Nijjar v. Pembridge Insurance Company, 2020 CanLII 101748

Citation: Nijjar vs. Pembridge Insurance Company, 2020 ONLAT 19-011065/AABS

Released Date: December 10, 2020

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:

Joga Nijjar

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Ilia Estrah, Counsel

For the Respondent: Maia K Abbas, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Joga Nijjar (“Mr. Nijjar”), was injured in an automobile accident on August 22, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Pembridge Insurance Company (“Pembridge”), the respondent.

2Pembridge terminated Mr. Nijjar’s income replacement benefits effective March 31, 2018. An issue also arose between the parties regarding payment of interest on other medical benefits that had been resolved. As a result, Mr. Nijjar submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on March 12, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Mr. Nijjar entitled to an income replacement benefit of $400.00 per week from March 13, 2018 to August 20, 2019?²

(ii) Is Mr. Nijjar entitled to interest on any overdue payment of benefits including interest on the following resolved issues:

(a) $2,200.00 for a chronic pain assessment submitted in a treatment plan (“OCF-18”) on July 9, 2019 and denied on July 24, 2019; and

(b) $1,896.94 for physiotherapy submitted in an OCF-18 on March 25, 2019 and denied on July 4, 2019?

RESULT

5I find that Mr. Nijjar is not entitled to income replacement benefits for the period of March 13, 2018 to August 20, 2019 and, therefore, no interest is payable for this claim as there are no benefits owing. I also find that Mr. Nijjar is entitled to interest in accordance with s. 51 of the Schedule for:

(i) the OCF-18 submitted on July 9, 2019 in the amount of $2,200.00 for a chronic pain assessment which was incurred on August 27, 2019; and

(ii) the OCF-18 in the amount of $1,896.94 for physiotherapy submitted on March 25, 2019 upon this benefit being, or having been, incurred.

ANALYSIS

Income Replacement Benefits (“IRBs”)

6Mr. Nijjar is seeking IRBs for the period of March 13, 2018 to August 21, 2019 which is within 104 weeks of the accident.

7The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. To be eligible for IRBs during this period, Mr. Nijjar is required to prove on a balance of probabilities that he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident.

8In order for Mr. Nijjar to meet his evidentiary burden, Mr. Nijjar must provide evidence of the following:

(i) The essential tasks of his pre-accident employment;

(ii) Which of those tasks he was unable to perform; and

(iii) To what extent he was unable to perform those tasks.³

9For the reasons that follow, I find that Mr. Nijjar is not entitled to IRBs for the period of March 13, 2018 to August 20, 2019.

Essential tasks of Mr. Nijjar’s pre-accident employment

10The parties agree that at the time of the accident Mr. Nijjar was employed full-time at Savers, a distribution centre for Value Village Stores. Based on the evidence before me, however, it is not clear what Mr. Nijjar’s position was at Savers and what were the essential tasks of his pre-accident employment.

11Mr. Nijjar submitted an Employer’s Confirmation Form (“OCF-2”) dated September 12, 2017 in which his job title was stated as a “warehouse worker.” Attached to the OCF-2 is an undated job description sheet for the position of “Recycle Production Warehouseman (Labor) [sic].” The summary of this position states that the position requires safe handling and sorting of recycled material and goods for processing for final shipment to international and domestic customers. The essential job functions for this position were:

(i) Separating, sorting, procession and bagging specific metal and plastic kitchenware items;

(ii) Separating, sorting, processing and bagging/bailing specific hard and soft (plush) toys;

(iii) Determining what is saleable, what is recyclable and what needs to be thrown away;

(iv) Stacking boxes and/or recyclables on pallets for weight verification;

(v) Maintaining up to date and accurate receiving logs of inbound freight;

(vi) Ensuring aisles and walkways are clean and free from debris;

(vii) Maintaining cleanliness an organization of the workstation;

(viii) Following and working within all company safety guidelines; and

(ix) other job-related duties as requested by their Department lead, supervisor or manager.

12The physical requirements of the position included being able to occasionally lift up to 70 pounds, pull or push a pallet jack, operate a trailer jack assembly, eye-hand coordination to sort and grasp and the ability to distinguish colors and sizes. The position also listed the following required knowledge, skills and abilities: organizational skills; being detailed-oriented; ability to operate balers; ability to communicate orally and in writing; ability to sort several types of recycled material at one time; ability to create receiving logs and load sheets; ability to interpret instructions furnished in written, oral, diagram, or schedule form; and ability to set priorities, meet deadlines and multi-task with minimal direction.

13An October 25, 2010 “Physical Description of Job” sheet is also before me which was signed by Mr. Nijjar. This sheet sets out the duties and responsibilities of both a salesclerk and a production/processing room worker and noted that the specific job duties will vary for each position. The duties and responsibilities for the production/processing room worker include moving boxes and bags from carts to sorting tables, evaluating items for quality and condition, measuring items to determine size, determining price of items, affixing price tags to items, processing a quota of items for each shift, placing clothing on hangers and then onto racks, moving merchandise to the sales floor and distributing it to appropriate areas, maintaining store and department cleanliness by sweeping and removing unsellable items and operating a trash compactor and baler. The physical requirements listed under both the salesclerk and production/processing room worker positions, without any indication of which requirements apply to either or both positions, are as follows:

Physical Activity	Requirement
Lifting/carrying	20-50 pounds
Standing	8 hours
Pushing/pulling	4 hours
Repetitive use of hands	6 hours
Exposure to dust	8 hours
Reaching Overhead	6 hours
Bending	4 hours
Crouching/kneeling	2 hours
Grasping	6 hours

14The information contained in these two documents is fairly consistent and would establish that Mr. Nijjar’s pre-accident warehouse position, regardless of the specific title, would have been considered a heavy position with demanding physical requirements. I place little weight on these two documents, however, in determining Mr. Nijjar’s essential tasks of his pre-accident employment as there is other evidence before me that I am able to reconcile with the OCF-2 and the October 25, 2010 “Physical Description of Job” sheet.

15For example, in a February 2, 2018 insurer’s examination (“IE”) report by Dr. Raymond Zabieliauskas, physiatrist,⁴ Mr. Nijjar is noted as reporting that his job was not heavy, but that he stood for most of the day. Dr. Zabieliauskas’ report stated, “[Mr. Nijjar] reported that at the time of the motor vehicle accident he was sewing bags that would be used to store fertilizer.”⁵ While this discrepancy could have potentially been an error on the part of the assessor, other evidence does not support such a conclusion. One such document is the September 2017 Application for Accident Benefits (“OCF-1”) form signed by Mr. Nijjar, which stated “stitching” under the income replacement determination section of the chart entitled “position/essential tasks.”

16The description of sewing fertilizer bags was explicitly noted by Pembridge in its Explanation of Benefits form (“OCF-9”) dated February 27, 2018 when it terminated Mr. Nijjar’s IRBs. In this document, Pembridge stated:

It is the assessor’s opinion that from a physical medicine and musculoskeletal perspective, you does [sic] not suffer a substantial inability to perform the essential tasks of your employment as a result of the accident. You are fully capable of resuming the work that you was [sic] doing sewing fertilizer bags, without any physical restrictions or functional limitations, immediately (my emphasis added).

17Mr. Nijjar provided no evidence that he disputed the description of his pre-accident employment referenced by Pembridge in this OCF-9 or that he sought any clarification to Dr. Zabieliauskas’ report.

18The other assessment reports before me do not assist in clarifying these discrepancies or confirm Mr. Nijjar’s essential tasks of his pre-accident employment. In the September 21, 2019 Psychological Assessment report by Dr. Fahimeh Aghamohseni, psychologist, and assisted by Sara Ghariby,⁶ there is no information about the essential tasks of Mr. Nijjar’s employment and this report only stated that Mr. Nijjar was employed as a “general employee” with Value Village.⁷ In the August 27, 2019 Chronic Pain Accident Benefits Report by Dr. Nayyar Razvi, physician,⁸ the only comment about Mr. Nijjar’s pre-accident employment was that Mr. Nijjar was working forty hours a week “with packaging.”⁹ Finally, the June 4, 2019 Physiatry IE Report by Dr. Rajka Soric, physiatrist,¹⁰ stated that for seven years prior to the accident, “Mr. Nijjar has worked in a factory as a machine operator. He was making very large bags made of heavy plastic. His job required standing throughout the day and some lifting.”¹¹

19Further complicating the issue is a February 29, 2012 Performance Review in which Mr. Nijjar’s job title is listed as “Ware House [sic] Assistant” and his department is listed as “shoe production.”

20Based on the evidence before me, I am unable to embark on an analysis of which pre-accident employment tasks, if any, that Mr. Nijjar was unable to perform and to what extent he was unable to perform them because it is not clear what the essential tasks of his pre-accident employment were. This issue was raised by Pembridge in its hearing submissions and Mr. Nijjar failed to respond to this issue as he filed no reply submissions for the hearing. In my opinion, the conflicting information about his pre-accident employment tasks needed to be addressed by Mr. Nijjar but it was not.

21Therefore, I find that Mr. Nijjar has failed to prove on a balance of probabilities that he is substantially unable to perform the essential tasks of his pre-accident employment because I am unable to discern what the essential tasks of his pre-accident were. As such, Mr. Nijjar is not entitled to IRBs for the period of March 13, 2018 to August 20, 2019.

Interest

22Pursuant to s. 51(1) and s. 51(2) of the Schedule, an insurer is required to pay interest on any overdue payments of a benefit.

23As there are no IRBs owing, no interest is payable for this benefit.

24Mr. Nijjar, however, maintained his claim for interest for the following issues that were listed in dispute on his Application by an Injured Person but were subsequently resolved at the case conference on March 12, 2020:

(i) $2,200.00 for a chronic pain assessment in an OCF-18 submitted on July 9, 2019 and denied on July 24, 2019; and

(ii) $1,896.94 for physiotherapy in an OCF-18 submitted on March 25, 2019 and denied on July 4, 2019.

25Mr. Nijjar’s position was that these payments were overdue and, as a result, Pembridge is required to pay interest on both issues in accordance with s. 51 of the Schedule.

26Pembridge maintains that interest is only payable under s. 51 of the Schedule when an applicant incurs the cost of a benefit. To support its position, Pembridge relies upon the decision of J.B. v Motor Vehicle Accident Claims Fund (MVACF).¹² In this decision, Adjudicator Paluch found that the respondent was only required to reimburse the applicant with interest pursuant to s. 51 of the Schedule once the applicant incurred the costs of the benefits that were found to be reasonable and necessary.¹³ Pembridge submitted that Mr. Nijjar failed “to provide any evidence as to what has been incurred and when”¹⁴ and that it was Mr. Nijjar’s late disclosure of updated clinical notes and records (“CNRs”) that resulted in any delayed approval of the benefits listed in paragraph [24] above.

27I disagree with Pembridge’s submission that there is no evidence before me of what, if any, amounts of the benefits in paragraph [24] were incurred. As part of his submissions, Mr. Nijjar included a Chronic Pain Accident Benefits Report by Dr. Razvi dated August 27, 2019. As Pembridge has agreed to pay the OCF-18 for the chronic pain assessment, it is also required to pay interest in accordance with s. 51 of the Schedule on this payment as, from the evidence before, it was incurred on August 27, 2019.¹⁵

28I do agree, however, that there is no evidence before me regarding when, or if, the OCF-18 for physiotherapy was incurred. I find that interest is only payable under s. 51 after a benefit has been incurred despite “overdue” not being defined in the Schedule. This finding is consistent with the decision in J.B. v MVACF where s. 51 is read together with s. 15 of the Schedule. Section 51 only requires interest to be payable if the insurer fails to pay the benefit within “the time required under this Regulation,” which, according to s. 15, is once a benefit is incurred, and subject to any arguments raised under s. 38(8) of the Schedule for any deficient denial notices. As s. 38(8) compliance was not raised by Mr. Nijjar in this matter, and Pembridge has agreed to pay the OCF-18 for physiotherapy, I find that Pembridge is liable to pay interest in accordance with s. 51 of the Schedule upon this benefit being incurred by Mr. Nijjar. I also reject Pembridge’s argument that the delay by Mr. Nijjar of providing updated CNRs to Pembridge relieves Pembridge’s obligation to pay interest. There is nothing in the Schedule that places any condition or restriction on the payment of interest on overdue payments and I agree with the Tribunal in reading s. 51 as a “no fault” provision.¹⁶

CONCLUSION

29For the reasons outlined above, I find that Mr. Nijjar is:

(i) not entitled to income replacement benefits for the period of March 13, 2018 to August 20, 2019;

(ii) entitled to interest in accordance with s. 51 of the Schedule for the OCF-18 submitted on July 9, 2019 in the amount of $2,200.00 for a chronic pain assessment which was incurred on August 27, 2019; and

(iii) entitled to interest in accordance with s. 51 of the Schedule for the OCF-18 submitted on March 25, 2019 in the amount of $1,896.94 for physiotherapy upon this benefit being, or having been, incurred.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2In the Tribunal’s March 12, 2020 Order, the period in dispute for which Mr. Nijjar was seeking income replacement benefits was from March 13, 2018 to date and ongoing. However, in his submissions, Mr. Nijjar limited his claim for IRBs for the period ending on August 20, 2019. As such, I accept the correct period in dispute for income replacement benefits is from March 13, 2018 to August 21, 2019.
3. 3Although I am not bound by other Tribunal adjudicators, I am persuaded by the test outlined in 17-002651 v Aviva General Insurance, 2018 CanLII 13150 (ON LAT) at para. 7.
4. 4Hearing Submissions of the Respondent, tab R.
5. 5Ibid. at page 4.
6. 6Applicant’s Brief of Documents, tab 5.
7. 7Ibid. at page 3.
8. 8Applicant’s Brief of Documents, tab 10.
9. 9Ibid. at page 8.
10. 10Hearing Submissions of the Respondent, tab F.
11. 11Ibid. at page 5.
12. 122020 CanLII 37666 (ON LAT) (“J.B. v MVACF”).
13. 13Ibid. at para. 70.
14. 14Hearing Submissions of the Respondent, para. 43.
15. 15See the Tribunal’s reconsideration decision in 17-001670 v Travelers Insurance Company of Canada, 2018 CanLII 39375 (ON LAT) at para. 11.
16. 16See 17-006692 v Certas Home and Auto Insurance Company, 2018 CanLII 95551 (ON LAT) at para. 24.