S.M. v. Aviva General Insurance Company, 2019 CanLII 63371

Licence Appeal Tribunal

Citation: S.M. vs. Aviva General Insurance Company, 2019 ONLAT 18-003786/AABS

Date: May 28, 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:

S.M. Appellant(s)

and

Aviva General Insurance Company Respondent

AMENDED DECISION

PANEL: Robert Watt

APPEARANCES:

For the Applicant: S.M., Applicant Aliza Karoly, Counsel

For the Respondent: Amanda Fowler/Monica Pathak, Counsel Natatasha Vujovic, Claims Adjuster

HEARD: In Person on: January 29-31, February 1 and 20, 2019

OVERVIEW

1The applicant, 40 years of age, was injured in an automobile accident on July 15, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2010 ("the Schedule").

2The applicant filed an application before the Licence Appeal Tribunal-Automobile Accident Benefits Service (the "Tribunal") on April 30, 2018.

3A case conference was heard on July 23, 2018, and an in person hearing was set for January 29-31 and February 1 and 20, 2019.

4The applicant was sitting in the back of a car when it was rear ended. The car was a write off. The applicant's right knee hit the back of the driver's seat. The applicant was not sure if he hit his head when the car was rear ended. He had blurred vision in his right eye with some swelling in the same area. The applicant was on his way to go fishing with friends. He continued on to his destination but did no fishing. When he returned home, he saw his family doctor, Dr. M. Rajani who put him on Tylenol 3 and recommended him for physiotherapy.

5The respondent's position is that the applicant's injuries do not result in either a substantial inability to return to pre-accident work or a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. The respondent did pay approximately $24,000.00 in income replacement benefits from July 22, 2016 to September 5, 2017, when they stopped paying on the grounds that the applicant no longer met the criteria under the Schedule for benefits.

ISSUES

6The issues were agreed to as follows:

a. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week ongoing from September 6, 2017 to date and ongoing?

b. Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld the payments of benefits?

c. Is the applicant entitled to receive interest on the overdue amounts?

RESULTS

7I find that the applicant does not meet the requirements of the Schedule to be paid an income replacement benefit September 6, 2017 to date and ongoing.

8I find that the applicant is not entitled to receive an award under Ontario Regulation 664.

9I find that the applicant is not entitled to interest because no benefits were owing.

BACKGROUND AND ANALYSIS

BACKGROUND

10The 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.

11The Schedule, at s.5 and s.6, defines the level of impairment which must be suffered by the applicant to be eligible for IRBs. The test 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."

Temporary Return to Work

12Section 11 of the Schedule prescribes that a person receiving an IRB may return to work or start new work or self-employment without affecting his or her entitlement to resume receiving IRBs if he or she is unable to continue working as a result of the accident. This only applies to the period during the first 104 weeks after receiving the IRB.

[13] At the time of the accident, the applicant worked as a supervisor/painter interior finisher, in the industrial, commercial and residential custom homes markets. This was a family business. His job included the following tasks: i) some plumbing and electrical work when he painted bathrooms, kitchens etc; ii) removing fixtures; iii) moving around furniture when painting; iv) setting up scaffolding; and v) going up and down ladders carrying paint and materials that required balancing.

His job required him to look up and down and sideways, using his neck muscles. The applicant's position is that as a result of the accident, he has chronic pain in his neck, mid back, right shoulder, and right knee, which prevents him from lifting, going up and down ladders, balancing, and doing the pre-accident work. He is experiencing some dizziness which also prevents him from going up and down ladders to paint walls and ceilings. The applicant has not returned to paid work since the accident.

14After the accident, the applicant did return to two job sites to give advice, but was not paid nor did he do any physical work. He did attend for a day at his sister's dental clinic and did painting, removal of doors, cutting trim, and completing interior work. A surveillance video submitted into evidence by the respondent showed the applicant at the dental clinic working, going up and down a ladder, painting, and bending to complete interior finishing work. The applicant's testimony was that it took him 7 hours to do what should have been completed in an hour and he took two Tylenol every three hours to deal with his pain.

15Before the accident, the applicant would go to the gym three to four times a week, did his own work on his car, went out socially and to the movies, did handyman work around the house and helped with the housekeeping chores. After the accident his evidence was that he was restricted in all aspects of his living, because of the pain in his neck, shoulders, and back. He continues to feel pressure in his head, dizziness when he wakes up, headaches and pain in his neck when he moves his head around. His right shoulder gets inflamed when he uses his right arm to carry laundry as an example. He has problems walking up the stairs and testified that he wouldn't be able to go up and down ladders.

16The applicant saw Dr. Rabinovitch, an ophthalmologist on August 9, 2016. Dr. Rabinovitch's report indicated that there was no damage to the applicant's right eye as a result of the accident.¹

17Dr. T. Henriques, a physical medicine and rehabilitation doctor on an IE assessment on December 16, 2016, found that the applicant had a WAD II mild impairment in the range of motion, normal neurological examination and negative nerve tension testing; lumbosacral spine sprain /strain but no impairment in range of motion; right knee strain and possible right pes anserine bursitis but no impairment in range of motion. Dr. Henriques' conclusion was that the applicant does have an impairment in his ability to perform essential tasks.²

18There is an issue of whether the applicant hit his head in the accident that might relate to the applicant's complaints of dizziness when he wakes up, and headaches that he experiences. The applicant gave evidence that he can't remember whether he hit his head or not. None of the doctor reports of Dr. K. Chan, Orthopaedic Surgeon,³ and Dr. Godfrey's Physical Medical & Rehabilitation, make any mention of the applicant indicating that he hit his head as a result of the accident.⁴ The report of Dr. Jim Getsos, chiropractor, on an IE Functional Abilities Evaluation indicated that he was told by the applicant that the applicant did not hit his head as a result of the accident.⁵ The report of Dr. Ato Sekyi-Otu Orthopaedic surgeon (IE) does not indicate that the applicant hit his head,⁶ Dr. D. Borrett in his notes dated November 26, 2018, noted that the applicant indicated that he did not hit his head as a result of the accident.⁷ He noted that there were no neurological injuries.

19On April 29, 2017, the applicant had a C.T. scan of his head by radiologist Dr. N. Ganguli.⁸ The scan showed everything as being normal. On September 12, 2018, the applicant saw Dr. Katyal an ear/nose/throat specialist who found that everything was normal.

20A worksite assessment report dated September 28, 2018 assessed the applicant with myofascial injury to the neck, right shoulder, and lower back, right leg, hip and knee strain.⁹ A Workplace Demands Analysis provided by CanAssess (IE) indicated that the applicant's job was classified in the Medium Strength Category.¹⁰ The OCF-3 dated August 12, 2016, sent in by the applicant's family doctor indicated that the applicant suffered from cervical strain, right shoulder strain, thoracic lumbar strain right hip strain, and contusion on the right knee.

21The applicant has seen different specialists that his family doctor Dr. M. Rajani sent him to. He saw Dr. Haight, an ear eye throat specialist for his dizziness and was diagnosed with vertigo imbalance in his ear. The report did not attribute this to the accident. The applicant saw Dr. Rockman a psychologist, who assessed him with Major Depressive disorder, generalized anxiety and Somatic Symptom Disorder and recommended psychological intervention.¹¹ This doctor noted that the applicant may not have answered in a completely forthright manner, and exaggerated certain problems.

22The applicant saw Dr. T. Chan an orthopaedic surgeon on November 23, 2017, and on December 11, 2018. Dr. Chan's report of November 23, 2017 indicated that there was no pain on full flexion of applicant's right knee. The report stated that the applicant had regained full range of movement of his neck and shoulders but questioned whether the applicant could tolerate "persistent overhead use of his upper extremity on an eight hour day basis". The report concluded that the applicant was still disabled to return to his pre accident work.¹² Dr. Chan saw the applicant again on December 11, 2018 where the applicant still complained of neck pain in right shoulder and mild back pain. The doctor confirmed his previous findings that the applicant can't use his neck in an unrestricted fashion, is unable to squat or kneel and is unable to perform repetitive bending and twisting activities with his lower back.¹³ He found that the applicant had developed a chronic pain disorder. The applicant admitted that he did not advise Dr. Chan of his return to work on March 2, 2017. Dr. Chan admitted that he was not a specialist in chronic pain.

23The applicant saw Dr. Ato Sekyi-Out, Orthopaedic Surgeon for an IE on July 26, 2017. He found no impairments to the applicant retuning to pre-accident job tasks at regular hours and regular duties. His report indicated that he found the applicant was pain focused and self-limiting. Dr. Sekyi-Out found discrepancies with the tests and what he actually observed, relating to neck and low back pain motion of the cervical spine, active and passive motion of his shoulders, straight leg raising in a sitting and supine position.

24The applicant had x-rays on his spine and right hip in July, 2016. Dr. A. Lata's report indicated that the applicant's alignment and the bones and joints of the right hip were normal.¹⁴ Dr. Lata's further report on August 2, 2016 came to the same conclusion as his earlier report and also stated that there was no visible soft tissue abnormality. His report dated September 28, 2016 indicated that the right knee was normal.¹⁵ Dr Charles Godfrey in his report dated September 27, 2017, reported full range of movement in the cervical spine, no distress with the head tilted to the right, normal range of movement of the femoro-accetabular joint bilaterally and no decrease in sensation on examination of the legs. He recommended more physical therapy to the applicant by taking an Aquafit exercise program.

25The applicant was under surveillance on March 2, 2017. He was observed assisting other males to unload painting equipment at the head office for the Regional Municipality of Halton Hills. The applicant's evidence at the hearing was that he was supervising the other males in their doing painting work, but he did not help with any of the work. On Tuesday September 4, 2018, he was observed at another location in Brampton being his sister's dental office, setting up and operating a power table saw, measuring and cutting wood trim to fit the walls, walking up and down step ladders, using both his arms and hands to reach up, measuring by squatting low towards the ground and high up towards the ceiling. The applicant's evidence was that it took him seven hours to do what he would normally do in 45 minutes.

26The applicant also took two weeks to go on holidays in Europe in August 2018.

27Dr. Jim Getsos, chiropractor, (IE) in his Functional Abilities Evaluation Report¹⁶ indicated that the applicant made a poor effort doing the tests for his functional abilities. This was based on the applicant's heart rate not proportionately increasing with testing as the level of physical activity increased. He concluded that that the applicant's true functional capacities were more than what was observed. The applicant in the sitting and lying down tests lifting his leg, reported pain on one functional test and not on the other functional test, indicating a discrepancy in his reporting pain.

28Dr. Getsos reported after a NOC review, documentation review, and an in- person interview, concluded that the applicant had the same medium strength classification post- accident that he had pre-accident.

29Dr. Colin Chan, Occupational Therapist, on an IE, in his report indicated that the applicant in stair climbing, and ladder climbing demonstrated no impairment, but did report some discomfort in the lower back and right thigh.¹⁷

ANALYSIS

30There is no evidence before me to show that the applicant suffers a substantial inability to perform his pre-accident employment during the first 104 weeks after the accident. The evidence clearly shows the opposite: that he was able to supervise other employees twice at two different job sites, and was also able to complete work at his sister's dental office. I therefore find that the applicant does not meet the Schedule requirements to receive further benefits during the first 104 weeks of the accident.

31Is the applicant is entitled to receive income replacement benefits, for the period following 104 weeks after the accident, because he suffers a complete inability to perform his pre-accident employment.

32There is no medical evidence that the dizziness that the applicant is experiencing is caused by the accident. All of the medical reports and the applicant's own admission about hitting his head clearly indicate that the applicant did not hit his head as a result of the accident. Dr. Haight indicated that the applicant had vertigo imbalance but did not relate this as being caused by the accident. The CAT scan by Dr. Ganguli showed everything was normal. Dr. Katyal, the ear/ nose and throat specialist, found everything normal as well.

33Dr. T. Chan's reports had mixed conclusions. His report concluded that the applicant was disabled and could not return to pre-accident work but the doctor by the applicant's own admission was unaware that the applicant did return to work on March 2, 2017, and did work at his sister's dental office. Dr. Chan's report did indicate that the applicant had regained full range of motion of the head and shoulders, and that there was no pain on full flexion of the applicant's right knee. He questioned whether the applicant could tolerate persistent overhead use of his upper extremity on an eight hour day, but didn't come to any conclusion on that issue which is the very issue that is before the Tribunal. I find that his report is inconsistent and therefore should be given very little weight. The one factor that his report does do, is agree with all of the other medical reports that the applicant has regained full range of motion for the head and shoulders, and has no pain in the right knee.

34Dr. Ato Sekyi-Out found no impairments preventing the applicant from going back to work. He questioned the applicant's self- reporting on his functional abilities as the tests showed otherwise contrary to his self- reporting. Dr. Jim Getsos also questioned the applicant's self- reporting on his functional abilities as the tests showed otherwise to his self- reporting.

35The applicant raises the issue of chronic pain which apparently prevents him from working. I find based on the applicant's self- reporting that he may have chronic pain but the issue is does this pain result in a substantial inability or complete inability to perform his pre-accident employment? Can the applicant tolerate persistent overhead use of his upper extremity for an extended period of time? There is no evidence before me that he can't tolerate working for an extended period of time. I accept all of the specialists reports noted above which reports indicate normal functioning of the body parts that were in issue with the applicant (head, eyes, neck, knee, back and rotation of neck and shoulders).

36I find that in looking at the evidence relating to his functional ability, the fact that the applicant was working on his sister's dental office for a day (not as efficient as before), and the medical reports, clearly indicate that the applicant is functional and not substantially unable to do his pre-accident work. I find that the applicant can work through whatever continuous pain he still apparently feels.

37I therefore find that the applicant does not meet the Schedule requirements to receive further income replacement benefits for time period either before or after the 104 weeks following the accident.

Footnotes

1. 1Report of Dr. Rabinovich dated August 9, 2016, Applicant's Brief of Documents Tab 15
2. 2Report of Dr. Henriques dated January 23, 2017 Applicant Brief of Documents Tab 22
3. 3Report of dr. K.C. Chan dated December 18, 2018 Applicant's Brief of Documents Tab 16
4. 4Report of Dr. Godfrey dated September 27, 2016 Applicant's Brief of Documents Tab 15
5. 5CANASSESS Report dated January 23, 2017, Tab 6 of the Respondent Brief of Documents.
6. 6Report of Dr. Ato-Sekyi-Out dated August 29, 2017, Tab 9 Respondent's Brief of Documents.
7. 7Report of Dr.D. Borrett tab 15 Applicant's Brief of Documents
8. 8Report of Dr. N. Ganguli Applicant's Brief of Documents Tab 15
9. 9Neuro-Rehab Services Inc. Report dated September 28, 2018 Applicant's Brief of Documents
10. 10CanAssess-Work Demands Analysis dated January 23, 2017 Applicant's Brief of Authority Tab 21
11. 11Psychological assessment report Dr. H. Rockman dated October 1, 2018 Applicant's brief of Documents Tab 15
12. 12Report of Dr. T. Chan dated November 27, 2017 Applicant's Brief of Documents Tab 11
13. 13Report of Dr. T. Chan dated December 18, 2018. Applicant's Brief of Documents Tab 16
14. 14Report of Dr. A. Lata Tab 15 of the Applicant's Brief of Documents
15. 15Ibid 12
16. 16Report of Dr. Jim Getsos Applicant's Brief of documents tab 21
17. 17Report of C. Chan, Respondent's Brief of Documents Tab 8 P19-20