J.Y. v. Aviva Insurance Canada, 2019 CanLII 34621

Citation: J.Y. vs. Aviva Insurance Company of Canada, 2018 ONLAT 17-009034/AABS

Date: March 27, 2019

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:

J.Y. Appellant(s)

and

Aviva Insurance Canada Respondent

AMENDED DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: J.Y., Applicant Fawad Siddiqui, Counsel

For the Respondent: Catherine Zingg, Counsel Anne Hurl, Representative George Anderson, student-at-law

Held in person: October 9-11, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on July 25, 2015, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2010 (“the Schedule”). He applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.

2The parties participated in a case conference but they were unable to resolve the issues in dispute between them.

3With the consent of the parties, a hearing in-person was scheduled for October 9, 10, 11, 2018.

ISSUES IN DISPUTE

4The issues in dispute were identified and agreed to as follows:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period April 27, 2016, to July 25, 2017?

ii. Is the applicant entitled to payments for the cost of examinations for assessments proposed by Hal Disability Management as follows: a. $2,200.00 for a worksite assessment proposed February 4, 2016; and b. $2,200.00 for a functional abilities evaluation proposed February 4, 2016?

iii. Is the applicant entitled to medical benefits proposed by Healthmax Physiotherapy as follows: a. $1,122.08 for a treatment plan dated September 26, 2016? b. $1,214.33 for a treatment plan dated May 27, 2016; and c. $2,073.09 for a treatment plan dated February 27, 2017?

iv. Is the applicant entitled to interest on any overdue payments of benefits?

RESULTS

5The applicant is not entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period April 27, 2016, to July 25, 2017.

6The applicant is not entitled for the costs of examinations for a worksite assessment and a functional abilities assessment, proposed by Hal Disability Management.

7The applicant is not entitled to $1,122.08, $1,214.33 and 2,073.09 for treatment plans submitted for physiotherapy.

BACKGROUND

8The applicant was turning right into a gas station when he was rear ended. He exited the car without assistance. The air bags did not deploy. The applicant went to the hospital and was given medication for his pain. He experienced pain in the lower back, neck, shoulders, and chest, from the seatbelt. He has participated in physiotherapy, massage therapy, chiropractic treatments and acupuncture since the accident. The applicant has been taking extra strength Tylenol, three times a day to assist him with the pain. The applicant had previous heart issues in 2012 and was on blood thinners. He also had severe obstructive sleep apnea.¹

9The applicant was working full time as a truck driver at the time of the accident driving from Toronto to Vancouver. Before each trip, he would have to inspect all the tires, brake line, lights, engine, trailer, secure the boxes of produce on the trailer etc. which required a lot of bending and reaching. The applicant indicated that he could not go back to work because of the neck pain (couldn’t move neck to look at side mirrors) and back pain.

10The applicant however indicated in his direct evidence that he went back to work as a truck driver after April 8, 2016. He received a visa to drive through the United States and drives with another driver. He does 3-4 hours and then sleeps the rest of the time. The trips are from Toronto to California and back. The maximum he drove was twelve hours, with breaks for the round trip.

11There was no medical evidence indicating that the applicant could not work. The applicant’s son gave evidence that he drives with his father on the trips now and that he does all of the required inspections for the truck and trailer. The applicant still has his AZ licence, which requires an annual medical to retain it. The applicant on cross examination admitted working full time in November /December 2015.

12Part of the applicant’s evidence were income tax returns showing that he earned income in 2014 ($10,000.00), 2015 ($10,000.00), 2016 ($16,500.00) working as a truck driver. The applicant claimed he earned $6,000.00 per month for 2014. He owned a company which was subcontracted to his employer. There was not enough evidence before the Tribunal relating to the corporate returns to see what expenses were deducted from the gross income to understand how the applicant’s net income for the years 2015-2016 was arrived at.

13Part of the respondent’s evidence was surveillance showing the applicant getting in and out of trucks, cars, and driving same with no physical issues evident. The applicant was also observed carrying an iron bar and canvas belts.²

MEDICAL EVIDENCE

14Dr. S. Iqbal, chiropractor, in his reports dated November 13, 2015, and December 3 2015 indicated that barriers to the applicant’s recovery were prolonged sitting, the applicant’s weight and his heart disease. The doctor also noted that his progress with current treatment was hindered by the applicant’s work schedule.³

15An MRI taken on January 21, 2016, showed a mild degenerative condition in the L5-S1 without nerve root impingement.⁴ This meant that the disc would not interfere with the applicant’s work.

16The report of Dr. A. Kopyto, a Family Medicine Doctor (IE) dated March 11, 2016, indicated that the applicant did not suffer a substantial inability to perform the essential tasks of a truck driver⁵. This was also confirmed by the doctor in an Addendum Report dated July 23, 2018. The applicant, in his evidence, stated that the doctor did not ask him about details of his job, including the inspections of the truck and trailer.

17Dr. Duong (OT) in his report (IE) dated March 3, 2016⁶ indicated that the applicant demonstrated some inconsistencies which called into question the applicant’s ability to accurately perceive, demonstrate, or report his functional tolerances.

18Dr. A. Syed, psychologist, in his report (IE) on March 15, 2016, reported that the applicant did not suffer any psychological distress that would result in the applicant suffering a substantial inability to perform his pre-accident employment.⁷

19Dr. Jon Mills, psychologist, in his report⁸ dated April 14, 2016 recommends that the applicant attend 15 sessions of psychotherapy, to deal with the symptoms of post- accident psychological impairment, which the applicant suffers from.

20Dr. Craig Rosenblatt, chiropractor, in his Functional Abilities Evaluation Report dated June 28, 2018, reported that the applicant indicated that he had not returned to work since the accident other than a five day trip in January 2018 where the applicant took a five day trip to California with another driver. Based on the subjective information from the applicant, he found that the applicant suffered a serious impairment of an important physical function preventing the applicant from performing his pre-accident work.⁹

21Dr. S. Brown, a pain specialist, in his report dated July 22, 2018¹⁰ stated that the applicant has Chronic Pain Syndrome. He also noted barriers to recovery for the applicant being his obesity, degenerative disc disease and sleep apnea.

ANALYSIS

Income Replacement Benefit

22The Schedule¹¹ requires an applicant, as a result of an accident, and within 104 weeks after the accident, to suffer a substantial inability to perform the essential tasks of the employment that he was engaged in pre- accident.

23The courts have held that a claimant must establish changes post- accident that prevent him or her from being continuously engaging, in substantially all of his or her pre-accident activities.¹²

24The evidence of the applicant and his son, along with the tax returns filed by the applicant, clearly show that the applicant was back working as a truck driver in November 2015. The applicant may not do the required truck and trailer inspections now, but he is able to function still as a truck driver. The surveillance documentation also shows no real impairments preventing the applicant from performing his duties as a truck driver, getting into and out of the truck and sitting.

25There are no medical reports indicating that the applicant cannot perform his duties as a truck driver. Dr. A. Kopyto indicates that there is no substantial inability to perform the essential tasks of a truck driver. The MRI shows no reason why the applicant could not function as a truck driver. The report of Dr. Duong questions the applicant’s own reporting of his functional tolerances.

26Based on the above, I find that the applicant has not met the requirements of the Schedule for an income replacement benefit.

Medical Benefits

Worksite Assessment

27The Schedule requires all medical and rehabilitation benefits to be reasonable and necessary¹³

28The applicant has already gone back to work as a truck driver, with limitations on the time he drives, on the long haul drives. It doesn’t therefore make any sense that more money be spent on workplace assessments as the applicant knows his own limitations.

29I therefore find that further assessments are not reasonable and necessary.

Functional Abilities Assessment

30There have been already two assessments relating to function(al) ability by Dr. A. Kopyto and Dr. Duong. The insurer’s surveillance report, the applicant’s own testimony about his returning to work as a truck driver, and the applicant’s son’s testimony about the applicant returning to work all relate to the applicant’s functional ability. This evidence shows that the applicant can function at working at his old job, with some limitations.

31I therefore find that further abilities assessments are not reasonable and necessary

32Section 44 insurer examinations (IE) were scheduled to take place on Monday December 5, 2016, and on Tuesday December 13, 2016. The applicant did not attend and therefore the claim cannot be considered. The Schedule requires that an insured must attend for any IE, before an insured can apply for benefits.¹⁴

33This treatment plan was for a back brace. There has been no medical evidence put before me that demonstrates that the applicant needs a back brace. I find that this back brace is not reasonable and necessary.

34This plan was for chiropractic treatment. The applicant failed to attend a scheduled IE on December 13, 2016. Since the applicant did not attend, the claim cannot be considered. The Schedule requires that an insured must attend for any IE, before an insured can apply for benefits.¹⁵ The applicant listed GMS as a collateral benefits provider on his Application for Accident Benefits. The applicant should submit his healthcare claims to the collateral carrier first, before he submits the claims to the respondent as required under the Insurance Act.¹⁶

CONCLUSION

35The applicant’s claims are dismissed.

Footnotes

1. 1Brief of Documents-3-Tab 10-z
2. 2Investigative report dated April 18, 2018 Brief of Documents 1-tab 5A
3. 3Reports of Dr. S. Iqbal dated November 13, 2015 and December 3 2015 Brief of documents 4-tab 16(F)
4. 4Brief of Documents Book 4-Tab 17-A
5. 5Report of Dr. A. Kopyto dated March 11 2016 Brief 3 of Document Brief tab11 C
6. 6Brief of Documents -3 Tab 11-A
7. 7Brief of documents 3, tab 11 d.
8. 8Report of Dr. Jon Mills dated April 14, 2016-Supplementary Brief of the Applicant 2-tab5
9. 9Report of Dr. Rosenblatt dated June 28, 2018 supplementary Brief of the applicant 2-tab 6
10. 10Report of Dr. Stephen Brown dated July 22, 2018-Supplementary Brief of Documents 2-Tab 7
11. 11Schedule sec 5, 6
12. 12Heath v Economical Mutual Insurance Company 2009 ONCA 391
13. 13Schedule sec 15, 16
14. 14Schedule Sec 55
15. 15Schedule Sec 55
16. 16Insurance Act s. 268(6)