M.A. v. Aviva Insurance Canada, 2018 CanLII 97842

M.A. v. Aviva Insurance Canada

Date: 2018-05-09 Tribunal File Number: 17-003889/AABS Case Name: 17-003889 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:

M.A.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

M.A., Applicant Paul Barrafato, Counsel Kasia Grzybowski, Paralegal

For the Respondent:

Karla Gnanasegaram, Counsel

Heard in writing and by teleconference on:

December 19, 2017

I. OVERVIEW

1The applicant was 32 years old when he was injured in an automobile accident on December 1, 2014. The car he was driving, and in which his eight month old son was a back seat passenger, was rear-ended by a transport truck, resulting in the trunk of the car being completely crushed in. The applicant received income replacement benefits from the respondent, Aviva Insurance Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2For twelve years, up until October 2014, the applicant was under contract to an oil company as the owner/operator of a gas station with a convenience store. He was on hiatus when the accident occurred. He also graduated with a degree in business administration in October 2013 from Brock University through part-time studies.

3After the accident, the applicant returned to work at a call center in June 2015 for a few months and then purchased a coffee shop in November 2015. He was involved in two other motor vehicle accidents. The second accident occurred on December 26, 2015 and the third on November 15, 2016.

4The respondent denied the applicant was entitled to income replacement benefits (IRBs”) beyond June 22, 2015, but continued to pay the applicant IRBs for another five and a half weeks. The respondent notified the applicant that it is seeking a repayment of IRBs in the amount of $1,600.00.

5The applicant does not dispute the respondent’s claim for a repayment of IRBs. He disputes the respondent’s denial of IRBs and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The applicant claims he is entitled to IRBs from June 23, 2015 to December 1, 2016.

II. ISSUES IN DISPUTE

6The issues that I must determine are as follows:

a) Whether the applicant is entitled to IRBs at the rate of $295.00 per week from June 23, 2015 to December 1, 2016?

b) Whether the respondent is entitled to a repayment of IRBs in the amount of $1,600.00?

c) Whether the applicant is entitled to interest on any overdue payment?

III. RESULT

7I find that the applicant is entitled to IRBs for the period from June 23, 2015 to December 1, 2016, minus 70% of his gross income earned during the period.

8I find that the respondent is entitled to a repayment of IRBs, not because they were paid in error, but because 70% of the applicant’s employment income is to be deducted from the IRB.

9The applicant is entitled to interest on the overdue IRBs.

IV. ANALYSIS

(a) Entitlement to IRBs

10The applicant does not have to have been employed at the time of the accident to be entitled to IRBs as long he was employed or self-employed for at least 26 weeks during the 52 weeks before the accident.² Under s.5 of the Schedule, the respondent is required to pay IRBs to the applicant if, as a result of and within 104 weeks after the accident, he suffers a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident. The applicant must prove he meets the test for entitlement on a balance of probabilities. Under the Schedule, the applicant may return to modified duties including reduced hours and still be entitled to IRBs if he is substantially unable to perform the essential tasks of his pre-accident occupation.³ I agree with the reasoning of Adjudicator Sewrattan in Applicant v. Old Republic Insurance Company (16-000179, October 17, 2016) in which he determined that that it is not merely the fact of being able to perform a job task that matters in the IRB test. A worker must also be able to perform the tasks for the period of time required by their position.⁴

11There is no dispute that the applicant was self-employed for 26 out of the 52 weeks before the accident as an owner/operator of a gas station and convenience store.

12Based on the applicant’s testimony and the reports from the insurer’s examination (“IE”) assessments, I find that his essential tasks as an owner/operator of a gas station and convenience store were as follows:

i. cleaning, including cleaning the display shelves, which required bending to reach the lower shelves;

ii. handling merchandise from 30 to 40 pounds and stocking shelves in accordance with the franchise requirements;

iii. shoveling and clearing snow;

iv. managing the finances and bookkeeping;

v. customer service;

vi. scheduling staff;

vii. training employees;

viii. filling orders;

ix. washing the touchless car wash to remove the residue; and

x. data entry.

13The applicant’s evidence was that he worked at the gas station about 50 to 60 hours per week. He was on his feet about 8 hours per day and spent about 20% of his time or 10 to 15 hours per week in the back office doing paperwork and data entry.

14The applicant purchased a coffee shop in November 2015. I accept both the applicant’s and the respondent’s submissions that the essential tasks of the applicant’s responsibilities at the coffee shop were almost the same as his essential tasks at the gas station.

15I find from the fact that the respondent initially paid the applicant an IRB, there is no dispute that the applicant suffered an impairment from the accident and suffered a substantial inability to perform the essential tasks of his pre-accident employment within 104 weeks of the accident. The dispute between the parties is whether, from June 22, 2015 to December 1, 2016, the applicant continued to suffer a substantial inability to perform the essential tasks of an owner/operator of a gas station and convenience store because of his accident injuries. The onus is on the applicant to prove that he did.

16The applicant submits he is was unable to perform the essential tasks of his pre-accident occupation after June 22, 2015, because he has headaches, poor concentration and poor memory that interferes with his ability to perform his office tasks; fatigue that interferes with his ability to work 50 to 60 hours; anxiety, angry outbursts, poor sleep, and low mood that often prevent him from providing customer service; low back pain, neck pain, fatigue, and numbness in his left foot that prevent him from sitting and standing for more than 20 minutes, walking more than 30 minutes at a time, lifting more than 10 pounds, or bending; and pain in his left hand and left elbow that make reaching difficult and that prevent him from lifting more than 10 pounds. He testified that because of his complaints, he is only able to work 25 hours per week at the coffee shop. I accept the applicant’s evidence that these complaints were caused by the accident and I find that they amount to a substantial inability to engage in the essential tasks of a gas station owner/operator for the following reasons.

17I find the applicant sustained musculoligamentous strain injuries from the accident to his neck, right shoulder, and back as diagnosed by Dr. Allan Kopyto, a general practitioner who conducted an IE for the respondent. He also suffered from an Adjustment Disorder with Depressed Mood as well as driving-related anxiety from the accident diagnosed by Dr. Alfonso Marino, a psychologist who conducted an IE on June 4, 2015, and Dr. Irina Skladman, psychiatrist, in her report dated July 5, 2016. The applicant was also diagnosed with chronic irritation on the nerve root, more likely at L5, by Dr. Seyed H. Hosseini, physiatrist, in his report dated July 16, 2015, based on the results of the applicant’s nerve conduction studies.

18There is no indication in the medical records of the applicant’s family physician, Dr. Michelle Barrington, or of the Stonechurch Family Health Centre records that the applicant had any low back, neck or shoulder complaints before the accident. Nor was the applicant’s evidence that these complaints arose only after the accident challenged. In fact, the respondent’s IE assessor, Dr. Kopyto, stated that the applicant’s subjective complaints were consistent with his diagnosis.

19Just two weeks before the accident the applicant complained to Heather Frey, a nurse practitioner at the clinic he attended, of fatigue for years and depressed mood. The applicant explained that his complaints arose from disagreements he had with his wife over his use of marijuana. I accept the applicant’s explanation because it is uncontested and there was no reason provided in any of the documents or submissions to disbelieve the applicant. In fact, the respondent’s psychological expert, Dr. Marino, reported that, for the most part, the applicant’s responses on psychometric testing were valid, indicating that he did not misrepresent or exaggerate his complaints. Dr. Marino concluded that, from a psychological perspective, the applicant’s subjective complaints were consistent with the clinical findings.

20Dr. Kopyto also diagnosed the applicant with post-traumatic headaches that had resolved. The applicant disputes that his headaches resolved and relies on a disability certificate prepared by Dr. Barrington, his family physician, dated January 7, 2015. This reference to headaches occurs before the IE and therefore does not assist the applicant with his submissions. The only other complaints of headache after the IEs in May 2015 were recorded in a clinical note dated April 1, 2016, or after the applicant had been involved in a second accident. I do not accept the applicant’s submission that his complaint of headache almost a year after he advised the IE assessors that his headaches no longer bothered him is related to this accident as the temporal relationship is too remote. Further, the applicant was involved in a second accident on December 26, 2015 that was reported by Colleen O’Neill, an occupational therapist, in her April 1, 2016 clinical note as even worse than the first accident.

21The respondent relies on the multidisciplinary report dated June 12, 2015 of its IE assessors, Dr. Allan Kopyto, general practitioner, and Dr. Alfonso Marino, psychologist. While I accept the diagnosis of both Dr. Kopyto and Dr. Marino of the injuries sustained by the applicant from the accident, I give little weight to their opinions that the applicant does not meet the test for entitlement to IRBs. Dr. Kopyto provided an opinion that “a disability does not presently exist as a result of any MVA related impairment that would cause the claimant to suffer a substantial inability to perform the essential tasks of his pre-accident employment.” However, this is not the test for entitlement to IRBs. There is no requirement under the Schedule for an insured person to have a disability as a result of the impairment. Further, Dr. Kopyto found that the applicant’s complaints, which he stated prevented him from performing the essential tasks of an owner/operator of a gas station and convenience store, were consistent with his clinical findings. Dr. Kopyto was not provided with a copy of Dr. Roger’s OCF-3 Disability Certificate dated August 20, 2015 or the attached nerve conduction study by Dr. Hosseini that showed the applicant has a nerve root impingement. Dr. Kopyto did not address how the applicant’s fatigue and pain have limited the number of hours he is able to work to less than half the time he worked before the accident.

22Dr. Marino was asked whether a disability presently exists as a result of any MVA related impairment that would cause the applicant to suffer a substantial inability to perform the essential tasks of his pre-accident employment. Although Dr. Marino answered “no” to the question, he also provided his opinion that the applicant did not meet the proper test for entitlement to IRBs. However, Dr. Marino stated that the applicant’s complaints were consistent with his diagnosis of Adjustment Disorder with Depressed Mood as well as driving-related anxiety. Those complaints included dizziness, social withdrawal, fatigue, concentration and cognitive difficulties. Yet, Dr. Marino did not provide any explanation or discussion of how those complaints did not substantially affect the applicant’s ability to interact with customers, do the banking, accounts, scheduling and ordering. Dr. Marino’s opinion appears to be based on the information he had that the applicant was going to commence full-time employment at a call center on June 15, 2015. However, the applicant was unable to continue working at the call center after August 12, 2015⁵ because of his accident impairments. He had to deal with angry callers, which increased his anxiety, was unable to sit all day, took too many breaks, and testified that his pain prevented him from providing good customer service. Therefore, he purchased the café in November 2015 as he thought the café would allow him to work while accommodating his impairments.

23Neither Dr. Kopyto nor Dr. Marino reassessed the applicant after Dr. Roger’s submitted his OCF-3 disability certificate and after the applicant’s failed attempt to work at the call center. I find that the applicant’s inability to work even half of the hours he worked pre-accident because of his accident impairments amounts to a substantial inability to engage in the essential tasks of his pre-accident employment. For these reasons, I find that the applicant has proven on a balance of probabilities that he sustained impairments as a result of the accident and suffered a substantial inability to perform the essential tasks of an owner/operator of a gas station and convenience store from June 23, 2015 to December 1, 2016.

(b) Repayment of IRBs

24Under s.52 of the Schedule, the applicant is required to repay the respondent IRBs if the respondent paid the IRBs to the applicant in error and the respondent gave the applicant notice of the amount to be repaid within twelve months of the overpayment. The respondent claims the repayment of IRBs because it continued to pay IRBs for another five and a half weeks after June 22, 2015. The respondent submits that the IRBs were paid in error because the applicant was no longer entitled to IRBs after June 22, 2015.

25There is no issue that the respondent’s notice requesting the repayment was sent within 12 months of the respondent’s payment of IRBs in compliance with the Schedule. The applicant does not dispute there was an overpayment, but disputes the reasons for the overpayment and the amount.

26I do not accept the respondent’s submission that the overpayment was made in error because the applicant was not entitled to IRBs after June 22, 2015, as I have found he was entitled. However, I find that there was an overpayment made because the applicant was earning employment income during the five and a half week period after June 22, 2015 that should have been deducted from the IRBs. The respondent is entitled to deduct 70% of the applicant’s gross post-accident employment earnings from the IRBs payable.⁶ The applicant earned $2,018.66 while at the call center for almost two months. However, the period of overpayment is for five weeks and I do not have evidence of what the applicant’s income was during that five week period. Therefore, I am unable to determine how much of the IRB per week is payable after deduction of 70% of the applicant’s gross income for the five and a half weeks. If the parties are unable to agree on the calculation, I remain seized of the issue and will accept further evidence on the applicant’s weekly earnings at the call center in order to determine how much of an overpayment of IRBs was made.

(c) Interest

27The applicant is entitled to interest on the IRBs payable from June 23, 2015 to December 1, 2016. If the parties are unable to agree on the amount of interest payable, I remain seized of the issue and will accept further submissions on the interest.

V. DETERMINATION AND ORDER

28The applicant is entitled to IRBs for the period from June 23, 2015 to December 1, 2016 at the rate of $295.00 per week minus 70% of his gross income earned during the period.

29I find that the respondent is entitled to a repayment of IRBs, for the amount paid to the applicant in excess of $295.00 per week minus 70% of his gross income earned during the five and a half week period after June 22, 2015.

30The applicant is entitled to interest on the overdue IRBs.

31If the parties are unable to agree on the amount of IRBs to be repaid to the respondent or on the amount of interest the respondent is required to pay on the IRBs owed within 10 business days of the release of this decision, they may serve and file further submissions and evidence to me in writing on the amount of IRBs to be repaid and/ or the interest payable on the IRBs owed to the applicant within 30 days of the release of this decision.

Footnotes

1. 1O. Reg. 34/10.
2. 2See s. 5(1)1(ii)A of the Schedule.
3. 3Section 7(3)(a) of the Schedule allows an insurer to deduct 70% of an insured person’s income received from post-accident employment during the period in which the insured is eligible to receive an IRB. Under s. 11 of the Schedule, an insured person may return to work at any time during the 104 weeks for which he or she is receiving IRBs without affecting his or her entitlement to IRBs if the insured person is unable to continue working because of the accident.
4. 4Applicant v. Old Republic Insurance Company, (October 17, 2016) CanLII 73692 (ON LAT) varied on reconsideration on the award of future IRBs in 16-000179 v Old Republic Insurance Company (December 2, 2016) CanLII 93137 (ON LAT).
5. 5Dr. Gemma Roger’s clinical note dated August 20, 2015 notes that the applicant stopped working at the call center on August 12, 2015.
6. 6See s. 7(3)(a) of the Schedule.