Tribunal File Number: 17-001971/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:
D.S.
Applicant
and
Security National Insurance Co.
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
For the Applicant: Stacy Koumarelas, Counsel
For the Respondent: Matus Averbuch, Counsel
HEARD: Written Hearing: August 23, 2017
Overview:
1The applicant, D.S. was involved in an accident on September 29, 2014, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The applicant’s claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
Issues in Dispute:
2The issues to be decided at this hearing are:
Is the applicant entitled to receive a weekly income replacement benefit in the amount of $62.76 per week for the period of May 1, 2015 to July 1, 2015?
Is the applicant entitled to interest on any overdue payment of benefits?
Result:
3The applicant is not entitled to income replacement benefits in the amount of $62.76 per week for the period of May 1, 2015 to July 1, 2015.
4As the applicant is not entitled to income replacement benefits, he is not entitled to interest.
5The respondent is not entitled to its costs for this proceeding.
ANALYSIS:
6The applicant bears the onus of proving that, on a balance of probabilities, he is entitled to an income replacement benefit (IRB) in the amount of $62.76 per week from May 1, 2015 to July 15, 2015.
7Section 5(1) of the Schedule sets out the test for entitlement of income replacement benefits. The applicant would be entitled to an income replacement benefit if he could establish, on a balance of probabilities, that he was employed at the time of the accident and, as a result of and within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of his employment.
8As there is no contention, between the parties, with respect to the applicant having been employed at the time of the accident, the dispute is narrowed to whether the applicant suffers a substantial inability to perform the essential tasks of his pre- accident employment.
9The applicant submitted a Disability Certificate (OCF-3), completed by Dr. Jafrudy, family physician, and dated October 29, 2014, to the respondent. Under part 5, Injury and Sequalae Information, Dr. Jafrudy indicates “neck strain”. Under Part 6, Disability Tests & Information, Dr. Jafrudy indicated that the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident. Dr. Jafrudy indicated the anticipated duration of the disability to be 5-8 weeks.
10The applicant submitted a self-completed Employer’s Confirmation Form (OCF-2) dated December 1, 2014. This OCF-2 indicated that the applicant was self- employed, doing construction at his masonry company, at the time of the accident. The last date worked at this employment is noted as the date of the motor vehicle accident. The essential tasks of the job are listed as “lifting, walking, standing – physical job”.
11Other than this OCF-2, and some notations that the applicant specifically was a mason/brick-layer, I have no detailed description of what exactly the applicant’s essential job tasks are.
12In addition to these documents, further income documents from 2013 were submitted to the respondent and the applicant’s IRBs were calculated.
13The applicant received IRBs in the amount of $125.52 per week, for the time period of October 7, 2014 to February 27, 2015 in the form of a lump sum of $1,300.03. The applicant received subsequent IRBs in the amount of $62.76 per week until the effective termination date of April 30, 2015.
14The applicant submits that he suffered the following injuries as a result of the accident:
C4-5 small osteochondral bar
C5-6 moderate sized osteochondral bar mildly indenting the cervical cord
Cervical spine strain
Possible C6-7 avulsion fracture
Interscapular strain
Left shoulder strain
Headaches
Concussion
Lower back pain
15The applicant further submits that he is unable to perform the essential duties of his own occupation, as a brick layer, due to ongoing neck, shoulder and back pain and numbness, which impair his mobility. He states that he has not returned to most of his pre-accident work duties.
16The applicant included medical records with his submissions, which were reviewed and considered in coming to this decision. I will be referring to specific medical records below.
17The applicant submitted an x-ray report of the cervical spine dated September 29, 2014, which indicated a small well-defined bony fragment at the C6-7 (lower neck) disc space level anteriorly. A CT scan of the same date showed a tiny well- corticated ossific density/fragment located anterior to the C6-7 intervertebral disc space (a bone formation in the lower-neck). It also notes that it is unlikely to represent an acute fracture but possibility of an old avulsion fracture, or simply represents a focus of ossification along the anterior longitudinal ligament. At C4-5 a small osteochondral bar (degenerative overgrowth of tissue at the mid-neck) is noted and at C5-6 there is a moderate sized osteochondral bar (degenerative overgrowth of tissue just beneath the middle of the neck) noted.
18These reports, although objective evidence of possible injuries, do not aid me in assessing whether the applicant suffers a substantial inability to perform the essential tasks of his employment for the period of May 1, 2015 to July 1, 2015. These reports do not provide me with evidence as to how these results are linked to the applicant’s functionality and his ability to work, particularly during the time period in dispute.
19The applicant submitted the clinical notes and records of Dr. Jafrudy, family physician. These records cover the timeframe from February 15, 2012 to July 6, 2017. The applicant did not point to any specific entries within Dr. Jafrudy’s records that would support entitlement for IRBs for the time period in dispute, other than the OCF-3. In review of Dr. Jafrudy’s records, there were no notations of consistent visits, by the applicant, regarding accident-related injuries.
20It appears that after completing the OCF-3 on October 29, 2014, Dr. Jafrudy did not see the applicant with regards to any accident- related injuries, until September 11, 2015, where he mentions the applicant’s neck issue and recommends therapy. The next note which indicates any accident-related issues is dated May 31, 2017 where Dr. Jafrudy notes headaches and sleeping difficulty for two years as well as neck pain.
21I do not have any records from Dr. Jafrudy which provide me with an understanding of the applicant’s condition or limitations with respect to his employment around the time the applicant is claiming IRBs.
22The applicant submitted the records from Don Valley Health & Wellness from October 2014 to November 2015. The applicant does not point me to any specific notes that address any difficulty or limitations the applicant suffers from, with respect to performing the essential tasks of his pre-accident employment. After reviewing these notes, it appears the applicant sought treatment for accident- related injuries for some time, however there is no evidence that would aid me in understanding any limitations with respect to returning to his pre-accident employment.
23The records from Midtown Family Chiropractic Neurological & Brain Based Care from December 2016 to January 20, 2017 were also submitted. Again, these records are not helpful to me in determining whether the applicant met the test for entitlement to IRBs for the time period in dispute. The records were for a time period after that which is in dispute in this hearing. They do not provide me with evidence of the applicant’s condition and any resulting issues which would prevent him from returning to work during this time.
24The respondent had a Functional Abilities Evaluation Report (FAE), completed by Dr. Karen Hudes, Chiropractor, dated April 20, 2015. Dr. Hudes notes that the applicant was employed full-time as a construction & masonry worker and that he has not returned to work since the accident due to pain. Dr. Hudes notes that the applicant reported that his doctor has told him to be off work currently.
25In her report, Dr. Hudes notes that the applicant reported pain in his neck and left shoulder during testing and that this was a limiting factor. She also notes that he was able to lift 10lbs and was able to carry 10lbs in both/either hands. Overall, Dr. Hudes notes that the applicant’s rating on the functional test was at the sedentary level.
26Dr. Hudes notes the observation that the applicant made sub-maximal efforts during the testing. She goes on to say that the results of the functional testing were deemed invalid due to the self-limited/sub-maximal effort by the applicant. Dr. Hudes goes on to say that the assessment is still considered reliable, however, the evaluation is not a true reflection of the applicant’s abilities due to the self-limiting behaviour and that this suggests that he might be capable of greater abilities.
27The applicant submits that the FAE assessor, Dr. Hudes, notes that the applicant rating on the functional test was at a sedentary level, which is not the level required for his physically demanding job. I am not persuaded by the applicant’s argument. As I mentioned above, Ms. Hudes noted that the results of the testing were deemed invalid due to the sub-maximal effort on the part of the applicant and that the results suggest the applicant may be capable of greater abilities as the results were not a true reflection of his capabilities.
28In addition to the above, I have not been provided with any objective evidence to support the applicant’s argument that he is unable to perform the essential tasks of his job.
29The Insurer’s Physiatry Assessment Report completed by Dr. Omar Khan, Physiatrist, dated April 20, 2015, notes that the applicant advised that he was a self-employed mason/brick layer and maintained this business full-time for 10 years. Dr. Khan also notes that the applicant states that he managed all the administrative and physical aspects of the position, with the occasional hiring of other brick layers for larger projects. The applicant reported that the physical demands of his job were heavy and that he has not worked at this position since completing a project he was involved in at the time of the accident.
30Dr. Khan diagnosed the applicant with cervical sprain/strain, myofascial left scapular strain and cervicogenic tension-type headaches. He also notes that the tingling in the applicant’s left hand, which he complains of occurring briefly in the morning, suggests carpal tunnel which is most likely related to his occupation.
31Dr. Khan found that there was no objective evidence of a musculoskeletal impairment that would render the applicant substantially unable to perform the essential tasks of his pre-accident employment.
32There is simply not enough contemporaneous medical evidence submitted by the applicant to support his entitlement to income replacement benefits. The applicant has not adduced sufficient medical evidence to show that he suffered a substantial inability to perform the essential tasks of his pre- accident employment from May 1, 2015 to July 1, 2015.
33It is also important to note that no employment, tax or financial documentation was submitted to show whether there was any loss of income sustained by the applicant in 2015. Apart from the business and tax documentation submitted for 2013, no updated records have been submitted, nor did the applicant point me to any evidence to show that there was indeed a loss of income for the time period in dispute. I have no evidence before me to show that the applicant did not work for the time period in dispute, other than the applicant’s own submission that he has been unable to return to work.
34Based on the totality of the evidence before me, I find the applicant has not proven, on a balance of probabilities that he suffered from a substantial inability to perform the essential tasks of his pre-accident employment as a brick layer for the period of May 1, 2015 to July 1, 2015. The applicant has not met his burden of proving his entitlement to IRBs and accordingly I find that the applicant is not entitled to IRBs for the time period in dispute.
Costs:
35In its submissions, the respondent sought costs for this proceeding.
36Although the Tribunal has the authority to award costs to a party, under rule 19.1 of the Tribunal’s Rules of Practice and Procedure, the respondent did not provide any evidence that the applicant acted unreasonably, frivolously, vexatiously or in bad faith, within this proceeding. Accordingly, I find that the respondent is not entitled to costs.
Order:
37The application is dismissed. The respondent is not entitled to costs.
Released: April 20, 2018
Meray Daoud
Adjudicator