C.A. v. Aviva General Insurance Company, 2019 CanLII 76984

Tribunal File Number: 18-006162/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

C.A.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant: Alex Nikolaev

Counsel for the Respondent: Amanda Fowler Michael Baura

Representative for the Respondent: Jennifer McDonald

Interpreter: (Spanish)

In-Person Hearing: May 30-31 & June 3, 2019

OVERVIEW

1The applicant, C.A., was injured in an accident on November 9, 2017 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (Schedule).

2C.A. received medical benefits from Aviva as well as payment of an income replacement benefit (IRB) for a period of eight months. The IRB was suspended by Aviva based on s. 44 Insurer’s Examinations (IE) that determined C.A. no longer met the criteria for an IRB. C.A. disagreed with Aviva’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for reinstatement of the IRB.

3The parties participated in a case conference but were unable to resolve their dispute and, thus, proceeded to this hearing.

ISSUES TO BE DECIDED

4The following are the issues to be decided, as per the Case Conference Order dated November 19, 2018:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $389.94 per week for the period June 20, 2018 to date and ongoing, denied on November 16, 2017?

ii. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

5I find C.A. is not entitled to an IRB in the amount of $389.94 per week for the period in dispute. As no IRB is payable, C.A. is not entitled to interest.

ANALYSIS

Is C.A. entitled to an income replacement benefit?

6No. I find C.A. is not entitled to an income replacement benefit for the period in dispute, as he does not suffer a substantial inability to perform the essential tasks of his employment.

7Entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. This inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment? The onus to prove entitlement rests with C.A.

C.A.’s IRB entitlement

8On the evidence, I find the medical documentation, testimony and surveillance offered at the hearing does not satisfy C.A.’s onus to prove that he suffers a substantial inability to perform the essential tasks of his employment.²

9At the time of the accident, C.A. was employed as Teardown Staff at [,] a company that repairs and manufactures alternators and starter motors. His work was full-time and consisted of standing at a bench, picking up alternators from a basket and disassembling the alternators over an eight-hour shift. On average, the units weighed approximately ten pounds, but could be as light as six pounds and, on rare occasions, as heavy as 35 pounds. The job required him to stand during his shift, for periods of 60-90 minutes at a time. It required some reaching, some bending, and lifting the units from the floor. C.A. had been working at [ ] since 1996, with his last working day being November 11, 2017.

10C.A. submits that, because of the accident, he suffers from pain in his head, neck, back and shoulders, dizziness, blurred vision and psychological impairments—identified as depression, sadness and anxiety—that, cumulatively, prevent him from performing his essential work tasks. In response, Aviva contends that C.A.’s physical injuries are predominately soft-tissue injuries that do not render him substantially unable to complete his essential work tasks and, further, that there are significant credibility issues with his alleged impairments. I agree with Aviva.

The medical evidence

11I prefer the medical evidence of Aviva’s assessors, Dr. Tepperman (G.P.) and Dr. Siegel (Psych), over the medical evidence offered by C.A. A recurring theme throughout the testimony of Aviva’s experts at the hearing was the prevalence of non-organic and pain-focused features in C.A.’s presentation, during both his physical and psychological assessments.

12When asked about C.A.’s physical limitations, Dr. Tepperman was blunt, stating that there was “no objective evidence of impairment and no physical cause for what we are seeing.” Dr. Tepperman described C.A.’s subjective complaints as “diametrically opposed” to the objective physical findings and indicated that there was symptom magnification and malingering present. When asked why he did not inquire whether C.A. had to stand or sit while working at [ ] , Dr. Tepperman replied that it was “irrelevant based on objective findings as there are no clinical indications from a physical perspective.” Dr. Tepperman determined C.A.’s injuries had more than sufficient time to heal and there was nothing to suggest he could not return to work.

13When pressed for an opinion on the findings of Dr. Silverberg, C.A.’s physiatrist, who stated he has “doubt that [C.A.] will ever be able to return to his heavy lifting job in the future,” Dr. Tepperman remarked that the conclusion was not scientifically or medically valid based on the physical examination. I find Dr. Tepperman’s opinion is supported by the medical testing: the x-rays of C.A.’s cervical spine and shoulder from November 2017 reveal a “normal study” and the diagnostic imaging of his cervical, thoracic and lumbar spine indicate the same. The clinical notes and records from June 2018 state: “range of motion normal in neck and back”.

14Similarly, the testimony and report of Dr. Siegel revealed concerns about the validity measures and the symptom magnification C.A. displayed during his psychological assessment. Dr. Siegel remarked on how C.A.’s raw test scores were “suspect” and outside the range of what would be expected based on norms. He stated that C.A.’s scores were “unusual and unexpected given that [C.A.] stated that he was trying” and said that his scores on the pain catastrophizing scale were unusually high.

15On cross-examination, I found his responses to be measured and reasonable. Dr. Siegel explained that he was reluctant to provide a diagnosis due to the nature of the validity tests and how difficult the results were to account for. Dr. Siegel accepted C.A.’s argument that the results may have been affected by his medication, education and vision, however, noted that he believed he took these variables into consideration as best he could, and the results were still outside of normal. In conclusion, Dr. Siegel found that, “behaviourally, [C.A.] is not disabled from working” and, in his opinion, “he has no psychological inability to perform the essential tasks of his employment” despite symptoms of adjustment disorder, depression and anxiety. I find this is supported by the fact that while C.A.’s psychiatrist, Dr. Arbitman, recommended 15 sessions of treatment in his OCF-18, C.A. only attended for three. Further, Dr. Arbitman’s letter of December 12, 2018, diagnosing an adjustment disorder and pain disorder with anxiety and depression, does not indicate that C.A. cannot work due to his alleged psychological impairments.

The period in dispute

16While I find C.A. likely suffered from pain and certain limitations in the weeks and perhaps months following the accident—he self-reports the pain as 7 or 8 out of 10 depending on the day—the period for entitlement in this matter begins in June 2018. On the medical evidence, I find it unlikely that C.A.’s impairments from the accident would prevent him from performing the essential tasks of his employment at this point in time and ongoing. For example, I find that C.A.’s pain is documented in the clinical notes and records of Dr. Youssef, as there are work notes from the family physician excusing C.A. from work beginning on the date of loss and continuing to February 9, 2018. However, there are no notes thereafter. C.A. explained that the work notes cease because he was referred to other doctors at this time and that he understood that he only had to provide a note in order to return to work at [ ], not that he had to provide notes indicating that he continues to be unable to work. I find the letter from [employer name] requesting a doctor’s work note is dated November 24, 2017 and C.A. continued to provide notes for months afterwards, which contradicts this position.

17Further, to C.A.’s credit, it seems that he mitigated his employment losses by returning to work in August 2018 when he registered with a temporary work agency called [job agency]. Through this agency, he found part-time employment at [a food store], a position he held from September 23, 2018 to January 27, 2019. While the IRB test focuses on the insured’s occupation at the time of the accident, I find C.A.’s employment at [a food store] during the period of entitlement to be difficult to overcome in proving that he is entitled to an IRB. While a job description was not provided, based on the testimony offered by C.A., I find the work at [a food store] was not entirely dissimilar from his work at [ ]. The work involved working at a line and sorting five-pound pieces of dough onto trays and afforded C.A. the ability to sit during his shift work without reaching to the floor. In any event, I find that C.A.’s ability to work at [a food store], even in a slightly lighter capacity than he did at [ ], contradicts Dr. Arbitman’s belief that his injuries would keep him off work for at least a year.

18Despite working for four months at [a food store], C.A. also testified that he stopped working there because he “was in too much pain” and “could no longer continue.” In response, Aviva contends that C.A. stopped working due to a shortage of work and, on cross-examination, C.A. agreed, although there was no documentary evidence before the Tribunal confirming this. C.A. did not submit a T4 from [job agency], only paystubs, and allegedly did not file Income Tax Returns for 2017 or 2018.

19Additionally, Aviva submitted that C.A. only revealed to it that he had returned to work in any capacity after surveillance footage of him working was exchanged in December 2018, nearly three months after he began work at [a food store]. The footage showed C.A. driving independently, standing, sitting, climbing stairs, attending physiotherapy, carrying his lunch bag and, at one point, jogging through the parking lot to go to work at [a food store]. While the surveillance was not particularly damning, I find it does reveal that C.A. is significantly more mobile and functional than he allegedly presented during his in-person assessments and as I observed during the in-person hearing, where he moved glacially, needed to stand during his testimony and exhibited difficulties turning his head and upper body. On the surveillance, I see no reason why C.A. would be unable to perform the essential tasks of his employment as presented to the Tribunal.

20Finally, Aviva paid approximately $12,000 in IRB to C.A. for eight months following the accident while he was on medical leave from [ ] and was still providing medical notes from Dr. Youssef, before stopping payments in June 2018. On the medical evidence and given the inconsistencies and credibility issues noted, I find no reason to interfere with Aviva’s determination to stop the IRB. I find C.A. failed to meet his onus to prove that he is entitled to an IRB for the period in dispute because there is no medical indication that he cannot perform the essential tasks of his pre-accident employment.

CONCLUSION

21For these reasons, I find C.A. is not entitled to an income replacement benefit for the period in dispute as he did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Accordingly, no interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2In addition to his testimony, C.A. identified nine sources of information—comprised of various reports, treatment plans and summaries and clinical notes and records—to support his position that he suffers a substantial inability to perform the essential tasks of his job: an OCF-3 from November 9, 2017; an OHIP summary; records from Alpha Physio; a prescription summary; CNR’s of Dr. Youssef (Family G.P.), Dr. Arbitman (Psych) and Dr. Sky (ENT); the Report of Dr. Silverberg (Physiatry) and the testimony of M.M., the HR Manager at [ ].