17-004389 v. Aviva General Insurance, 2018 CanLII 81886

17-004389 v Aviva General Insurance

Date: 2018-05-25 Tribunal File Number: 17-004389/AABS Case Name: 17-004389 v Aviva General Insurance

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

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the applicant: Davide V. Cortinovis, Counsel For the respondent: Jason R. Frost, Counsel

Written Hearing: February 15, 2018

OVERVIEW

1The applicant was injured in an automobile accident on August 10, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for benefits from the respondent, and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

3[The applicant] claimed income replacement benefits (“IRBs”), and Aviva (“the respondent”) paid IRBs from August 15, 2015 to November 15, 2016. The respondent stopped paying IRBs after insurer’s examinations (“IEs”) determined, in its view, that [the applicant] was no longer entitled to the benefit.

4The dispute at hand is whether [the applicant] meets the impairment threshold for the IRBs he claims.

DISPUTED BENEFITS

5The issues before me are:

1. Is the applicant entitled to receive an income replacement benefit (“IRB”) in the amount of $400.00 per week for the period November 15, 2015 to date and ongoing?
2. Is the applicant entitled to interest on any overdue payment of benefits?

FINDINGS

6The applicant is entitled to IRBs from November 2015 to date and ongoing. His appeal is allowed.

7The applicant is entitled to interest on overdue payments from the respondent, for the overdue amounts owing on the IRBs, at the prescribed rate.

REASONS

IRB Eligibility Criteria

8The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.

9The parties have not raised any issue of the amount of IRBs that may be payable to the applicant. Their submissions focus solely on whether or not the applicant meets inability criteria for IRBs.

10The Schedule, at s.5 and s.6, defines the level of inability which must be suffered by the applicant to be eligible for IRBs. This changes over time after the accident. For this case, the relevant requirements are:

i. Within 104 weeks after the accident, the insured person suffers a “substantial inability to perform the essential tasks of his or her pre-accident employment […] or self-employment”.

ii. “After the first 104 weeks of disability, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

11The applicant claimed both physical and psychological impairments prevent him from working. He asserts that he meets the eligibility criteria as the result of both physical and psychological inability criteria.

Does the applicant’s physical impairment meet the eligibility criteria for IRBs?

12I find that the applicant has not met the onus on him to prove that he meets the prescribed tests for IRBs on a physical basis.

13I find, on balance, that the respondent’s medical evidence on physical inability is more persuasive than the applicant’s evidence, for the following reasons:

i. The applicant made statements to psychological assessors Nancy Priftus, registered psychotherapist and Leanne Wagner, supervising psychological associate that he was functioning well until January 2017, when he was involved in a second motor vehicle accident. This is uncontested and unexplained by the applicant.

ii. The respondent’s multi-disciplinary insurer’s examination (IE), summary report October 13, 2016 is comprehensive and unchallenged in terms of physical impairment by the applicant. It concludes that the applicant does not suffer from a substantial inability to carry out the tasks of his pre-accident employment.

iii. The applicant’s primary evidence, a report by Dr. Michael West, orthopedic surgeon, dated March 23, 2016 was weakened by failing to reconcile the applicant’s daily physical functioning as the primary care-giver to three children with a conclusion that similar tasks and movements were impaired for the purposes of employment. He also failed to indicate whether observed limitations in the applicant’s functioning were or were not within normal expected ranges and failed to conduct investigative tests relevant to his conclusions about the applicant’s chronic pain.

14The respondent provided surveillance reports dated May 9, 2017 and October 13, 2017 which demonstrate the applicant’s ability to carry out physical tasks which prove that he can carry out the same or similar physical tasks that one would reasonably expect of a real estate agent. These include walking, sitting, standing, loading and unloading a car, carrying groceries, moving large garbage bins to the curb and carrying groceries.

15I find that the surveillance evidence supports a conclusion that the applicant’s physical injuries do not prevent him from working, because:

i. The applicant does not challenge the validity or relevance of the respondent’s surveillance reports with respect to his physical capabilities.

ii. The surveillance was conducted, at least in part, within the first 104-week period, and therefore speak to his eligibility during both prescribed periods.

iii. In his Reply submission, the applicant stresses that the surveillance reports cannot speak to his psychological impairments, without any comment on his alleged physical impairments. I read this as effectively conceding the respondent’s case on physical impairment.

16The applicant has not met the onus on him to prove his eligibility for IRBs as the result of physical impairment. Accordingly I will turn to determining whether or not the applicant’s psychological impairments meet the tests for IRBs.

Does the applicant’s psychological impairment meet the eligibility criteria for IRBs?

17The applicant has been the subject of numerous psychological assessments. All assessors on both sides reported high degrees of truthfulness on the applicant’s self-reporting with no evidence of malingering or other validity issues.

18The applicant supports his case for psychological impairment with:

i. a psychological report by Dr. Cheryl Miller, psychologist, dated November 17, 2015, diagnosing unspecified acute adjustment disorder, class 3 moderate impairment and noting that the applicant reported being unable to return to work due to loss of interest and motivation; and

ii. a psychological report by Dr. Bruce Cook, psychologist, dated May 2, 2017, diagnosing anxiety disorder unspecified and moderate depressive episode, single episode with somatic symptoms, and explaining that the applicant suffers from a substantial inability to perform the tasks of his pre-accident employment.

19Dr. Miller does not give any opinion with respect to the applicant’s ability to work. Her focus is on recommending treatment. She notes the applicant’s self-reporting about work but offers no comment on it. Her report has limited probative weight on the IRB issue.

20Dr. Cook’s report, by contrast, relates observed psychological problems to specific components of any sales job, such as dealing with the public, remembering details, concentration and difficulties with motivation. I give it considerable weight as evidence that the applicant’s psychological difficulties impair his ability to work.

21The respondent rebuts the applicant’s evidence with a psychological IE report by Dr. Amena Syed dated October 13, 2016, diagnosing the applicant with adjustment disorder with mixed anxiety and depressed mood, but concluding that this did not create a substantial inability to perform “his essential tasks of a sales agent”.

22Dr. Syed provides no analysis of the applicant’s occupational tasks and no explanation reconciling her diagnosis and findings (and those of others) with her conclusion on the applicant’s ability to work. As a result, I find it less persuasive than Dr. Cook’s report.

23On balance, I find that the applicant’s evidence with respect to his substantial inability to work due to psychological impairment is stronger than the respondent’s rebuttal evidence. This entitles him to an IRB for the 104 weeks following the accident – if he establishes that his psychological impairment was caused by the accident.

24My conclusion on the applicant’s eligibility for IRBs will now turn on causation: has the applicant met the onus on him to prove that his psychological impairment was caused by the accident?

Causation

25Section 5 of the Schedule provides that an insurer is liable to IRBs to an insured person who sustains an impairment as the result of an accident.

26The respondent contends that the applicant stopped working by April 2016 because his marriage had collapsed one year before the accident, leaving him the sole caregiver with 3 children under 14. Its theory is that personal problems were the cause of the applicant’s psychological difficulties, that he was struggling to cope with the impacts of his personal situation and that he stopped working to focus on his children.

27The applicant’s marital problems and breakdown are undenied and documented in the evidence. That he was struggling psychologically with the consequences of family disintegration, strife with his ex-partner and single parenting is also not denied; it also shows up in the clinical notes and records of his family physician Dr. Ng (various dates) and cardiologist Dr. Li (consult notes dated March 5, 2015), and is documented in detail in a psychological progress report by Dr. Svetlana Gabidulina dated May 12, 2016.

28The applicant does not make any argument on his personal issues as a cause of his impairments. He relies on medical reports, including the IE by Dr. Syed, that attribute his psychological impairment to the accident.

29The respondent’s submission is that the cause of impairment hasn’t been properly assessed because medical assessors were unaware of the applicant’s history of marital discord and the eventual disintegration of his marriage.

Impact of Non-Disclosure on Medical Evidence

30The applicant did not disclose his marital difficulties or eventual marriage breakdown to Dr. Miller, Dr. Cook or Dr. Syed. He does not explain his failure to disclose. All of the reports submitted in evidence indicate that he was asked questions that solicited information about his personal affairs, including family and marital relationships.

31The respondent argues that the applicant’s non-disclosure led assessors into an assumption that his psychological symptoms, problems and diagnoses were caused solely by the accident. It submits that this creates a gap in the applicant’s case and prevents him from meeting the onus on him to prove his entitlement to IRBs.

32I share the respondent’s concern about the applicant’s non-disclosure of significant facts that could be foreseen to be important to any assessment of mental health or psychological issues. The applicant should have disclosed.

33In considering my decision on this issue, I kept in mind that:

i. Scientific precision is not necessary to conclude that causation has been established on balance;

ii. A cause meeting the legal test need not be the predominant cause of the injury or harm giving rise to a claim.

34Despite the challenge of non-disclosure, I find that the evidence on balance supports the applicant’s case that the accident is a cause of his psychological impairment sufficient to establish his entitlement to IRBs. My reasons are:

i. All assessors accepted the accident as a cause of the impairments they observed and diagnosed. Clearly this causal relationship did not strike them as unusual or implausible.

ii. A psychological progress report by Dr. Svetlana Gabidulina dated May 12, 2016 did not directly address causation but the assessor did say that the accident significantly impacted the applicant’s “adaptive ability”. This is persuasive evidence of causation by an expert who was aware of the applicant’s domestic problems and situation.

iii. The respondent offers no evidence to persuade me that the causative impact of the applicant’s marital issues – assuming that there was any such impact -- would be so significant as to rule out the accident as a cause of impairment. It was open to the respondent to seek an addendum IE report or other expert opinion to that effect, but it did not.

35As the result of the foregoing analysis, I conclude that the applicant has met the onus on him to prove that his psychological impairments were caused by the accident. Accordingly, his appeal is allowed.

Is the applicant entitled to IRBs beyond the 104 week period?

36Accordingly, his appeal is allowed.

37The respondent states that there is no objective medical evidence supporting the applicant’s claim of a complete inability to work as defined in s.6(2((b) of the Schedule.

38The applicant’s argument is that the difference between the two tests are, in this case, effectively moot because:

i. He is 65 years old, has been a real estate agent for his entire career and very unlikely to be able to find employment as defined in the post-104 context (i.e. employment for which he is reasonably suited by education, training or experience).

ii. His objective psychological and cognitive impairments prevent him from working in the only field he knows – sales -- “in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity” and for earnings comparable to pre-accident levels. I am persuaded by the reasoning in cases cited by the applicant that this is an appropriate standard.²

39I find that the applicant is entitled to IRBs for the period beyond the 104 week period for the following reasons:

i. On balance, I find that the psychological impairments established by the applicant make him, in effect, completely unable to gain employment in any competitive sales field for which he is qualified, and at any level approaching pre-accident levels of income and status.

ii. The respondent’s specific arguments against post-104 entitlement focused on physical impairment and do not address the applicant’s psychological impairments.

iii. I reject the insurer’s argument that there is “no objective evidence” of complete inability in the applicant’s submissions. While it is true that the applicant’s medical reports speak to “substantial inability” it does not follow that such evidence cannot speak persuasively to the higher “complete inability” test.

iv. I also considered Dr. Gabidulina’s report, which spoke to the applicant’s adaptive abilities, which persuade me that considering alternative employment possibilities for the applicant would be unrealistic.

v. I share the reasoning in VHT v. Certas³, in which age and limited (in range) experience are key factors in determining an applicant’s post-104 entitlement, due to the unlikelihood that he could compete for suitable work.

Interest

40Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

41Having found that the applicant is entitled to the IRBs he claims in this dispute, the respondent is liable to pay interest on overdue payments, as the prescribed rate.

Costs

42Rule 19.1⁴ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

43The respondent seeks $500.00 in costs based on delays by the applicant in complying with document production orders from the Tribunal.

44While I support prompt compliance with Tribunal procedural orders, the evidence does not persuade me that in this case the applicant’s tardy productions met the threshold set out in Rule 19.1.

45The respondent’s cost request is denied.

CONCLUSIONS

46The applicant’s claim for IRBs from November 15, 2015 to date and ongoing is allowed.

47There is interest payable at the prescribed rate by the respondent for overdue IRB payments.

48The respondent’s cost request is denied.

Footnotes

1. 1O.Reg. 34/10
2. 2Burgess v. Pembridge (FSCO All-001160, June 14, 2013).
3. 3VHT v. Certas Home and Auto Insurance Company, 2017 CanLII 69444 (ON LAT)
4. 4All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)