the cost of the orthopaedic assessment. My main rationale for these findings is as follows:

• The Applicant’s injuries sustained from the accident, coupled with a history of physical impairments, supports his entitlement to IRBs.
• Regarding the orthopaedic assessment, given that the Applicant had pre-existing injuries, I find that that the assessment was reasonable and necessary to determine whether the Applicant’s injuries were a result of the subject accident.

II. Preliminary Issue

a) Should a letter and enclosures dated November 14, 2016 and an accountant’s report by McCully and Associates dated September 26, 2016 be admitted into evidence?

10The Respondent wanted to admit new information regarding the Applicant’s employment, which changed the Respondent’s calculation of the Applicant’s IRBs.

11The basis of this new information stems from the Applicant’s Linkedin account, which indicates that he is currently working as a Director A&R at RMG/Harthfelt Music Publishing.

12If the Applicant was working after the date of the accident, the Respondent is requesting repayment.

13I will allow the admission of this new evidence; however, I assign it no weight for the following reason:

a. The evidence that the Respondent seeks to admit is a profile page. This page does not indicate whether the Applicant was working before or after the accident. I am of the view that this evidence alone does not in any way prove the Respondent’s claim. As such, there is insufficient evidence to decide the correct weekly amount of income replacement benefits and repayment.

14My decision does not prevent the Respondent from filing its own application to address any future claim for repayment of benefits.

III. Issues:

15Is the Applicant entitled to IRBS at the rate of $184.13 per week from February 11, 2016, to date and ongoing?

16Is the Applicant entitled to the cost of an examination for an Orthopaedic Assessment performed by Dr. Fred Langer of Healthway Medical Management Inc., in the amount of $1,994.72, as part of the Treatment and Assessment Plan dated May 11, 2016?

17Is the Applicant entitled to interest on any overdue payments?

18Is the Applicant entitled to costs under Rule 19.1 of the Tribunal’s Rules of Practice and Procedure (Rules)?

19Is the Respondent entitled to costs under Rule 19.1 of the Tribunal’s Rules?

IV. Result:

20The Applicant is entitled to IRBs at the rate of $184.13 per week from February 11, 2016 to June 5, 2017.

21The Applicant is entitled to the cost of an Orthopaedic Assessment performed by Dr. Fred Langer of Healthway Medical Management Inc., for $1,994.72, as part of the Treatment and Assessment Plan dated May 11, 2016.

22The Applicant is entitled to interest on applicable benefits.

23The Applicant is not entitled to costs under Rule 19.1 of the Tribunal’s Rules.

24The Respondent is not entitled to costs under Rule 19.1 of the Tribunal’s Rules.

V. Analysis:

i. Is the Applicant entitled to IRBS at the rate of $184.13 per week from February 11, 2016, to date and ongoing?

a) Respondent’s position

1. Based on insurer examination reports, the Respondent’s position is that the Applicant does not suffer a substantial inability to perform the essential tasks of his employment as outlined under subsection 5(1) of the Schedule, which is the test for IRBs.

2. In addition to these reports, the Respondent relied on surveillance video, taken on September 2, 2016, recording the Applicant walking several minutes at a time, taking public transportation, and being out with a friend for about 6 hours. Around 4:59 p.m., the Applicant was observed in “Sport Chek” outlet swinging a golf club.

3. The surveillance video also showed the Applicant, on September 3, 2016, driving a vehicle, washing the windows of his car with a squeegee, and carrying grocery bags.

4. The Respondent submits that the activities recorded on the surveillance are not consistent with the Applicant’s statement that he lacks energy, is socially withdrawn, avoids reaching in general, has severe pain that interferes with walking and has restricted shoulder movements.

5. The Respondent further asserts that the Applicant’s injuries are not a result of the June 4, 2015 accident. According to Dr. Rampersaud’s CNRs, there is evidence that the Applicant was in a previous accident in 2009 in which he suffered a ruptured disc in his back. The Applicant also has a history of back pain and psychological impairment. As such, the Respondent’s position is that the Applicant’s injuries are not a result of the June 4, 2015 accident.

b) Applicant’s position

6. The Applicant’s position is that he is entitled to IRBs and provided Dr. Rampersaud’s CNRs to support his position. Dr. Rampersaud indicated in his reports on September 28, 2014, July 22, 2015 and August 27, 2015 that he suffered a number of impairments. These include a history of muscle strain to the neck and back, whiplash, cervical and lumbar strain because of the subject accident, and a history of muscular skeletal pain since 2013.

7. Dr. Rampersaud’s conclusion was that the Applicant should not return to work as truck driver and supported the Applicant’s plan to return to school in the field of business marketing.

8. In addition to Dr. Ramperaud’s CNRs, the Applicant relied on reports from Dr. Frederic Langer, Orthopaedic surgeon, and Dr. Ana Bodnar, Psychologist to support his entitlement to IRBs. In Dr. Langer’s report dated July 7, 2016, he diagnosed the Applicant with mechanical back pain, a likely lumbar spine disc herniation, a post-traumatic bilateral rotator cuff tear, insomnia and emotional distress. Dr. Langer found that the Applicant’s injuries were not minor. In Dr. Bodnar’s report dated June 4, 2016, she diagnosed the Applicant with Adjustment disorder with mixed anxiety and depressed mood and specific phobia because of the motor vehicle accident. Dr. Bodnar also concluded that the Applicant’s injuries were not minor.

9. Regarding the surveillance, the Applicant submits that he never denied being able to walk, take public transportation or to do his own shopping. The Applicant’s position is that the surveillance video failed to show him performing pre-accident activities of his employment.

c) Findings

25I find that the Applicant has met the burden of proof to support his entitlement to IRBs. In my examination of the Applicant’s entitlement to IRBs, I have taken into consideration the nature of the Applicant’s pre-accident employment as an assistant truck driver, which consisted of repeated heavy lifting, loading and unloading of cargo for 12 hours a day/5 days a week.

26I also considered the type of injuries that the Applicant sustained in the accident. The Applicant sustained muscle strain to the neck and back, whiplash, and cervical and lumbar strain. These injuries combined with Dr. Rampersaud’s documented medical history of the Applicant’s muscular skeletal pain since 2013 suggest to me that due to the physical and repetitive nature of the Applicant’s job as an assistant truck driver he would not be able to perform the essential tasks of his pre-accident employment.

27In fact, due to the nature of his injuries, the Applicant has not returned to his pre-accident employment and decided to return to school in the field of business marketing. Dr. Rampersaud supported the Applicant’s return to school citing the Applicant’s injuries as a barrier for him to return to his pre-accident employment.

28To further support my position that the Applicant is entitled to IRBs, I have relied on the reports from both Dr. Langer, Orthopaedic surgeon and Dr. Bodnar, Psychologist, which paint a picture of the Applicant’s physical and psychological status. Dr. Langer diagnosed the Applicant with mechanical back pain, a likely lumbar spine disc herniation, a post-traumatic bilateral rotator cuff tear, insomnia and emotional distress. Dr. Bodnar opined that the Applicant suffered an adjustment disorder with mixed anxiety and depressed mood and specific phobia because of the motor vehicle accident. From both a physical and psychological perspective, the Applicant has met the burden of proof that he is not able to return to his pre-accident employment.

29The Respondent has relied on insurer’s examination reports to support their position that the Applicant is not entitled to IRBs. I did not find these reports persuasive because the findings in the reports did not support the assessors’ conclusions that the Applicant did not meet the test for IRBs.

30Dr. Heitzner, Physiatrist, examined the Applicant on January 25, 2016, about 8 months after the accident, and concluded from a musculoskeletal point of view, the Applicant sustained a cervical strain, thoracolumbar strain, cevicogenic headaches, and no objective neurological impairments. Dr. Heizner stated that the Applicant has a prior history of neck and lower back pain and indicated that the Applicant’s current soft tissue injures are a direct result of the accident on June 4, 2015. Yet, he concluded that the Applicant did not meet the test for IRBs. Dr. Heizner did not provide any supporting explanations as to why he reached his conclusions.

31I am of the view that Dr. Heitzner did not fully appreciate the nature of the Applicant’s pre-accident employment as a truck driver’s assistant. I find that Dr. Heitzner findings regarding the extent of the Applicant’s injuries are inconsistent with his conclusion that the Applicant can perform the essential tasks of his employment.

32I also did not find Dr. Lewis, Psychologist, report dated December 22, 2015, persuasive. Dr. Lewis diagnosed the Applicant with moderate depressive episode and adjustment disorder with mixed anxiety and depressive reaction, and specific phobia (driving). Although the Applicant has a psychological impairment and documented fear of riding in trucks, Dr. Lewis still opined that the Applicant does not meet the test for IRBs. Dr. Lewis’ findings do not support her conclusions.

33I also did not find Ms. Gross, Physiotherapist and Ms. Knupsturp, Occupational reports dated February 11, 2016 to be persuasive. Ms. Gross and Knudsturp relied on a classification that that placed work demands of the Applicant as truck driver assistant in the light to medium classification. I agree with the Applicant, as indicated in his submissions, Ms. Gross and Knupsturp should have relied on the classification that rated the Truck Driver’s assistant in the heavy category of strength. Considering the nature of the Applicant’s pre-accident employment, which consisted of repeated lifting, loading and unloading, a heavy category of strength classification would have better reflected the Applicant’s work demands.

34Irrespective of the strength classification the assessors used to determine the strength required for Truck Driver assistants, the Applicant fell below the required strength to perform the job, as his capacity to lift objects fell into the sedentary to light strength.

35Both Ms. Gross and Knupsturp indicated that the Applicant displayed self-limiting behavior during their assessment. Based on the medical evidence, I am of the view that the Applicant was likely in pain and could not perform the tasks related to lifting and carrying, as these tasks would have exacerbated his pain. There is objective medical evidence that the Applicant suffers from a history of neck and back pain. I find that the Applicant’s lack of participation in the assessment to be justified.

36I also do not accept the Respondent’s arguments about causation. The Respondent’s position is that the Applicant’s injuries were not a result of the accident. Firstly, the Respondent admitted that the Applicant suffered impairments in that they paid him IRBs from October 2015 to February 2016. Secondly, the Respondent’s own assessors found his impairments to be related to the subject accident. Lastly, the Respondent has not provided any evidence to support its position, other than speculation and conjecture, regarding the extent of the Applicant’s injuries prior to the accident.

37Regarding the surveillance, I agree with the Applicant that the surveillance did not capture him performing any of his pre-accident activities, such as heavy lifting. The Applicant never denied being able to walk, to socialize or to do his own grocery shopping. I find that the surveillance does not show the Applicant engaging in activities that would disqualify him from entitlement to IRBS.

38I am satisfied from both a psychological and physical perspective that the Applicant meets the test for IRBs.

ii. Is the Applicant entitled to the cost of an examination for an Orthopaedic Assessment performed by Dr. Frederic Langer?

39I find that the orthopaedic assessment was reasonable and necessary.

40The Respondent indicated that at the time of the assessment, May 11, 2016, the Applicant’s injuries fell within the MIG. As such, the Insurer indicates that its denial was reasonable at the time of the assessment.

41The Applicant relies on Dr. Bodnar’s report dated June 4, 2016, which indicates that the Applicant’s injuries fall outside of the MIG.

42The Respondent stated that case law, particularly Arruda and Western [2015] O.F.S.C.D. No. 177 dated July 7, 2015, has held that the Applicant has the burden of showing that the MIG does not apply when the treatment plan was submitted.

43Dr. Bodnar attributed the Applicant’s injuries to the June 4, 2015 accident. As such, the psychological impairment existed at the time when the Applicant submitted the treatment plan for his orthopaedic assessment.

44Furthermore, the Applicant has documented pre-existing neck and back pain, which would suggest that an orthopaedic assessment was necessary and reasonable to determine whether his injuries were because of the subject accident.

45I am of the view that the Applicant injuries fell outside of the MIG at the time of the assessment. As such, an assessment was reasonable and necessary and the Respondent should pay for the cost of the orthopaedic assessment.

iii. Is the Applicant entitled to interest on any overdue payments?

46The Applicant is entitled to interest on claimed benefits.

iv. Are both the Applicant and the Respondent entitled to costs under Rule 19.1 of the Tribunal’s Rules?

47Rule 19.1 provides that costs may be requested in a proceeding where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.

48Neither the Applicant nor the Respondent has provided any evidence to show that the other party acted unreasonably, frivolously, vexatiously or in bad faith in a proceeding.

49As such, I will not grant costs to either party.

V. Order:

I order the following:

• The Applicant is entitled to IRBs at the rate of $184.13 per week from February 11, 2016 to June 5, 2017.
• The Applicant is entitled to the cost of an Orthopaedic Assessment performed by Dr. Fred Langer of Healthway Medical Management Inc., for $1,994.72, as part of the Treatment and Assessment Plan dated May 11, 2016.
• The Applicant is entitled to interest on applicable benefits.
• The Applicant is not entitled to costs under Rule 19.1 of the Tribunal’s Rules.
• The Respondent is not entitled to costs under Rule 19.1 of the Tribunal’s Rules.