Applicant v. TD Home and Auto Insurance Company, 2017 CanLII 9813

Tribunal File Number: 16-000929/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:

Applicant

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

Counsel for the Applicant: Stephen Werbowyj

Counsel for the Respondent: Peter Mendelsohn

HEARD: Written Hearing: November 14, 2016

Overview

1The applicant was injured in a motor vehicle accident on February 21, 2015. He applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”), including an Income Replacement Benefit (IRB).

2TD Home and Auto Insurance Company (“TD”) terminated the applicant’s IRB on April 4, 2016, taking the position that he does not meet the test for entitlement. The applicant disputes that termination.

Issue:

3Is the applicant entitled to an income replacement benefit from April 4, 2016 to the present and ongoing?

Result:

4The Applicant is not entitled to an income replacement benefit from April 4, 2016 to the date of this decision.

Discussion:

5The test for entitlement to payment of an income replacement benefit is set out in s. 5(1) of the Schedule. In the context of the applicant’s case, s. 5(1) provides that, for the first 104 weeks following the accident, he is entitled to an IRB if he can prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment. For analytical purposes, the test can be broken into three steps:

1. Was the applicant employed at the time of the accident?

2. Causation

3. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment as the owner and operator of an automobile garage?

6The applicant’s claim falters at the third step. In the analysis to follow, it is important to remember that the applicant, who is represented by counsel, did not provide submissions, case law, or the statutory test for entitlement to an IRB. The applicant’s claim is inferred from the evidence that he has put before the Tribunal.

1. Was the applicant employed at the time of the accident?

7The applicant was employed as the owner and operator an automobile garage at the time of the accident. He reported this information to a number of health practitioners, all of whom included this information in the medical reports submitted to the Tribunal. The health practitioners and their medical reports will be discussed in step three of the analysis. For now it is sufficient to note that the medical reports state that the applicant was employed as the owner and operator of an automobile garage at the time of the accident.

8TD contests the applicant’s report that he was employed in this capacity at the time of the accident. In TD’s response submissions for this written hearing, it pointed to a number of missing documents that would corroborate the applicant’s claim that he was working at his automobile garage:

• Canada Revenue Agency (CRA) Notices of Assessment for the years 2013-2015
• Documentation showing the applicant’s company’s revenues from February 2014 to the present
• A copy of the applicant’s passport showing that he was actually working in Ontario prior to the accident

9In reply submissions, the applicant provided his CRA Notices of Assessment for the years 2014 and 2015 and a copy of his passport. This is not all of the information to which TD pointed. It is, however, sufficient to satisfy me on a balance of probabilities that the Applicant was employed as the owner and operator of an automobile garage at the time of the accident. This is especially so considering the corroborating information in the medical reports.

2. Causation

10The Applicant is entitled to an IRB only if his inability to work as the owner and operator of his automobile garage is caused by and manifests within 104 weeks of the accident. TD does not contest causation in a manner that detracts from the applicant’s ability to meet his onus on this issue. I am satisfied that whatever injury or impairment the Applicant has sustained or endured is caused by the motor vehicle accident.

11The real issue in this case is whether the effect of the injury or impairment is sufficient to satisfy the statutory test for entitlement to an IRB.

3. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment as the owner and operator of an automobile garage?

12Two determinations are required to answer this question. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform these essential tasks?

3(a) What are the essential tasks of the applicant’s employment?

13Based on Robert Bullard’s report, I find as a fact that the essential tasks of the applicant’s employment as the owner and operator of an automobile garage are:

1. Administrative duties (a) Interact with customers (b) Discuss repairs and the condition of a vehicle (c) Order parts (d) Prepare invoices (e) Accept payments (f) Making and accepting phone calls

2. Repair work (a) Perform inspections of vehicles, including using diagnostic computers and driving the vehicle (b) Perform mechanical repairs (engines, transmissions and electrical) on automobiles, trucks, and trailers.

3. Automotive work (a) Tire changes/rotations (b) Store tires (c) Oil changes (d) Fluid flushes (e) Working on steering and suspensions (f) Emissions work

4. Body work (a) Minor body work

14Robert Bullard is a registered kinesiologist who was hired by TD to conduct an independent examination of the applicant. In this capacity, Mr. Bullard conducted a job site assessment in which he attended the applicant’s garage and asked him questions about his pre-accident employment. The report resulting from this assessment was entered into evidence by TD. The report represents the best and most comprehensive examination of the applicant’s pre-accident tasks. I accept the report’s findings in this regard.

(b) Is the applicant substantially unable to perform the essential tasks of his employment?

15The applicant has failed to prove that he is substantially unable to perform the essential tasks of his employment as an owner and operator of an automobile garage. The onus is on the applicant to prove this point on a balance of probabilities. There are serious concerns with his credibility which make me unable to conclude in his favour. I will discuss the applicant’s evidence on this issue, the respondent’s submissions, and the conclusion which I have drawn.

The Applicant’s Evidence

16In support of his claim, the applicant submits a number of medical reports. There are three relevant to his claim for an IRB. The first is a report dated April 29, 2016 from Dr. Maria Koczorowska, a psychiatrist. Dr. Koczorowska diagnosed the applicant with major depressive disorder with comorbid anxiety, post traumatic stress disorder, and pain disorder, and she queried whether he has post concussion syndrome.

17The second is a report dated July 2, 2015 from Dr. Martin Chepesiuk, who specializes in neurology/internal medicine. Dr. Chepesiuk found that the applicant could barely touch his knees while bending forward and had severe neck and back pain since his accident. It is not clear to me what expertise Dr. Chepesiuk possesses to give these findings much weight. Without submissions linking Dr. Chepesiuk’s expertise to this finding, I place minimal weight on it.

18The third is a report dated May 25, 2016 by Dr. Michael Olah, a family practitioner. The applicant has been Dr. Olah’s patient since June 24, 2015. This is four months after the motor vehicle accident. Dr. Olah found that the applicant suffers from chronic low back and neck pain, headaches, dizziness, memory changes, gastroesophageal reflux disease, anxiety and depression.

19The applicant has also provided affidavits from two of his daughters, both of whom appear to be adult-aged. The applicant’s daughters swear that the applicant was self-employed in the car repair and inspection business prior to the motor vehicle accident They further swear that the Applicant has difficulty going up and down the stairs, bending down to retrieve dropped items, and changing his clothes.

20The reports and affidavits mentioned above make other claims, and there are other medical reports submitted. I have summarized the findings of the most relevant inferences drawn from the applicant’s evidence. The applicant provided no submissions to guide me on what evidence he believed to be most important to his case.

TD’s evidence and submissions

21TD provided a multidisciplinary assessment report that was issued on March 31, 2016. The report consists of three assessments: an orthopaedic surgery assessment by Dr. Jacqueline Auguste, a psychology assessment by Cindi Goodfield, and the job site analysis referred to in paragraphs 13-14 that was conducted by Robert Bullard. The assessments all support the conclusion that the applicant does not suffer from a substantial inability to perform the essential tasks of his employment.

The conclusions drawn

22The onus is important in this case. If the applicant’s evidence and submissions fail to prove on a balance of probabilities that he suffers from a substantial inability to perform the essential tasks of his employment, the analysis is over. TD’s evidence is not relevant because the applicant has failed on his own to prove his case.

23In this case, I am not convinced on a balance of probabilities that the applicant is substantially unable to perform the essential tasks of his employment.

24The medical reports submitted by the applicant rest heavily upon his self-report of physical and psychological difficulties to the health practitioners. Unlike the literature arising from the multidisciplinary assessment report, the applicant’s medical reports do not describe at length objective methods of testing for an injury or impairment. The credibility of the applicant’s medical reports is strongly tied to the applicant’s credibility.

25TD casts significant doubt on the applicant’s credibility. TD commissioned surveillance on the applicant which was conducted on July 14, 18, and 20, 2016. The surveillance raises significant questions about the applicant’s credibility.

26Dr. Olah’s report states that the applicant is only able to walk 50-100 meters at a time, needs to use a cane, and needs help with his activities of daily living. This is a bleak picture of daily function. The surveillance shows quite a different picture. Surveillance shows the applicant attending, among other things, Costco and a recreation centre without visible discomfort – and without the use of a cane. The Applicant advised Dr. Chepesiuk and Dr. Auguste that he requires a cane to walk. The applicant was observed walking without a cane, and without visible difficulty, for all three days of surveillance.

27The Applicant’s remarks to Dr. Gooodfield cast strong doubts on his credibility. The applicant advised Dr. Goodfield, who, again, is a psychologist retained by TD, that he drives only when it is necessary and he worries about being struck again. The surveillance shows the applicant driving regularly.

28During the psychological assessment with Dr. Goodfield, the applicant walked at a slow pace with the use of a cane. The surveillance shows the applicant walking for long periods of time without a cane.

29The applicant described himself to Dr. Goodfield as “handicapped” and “helpless”. He also stated that good portions of his day were spent walking around his home or the street. On days where he was experiencing less pain he would go buy some bread and return home. The surveillance shows the applicant being active on a daily basis. Over the course of three days in which surveillance was conducted, the applicant attended a physiotherapy centre (twice), two Costco stores, an apartment building, a car shop, a delicatessen, a café, a pool (not as a swimmer), and a food store.

30The surveillance shows the applicant bending from the waist and arching his back in manners that one would not think possible considering the pain he describes to the examining medical professionals.

31There are a variety of reasons why the applicant’s self-report of his physical and psychological difficulties to medical professionals may not align with what is shown in the surveillance. For example, he may have had difficulty articulating himself and the surveillance does not capture pain that is experienced in his body and not visibility expressed. The difficulty that I have is the applicant’s complete failure to attempt to rehabilitate his credibility. The applicant’s Reply submissions consist of evidence on an unrelated issue. There were no accompanying submissions replying to TD’s effective challenge to his credibility and the surveillance evidence.

32I cannot speculate on the cause of apparent misalignment between the applicant’s self-report to medical professionals and what is shown by the surveillance. What I am left with is an applicant whose medical reports rest heavily upon his credibility, and his credibility is cast in significant doubt.

33The applicant has the onus of proving on a balance of probabilities that he is substantially unable to perform the essential tasks of his employment. After considering all of the evidence, I am unable to conclude that he has met his onus because I am unable to place sufficient weight on his self-reports. Moreover, there is insufficient objective medical evidence to compensate for the inability to place much weight on his self-reports.

34My conclusion is reinforced when I look at the content of the multidisciplinary assessment report submitted by TD. I accept the testing methods of Dr. Auguste, Dr. Goodfield, and Mr. Bullard. Their respective assessments further convince me that the Applicant has failed to prove his case on a balance of probabilities. The applicant’s claim for an IRB is dismissed.

Conclusion:

35The Applicant is not entitled to an income replacement benefit from April 4, 2016 to the date of this decision.