17-002651 v Aviva General Insurance, 2018 CanLII 13150

17-002651 v Aviva General Insurance

Date: 2018-02-01 Tribunal File Number: 17-002651/AABS Case Name: 17-002651 v Aviva General Insurance

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

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

For the Applicant: Nader Fathi For the Respondent: Shivani Mehta, counsel

HEARD: Written Hearing: November 9, 2017

Overview

1The applicant was injured in a motor vehicle accident on September 5, 2015. He applied for an income replacement benefit (“IRB”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). Aviva Insurance Canada (“Aviva”) denied payment for the benefit. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service for the IRB’s payment.

Issue in Dispute:

2Is the applicant entitled to receive an income replacement benefit of $400.00 per week from March 12, 2016 to the date of this hearing?

Result:

3The applicant is not entitled to receive an IRB from March 12, 2016 to the date of this hearing because he has failed to prove that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. Specifically, the applicant has not proven (1) what his essential pre-accident employment tasks are; (2) which of those tasks he is unable to perform; and, (3) the extent to which the applicant is unable to perform those tasks.

Discussion

4At the outset, I must clarify the permissible scope of the hearing. The Tribunal’s Order for this hearing set the entitlement time period for entitlement as March 12, 2016 to date and ongoing. I am not permitted to determine ongoing or future entitlement because the applicant’s circumstances may change after the hearing. The proper time period for which entitlement will be determined is March 12, 2016 to the date of this hearing.

The law

5The test for entitlement to payment of an IRB is set out in s. 5(1) of the Schedule. In the applicant’s case, s. 5(1) provides that 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 as a factory worker. For analytical purposes, the inquiry can be divided into three steps:

• Was the applicant employed at the time of the accident;
• Causation; and
• Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?

6The third step is itself divisible into two questions. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of his employment?

Analysis

7The applicant is not entitled to an IRB. His application falters at the third step of analysis. I need answers to the following questions to grant the applicant entitlement to an IRB:

1. What are the essential tasks of the applicant’s pre-accident employment?
2. Which of those tasks is the applicant is unable to perform?
3. To what extent is the applicant unable to perform those tasks?

The applicant has unaddressed or failed to provide sufficient information to these questions.

What are the essential tasks of the applicant’s pre-accident employment?

8At the time of the accident the applicant was employed as a factory worker. In his written submissions, the applicant explains that he helped to move vats that held up to one thousand litres of liquid in them, working 40-hours per week. The applicant more generally characterizes this as heavy lifting. He submits that he stopped working three days after the accident as a result of his injuries.

9I am unable to determine what the applicant’s pre-accident employment tasks are. I know he moved heavy vats; that is one task. But what other tasks did he have, if any? Moreover, an employment task is relevant in this hearing because it informs how the applicant must function to perform the task. The applicant has not advised how he went about moving the vats. I do not know how what physical functions were required of him.

10Even if I knew what the applicant’s pre-accident employment tasks are, I am unable to determine which one of those is an essential task. In the circumstances of this case, it would be helpful to know what proportion of time the applicant spent on his different employment tasks. I find it difficult to believe that the applicant moved heavy vats around without a change in task for 40 hours each week.

Which of the essential tasks of the applicant’s employment is the applicant is unable to perform?

11I am unable to determine what essential pre-accident tasks the applicant is unable to perform. I know from the submissions that the applicant stopped working three days after his accident. This corresponds with four medical documents in evidence in this hearing.

12The first document comes from Dr. Gelman, a general practitioner. Dr. Gelman was retained by Aviva to examine the applicant in relation to his IRB claim. In a report dated February 23, 2016, Dr. Gelman concluded that accident likely caused a strain/sprain injury to the applicant’s lumbar spine and should heal within 8 to 12 weeks from the date of the accident. This suggests that the applicant suffers the most pain immediately following the accident – like on September 8, 2015 when he stopped working – and gets better as time passes.

13The second document comes from Dr. Girgoropoulos, a chiropractor. Dr. Girgoropoulos, conducted a chronic pain assessment² and indicated that the applicant suffers from chronic pain as a result of the accident.

14The third document comes from Dr. Vitelli, who in a Treatment Plan dated December 8 2015 indicated that the applicant experiences difficulties with work related activities.

15The fourth document comes from Promed Rehabilitation Clinic. The clinic’s notes and records document back pain following the accident.

16The difficulty with the applicant’s submission on this part of the s. 5(1) IRB test is that I do not know the specifics of why he stopped working on September 8. It is not enough that he believed that he could not continue to work. I need to know what tasks he could not perform and whether those tasks were essential. It could be that the applicant could not perform any of his essential pre-accident employment tasks. It could be that the applicant could perform some but not all of his essential pre-accident employment tasks. I am unable to make a determination one way or the other.

To what extent is the applicant unable to perform his pre-accident employment tasks?

17The applicant must prove the degree of his alleged inability to perform his essential pre-accident employment tasks. There is no basis to conclude that the applicant has a substantial inability to perform all of his essential pre-accident employment tasks beyond the fact that he stopped working three-days after his accident. While the applicant’s cessation of work is circumstantial evidence of a substantial inability to work, it is not enough to convince me on a balance of probabilities.

18The degree of inability to perform tasks is especially important in this case because the applicant seeks an IRB up until the date of this decision, which is more than 104 weeks since his accident. For an IRB beyond 104 weeks since his accident, the applicant must prove that he suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

Other submissions from the parties

19The parties provided submissions on issues that do not substantially factor into my decision. I address the submissions for completeness.

20Aviva provided evidence showing that the applicant was employed during the time period in which he claims for an IRB. Aviva seems to submit that the applicant’s employment disqualifies him from eligibility for an IRB.

21Employment does not disqualify an insured person from IRB eligibility. It reduces the amount of an IRB. Under s. 7(3)(a) of the Schedule, an insurer is entitled to deduct 70% gross of any employment received by the insured person during the period in which he or she is eligible to receive an IRB.

22Aviva also submitted surveillance evidence showing the applicant demonstrating a range of functional ability. Given the reasons for which I have made my decision, I do not need to consider this evidence.

23The applicant and Aviva disagreed on the validity of the applicant’s chronic pain diagnoses. Given the reasons for my decision, I do not need to decide this issue.

24The applicant sought costs in the final sentence of his submissions. This is a standalone issue that I consider separately from the IRB claim. The applicant did not provide an evidentiary basis or submissions for costs under Rule 19. The claim for costs is dismissed.

Conclusion:

25The applicant is not entitled to receive an IRB from March 12, 2016 to the date of this hearing. The applicant is not entitled to costs.

Footnotes

1. 1O. Reg. 34/10.
2. 2Pursuant to s. 25 of the Schedule.