Tribunal File Number: 17-003342/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.E.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Jeffrey Shapiro
APPEARANCES:
For the applicant: Darryl Singer, Counsel
David Carranza, Paralegal
For the respondent: Emma Duggan, Counsel
Heard: In-Person October 30, 2017 and Written Submissions Completed on November 24, 2017
Overview
1Mr. E was injured in a motor vehicle accident on October 8, 2016. He applied for and received insurance benefits from Aviva Insurance Canada under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2Mr. E initially returned to his employment, but claims he could not continue, and thus he is entitled to an income replacement benefit (IRB) from March 31, 2017 forward. Aviva disagreed and denied that benefit. Mr. E appealed to this Tribunal.
3An in-person hearing on that dispute was held before me, with the parties providing closing statements in writing.1 The applicant and his family doctor testified on his behalf, while the insurer called an orthopedic surgeon and psychologist who had performed independent examinations (IEs) of Mr. E. The parties agree to the general timeline and law, but dispute the interpretation of key events.
4After considering the evidence, I conclude that the applicant does not suffer a “substantial inability” to perform his employment and is not entitled to the benefit.
Issues
5The issues I must decide are:
Is the applicant entitled to payment of an income replacement benefit in the amount of $400.00 per week from March 31, 2017 to date and ongoing?2
If so, is the applicant entitled to interest for the overdue payment of benefits?
Result
6The applicant is not entitled to an IRB. Thus, no interest is due.
Position of the Parties
7Mr. E submits that among other injuries, he suffered ongoing impairments to his neck, back, and shoulders from the accident. Although he initially managed to return to his pre-accident position of a cable repair technician on modified duties, he was unable to continue due to his accident related injuries – particularly his back injury – causing him to lose his job. His inability is supported by his family doctor. He contends that his prior back injury had healed prior to the accident, and that his current back pain is limited to the accident.
8Mr. E further submits he should not be penalized for his “fortitude” in working through pain to support his family. While he is now receiving Employment Insurance (EI) benefits which require him to be able to work, and he admitted that if he was offered a job he would go back to work, he submits that doesn’t mean he’s properly able to do so - but rather reflects his responsibility to support his family.
9Aviva’s main submission is that Mr. E, his doctor and his claim lack credibility. Mr. E would have continued working had he not been terminated. IEs conclude that he is not impaired. His medical evidence is subjective and follows a pattern of inconsistent explanations during and about past events – including what Aviva describes as “a documented history of…unexcused absences from work, and…retroactively seeking medical reasons to support benefits claims”.
Background
10To understand the parties’ positions, a brief timeline is helpful. To start, Mr. E had a series of prior medical issues or injures, including an August 2010 motor vehicle accident where he injured his back; July 2013, July 2015 and September 8, 2016 workplace incidents; and other medical conditions. There are conflicting accounts if his back injuries had fully healed at the time of the accident.
11When this accident occurred on October 8, 2016, Mr. E was off work receiving WSIB benefits due to the September 8, 2016 incident, a hand injury. The WSIB benefits ended in December. Mr. E used some vacation-time, and then returned to work on December 29. The parties dispute if he returned on modified duties.
12A key event occurred on Friday, March 10, 2017. Mr. E argues he called in sick related to the accident.
13On Monday, March 13, 2017, Mr. E attended at his family doctor for a pre- scheduled check-up, and on March 14, 2017, he returned to work. On March 2