18-000291 v. Aviva Insurance Canada, 2018 CanLII 115659

Licence Appeal Tribunal

Date: 2018-10-01 Tribunal File Number: 18-000291/AABS Case Name: 18-000291 v Aviva Insurance Canada

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: Robert Watt

APPEARANCES:

Counsel for the Applicant: Michael Rotondo
Counsel for the Respondent: Mohamed Hashim

HEARD: Licence Appeal Tribunal: July 4 and 16, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in an automobile accident on April 16, 2016, and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - effective September 1, 2010 (the "Schedule").

2When the respondent denied the applicant an income replacement benefit and two chiropractic treatment plans, the applicant submitted an application to the Licence Appeal Tribunal-Auto Accident Benefits Service (the "Tribunal").

3The parties participated in a case conference, but they were unable to resolve the issues in dispute between them.

4With the consent of the parties, an in-person hearing was scheduled for and heard on July 4, and 16, 2018.

ISSUES IN DISPUTE

5The issues in dispute as listed in the case conference order are as follows:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period April 23, 2016 to date and ongoing, denied by the respondent on September 20, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $2,819.67 for chiropractic services recommended by Physio Fix and Fitness in a treatment plan (OCF-18) submitted on April 26, 2017 and denied on June 28, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $5,358.54 for chiropractic services recommended by Physio Fix and Fitness in a treatment plan (OCF-18) submitted on July 18, 2017 and denied on July 18, 2017?

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

v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

6As noted below, at the start of the hearing, the parties, on agreement, limited the period in dispute to after the first 104 weeks. I find that the applicant is not entitled to an income replacement benefit after the first 104 weeks of disability.

7I find that the applicant is not entitled to medical benefits for chiropractic services as set out in issues (ii) and (iii) above.

8I find that the applicant is not entitled to interest as no benefits are owing.

9I find that the applicant is not entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits.

BACKGROUND

10The applicant was struck on the left side of her body in a parking lot by a vehicle on April 16, 2016, and she fell onto the parking lot. She was in Montreal, Quebec at the time, at a convention. The applicant was admitted to the hospital for observation and then released. She drove back home the next day.

11Back at home, she saw her family doctor, Dr. Benjamin, complaining of anxiety, panic attacks, poor sleep, and musculoskeletal pain (neck, low back, right knee and in the bilateral thumbs). He referred her to physiotherapy. The applicant, in her direct evidence, also stated that that she was suffering from micro blackouts, approximately 6-10 times per day.

12Prior to the accident, the applicant was an active Mary Kay director and salesperson and attended at public places to talk to strangers, as part of her marketing/sales strategy. She recruited new sales persons to work under herself, so that she would earn sales commissions from them as well. The applicant claims that the injuries from the accident prevent her from actively recruiting new salespersons and also new potential clients for Mary Kay.

13The applicant also owns a corporation, ACN, which sells, home essential services being energy products to online clients. The applicant claims that the accident injuries also interfere with her working in this job to sale to new customers.

14The tax returns and summary of the total income earned since the accident show that the applicant earned all her income from sales. Her commissions earned from both businesses show income earned as follows:

i. 2016 - $47,673.02;

ii. 2017 - $58,068.32; and

iii. 2018 (partial year) - $25,192.39.¹

15The applicant is the sole owner and a director of New Age Sales and Marketing Inc. She has directed that all of her income, other than rental income, which is earned through her corporation be distributed out to her as dividends.

16The applicant admitted vacationing in Alberta for two weeks in 2016, and going to her cottage for two separate long weekends, in 2017.

ANALYSIS

INCOME REPLACEMENT BENEFIT

17The issue before the tribunal is whether the applicant is entitled to an income replacement benefit after the first 104 weeks of disability.² The parties agreed that the first 104 weeks after the accident is not an issue.

18For periods after the first 104 weeks after disability, the Schedule requires the insured person to be suffering a complete inability to engage in employment or self-employment for which he or she is reasonably suited by experience, training or experience.³

19The applicant has the right to structure her financial affairs within the law, in whatever manner she chooses. However, the income received from her sales commissions are earned commissions from employment, which the applicant cannot reclassified as dividends, so as to maximize her benefit under the No-Fault Benefits Schedule. Gross employment income as defined in the Schedule means "salary, wages and other remuneration from employment" which would include commissions.⁴ Income earned includes active and passive income.⁵

20The Schedule also provides a process for deducting any earned income from any income replacement benefit. The applicant's income from commissions owed for past sales work done, and present sales work completed by those sale persons still working under her, would therefore be included in the calculations.

21A report dated June 15, 2018 was presented by Pinnacle Valuation Group on behalf of the applicant. The report made calculations as to earned income which calculation included business deductions for the years 2016, 2017, 2018 in the approximate amounts of $70,555.00, $62,326.00 and $54,000.00 respectively. Those deductions included costs for advertising, meetings, office expenses, travelling, vehicle expenses etc. If the applicant was working, then these would be legitimate expenses to be deducted.

22If the applicant was not working, then most of these expenses would not be proper deductions from her earned income. This would result in the applicant having earned income which would be set off against any income replacement benefit (if granted) with the net result of the income replacement benefit being nil.

23Alternatively, other than the self-reporting by the applicant of her inability to work because of her pain, mood, panic attacks etc., I find that there is no convincing medical evidence, to confirm that she is suffering a complete inability to engage in any employment.

24Dr. Marjan Saghatoleslami, a psychologist, conducted a section 44(IE) assessment, relating to the issue of an Income Replacement Benefit. In her report dated July 31, 2017⁶ she found that the applicant's symptom, experiencing somatic pain, did meet the DSM-5 criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

25At the same time, Dr. Saghatoleslami, found that the applicant did not suffer a substantial inability to perform the essential task of her employment. She confirmed these findings in her direct evidence and explained that they were not contradictory statements. She also recommended that the applicant participate in a brief course of evidenced based psychological intervention to help her develop effective pain management strategies, and to help improve her mood.

26I found the evidence of Dr. Saghatoleslami both on direct examination and on cross examination to be credible.

27Dr. Kashmat Khan, a physician, on a section 44 (IE) referral, also examined the applicant to assess the IRB issue. In his report dated July 31, 2017, he made the same finding as Dr. Saghatoleslami that the applicant did not suffer a substantial inability to perform the essential tasks of her employment.⁷

28The only other medical evidence given on behalf of the applicant was a report dated May 18, 2018 by Satvinder Chauhan RP (intermediate assessor) under the supervision of Dr. Bodnar (supervising clinical psychologist who never saw the applicant). The report did not contain any reference to any other medical reports/clinical notes, and records. The report indicated that from a psychological perspective, because of the physical pain affecting her mood, the applicant was not able to return to work and should receive more counselling.

29There was not enough evidence put forth as to the qualifications of Satvinder Chauhan. Dr. Saghatoleslami made the comment at the hearing that the intermediate assessor should have put all of the qualifications that the intermediate assessor had, in order to confirm that the intermediate assessor possessed the requisite skill and qualifications to make such an assessment.

30Mr. Danny Monk, a Kinesiologist, on a section 44(IE) referral, conducted a job site evaluation. In his report dated July 16, 2017, he noted that the applicant had returned to work on full duties and modified hours, and that she was off work for two months.⁸ The applicant doesn't agree with this statement of going back to work in his report. His report also indicated that the applicant had functional ability for climbing stairs, stooping, handling, sitting and standing. The applicant's strength abilities placed her within the light strength demand levels.

31The applicant's complaints of "micro blackouts" 6-10 times a day was not supported by any medical evidence. Her family doctor, Dr. Sameera Benjamen, made no recommendations for treatment or assessment for this medical complaint. The applicant's OCF-3 submitted on May 17, 2017, by her family doctor, did not include this medical issue as one of the injuries and the doctor under part 7 did not recommend any further examination or investigation.⁹ The diagnostic imaging of the applicant's head dated October 20, 2017 revealed normal findings.¹⁰

32Dr. Sameera Benjamen reports of November 24, 2017 and June 15, 2018 indicate that the applicant is unable to work in any capacity due to injuries sustained from the accident. The doctor however in her recent short report dated June 15, 2018, does not make reference to any updated medical reports, clinic notes, and records, and never saw the patient at the time of report. She recommends therapy to include chiropractic treatment, physiotherapy and counselling. She provides no detailed basis on which she analyses the applicant's inability to work, and no detailed basis for her recommendations.

33The law requires that the applicant try to mitigate her situation¹¹. This requires the applicant to seek work. There is no evidence before me to show what efforts that applicant made to find other work. Her evidence was that she wanted to find a job "where I could go online to show up". There has been no evidence that the applicant attempted to find this kind of a job.

34I prefer the reports of Dr. Saghatoleslami, Dr. Khan and Danny Monk which clearly show that the applicant does not have any physical or psychological issues that caused her to suffer a complete inability to perform the essential tasks of her employment. The diagnostic imaging of the applicant's head also revealed no abnormalities which would prevent her from performing the essential tasks of her employment.

35I have difficulty accepting Dr. Bodnar's report, as the report leaves out crucial information as to the qualifications of the intermediate assessor and what other medical reports/clinical notes and records that the intermediate assessor reviewed, if any, to come to the conclusions that the applicant was not able to return to work.

Medical Benefits

36Dr. Deborah Kopansky-Giles, a chiropractor, on a section 44(IE) referral, conducted an examination relating to the medical claims submitted by the applicant for further chiropractic treatments. She indicated that the injury was to soft tissue and therefore the medical claims submitted were not reasonable and necessary. She noted in her report that the bilateral thumbs appeared normal with full ranges of movement. The strength of the thumbs was good with excellent grip and thumb opposition bilaterally. Her report indicated that much of the applicant's reported subjective symptomatology was likely related to deconditioning related to inactivity. She recommended access to independent water based exercise for a period of 3-4 months.¹²

37There is no other evidence before the tribunal to show that the medical benefits – chiropractic treatment - sought are reasonable and necessary.

38I don't disagree with Dr. Saghatoleslami and Dr. Kopansky-Giles recommendations for psychological intervention and independent water based exercise to help the applicant deal with her moods and develop effective pain management, but treatment plans for those interventions are not before me. There is no doubt that the applicant has psychological problems because of the evidence of her moods. The evidence presented before the Tribunal on the issues in dispute in this application, however, does not meet the requirements of the Schedule, where the onus is on the applicant to prove, on a balance of probabilities.

Award

39There is no evidence before the Tribunal to show that the respondent has unreasonably withheld or delayed payments owed to the applicant.

ORDER

40The applicant's claim for an income replacement benefit in the amount of $400.00 per week for the period April 23, 2016 and ongoing is dismissed.

41The applicant's claims for medical benefits in the amounts of $2,819.67, $5,358.54 for chiropractic services are dismissed.

42The applicant's claim for interest on overdue benefits is dismissed.

43The applicant's claim for an award under Regulation 664 is dismissed.

Footnotes

1. 1Applicant's Brief of Documents Tabs 25-32
2. 2SABS Schedule Sec 6
3. 3SABS Schedule s.6
4. 4SABS Schedule Sec ( 4)1
5. 516-033197 v. Economical Mutual Insurance Company, 2018 CanLII 28266 (ONT LAT(Tribunal file Number 16-033197/AABS))
6. 6Applicant's Brief of Documents Tabs 19, 21
7. 7Applicant's Brief of Documents Tabs 19, 21
8. 8Applicant's Brief of Documents Tab17
9. 9Respondent's Brief of Documents Tab 3
10. 10Applicant's Brief Tab 8
11. 11P.M. v Royal Bank of Canada 16-001611/AABS Dec. 8, 2017
12. 12Applicant's Brief of Documents Tab 16