Citation: Nash. v. Aviva General Insurance Company, 2020 ONLAT 19-010799/AABS

Released Date: 12/14/2020

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:

Warren Nash

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Rita Margaret Gratsias and Rishi Sharma, Counsel

For the Respondent:

Amanda Fowler and Andy Smith, Counsel

HEARD By Video

October 20, 21 and 22, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1Warren Nash (the “applicant”) was involved in an automobile accident on June 17, 2018 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was 28-years-old at the time of the accident.

2Aviva General Insurance Company (the “respondent”) determined the applicant ineligible for an income replacement benefit (“IRB”) and denied other benefits.

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

PRELIMINARY ISSUE – RESPONDENT’S MOTION TO STRIKE EVIDENCE

4On October 15, 2020, the respondent filed a motion for an order striking the evidence found at Tab 15 of the applicant’s document brief, which is a copy of a complaint made by the applicant on June 19, 2020 to the College of Psychologists of Ontario about Dr. Syed, the respondent’s assessor. The motion was scheduled to be heard at this hearing.

5The respondent submits that this complaint should be struck as hearsay consisting of unproven allegations. Further, it argues that the complaint’s prejudicial value outweighs its probative value and is irrelevant to the matters to be determined at this hearing. The respondent also submits that this type of evidence would have to be put to the witness. The respondent relies on several cases in support of the proposition that this evidence should be excluded.

6The applicant objects to the short notice of the service of the motion which was not filed at least 10 prior to the motion, contrary to Rule 15 of the Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017. The applicant submits that the complaint is relevant, specifically that it will allow the Tribunal to draw an inference that Dr. Syed is not a credible and reliable witness. He argues that to exclude this evidence prior to the testimony of Dr. Syed would amount to a denial of procedural fairness, and that I have discretion as to how much weight to put on this evidence. To this end, applicant’s counsel has undertaken to put the Tab 15 material to the witness at the hearing.

7Dealing with the issue of late filing of the respondent’s motion, I allow the late filing and the hearing of the motion. Rule 3 of the Tribunal’s Rules provides that the rules should be liberally interpreted and applied and may be waived or varied to facilitate a fair, open and accessible process and to allow effective participation by the parties and also to ensure efficient, proportional and timely resolution of the merits of the proceeding before the Tribunal. Here, the applicant was able to file material responding to the motion, even though he was served late.

8That said, the respondent’s motion is dismissed. Evidence is rarely excluded prior to a hearing by the Tribunal. The Tribunal cases relied on by the respondent are specific to their facts. Here, the evidence of a complaint to the College seems to have little relevance to the issues to be determined in this hearing, but that could change depending on the testimony of the witnesses. At this point in the hearing, having heard no evidence from either the applicant or Dr. Syed about their interaction, I am unable to say that this evidence is completely irrelevant, that its prejudicial value outweighs its probative value, or that it should be excluded. Further, applicant’s counsel has undertaken to put Tab 15 to the witness which resolves one of the respondent’s concerns. As a result, I decline to strike Tab 15 of the applicant’s document brief and allow it to remain in evidence, subject to weight and subject to the submissions of both parties at the conclusion of the hearing on weight.

AGREEMENT REGARDING EVIDENCE

9Applicant’s counsel communicated prior to the hearing that Dr. Yaroshevsky is unable to testify at this hearing because of a serious medical issue and, as a result, would not be available to be cross-examined by the respondent. After discussion during the hearing, the parties agreed as follows: the report from Dr. Weinstein, respondent’s assessor, would remain in evidence; the reports from Dr. Yaroshevsky, applicant’s psychiatrist, would remain in evidence; and neither doctor will testify at the hearing. Thus, the respondent agreed to forego its right to cross-examine Dr. Yaroshevsky, and the applicant agreed to forego his right to cross-examine Dr. Weinstein. Both parties may make submissions on these reports in closing.

ISSUES

10The issues to be decided are:

i. Is the applicant entitled to receive an IRB in the amount of $400.00 per week for the period July 24, 2018 to date and ongoing?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,150.08 for chiropractic treatment, recommended by Downsview Healthcare Inc. in a treatment plan dated January 19, 2019, and denied by the respondent on February 20, 2019?²

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,232.56 for chiropractic treatment, recommended by Downsview Healthcare Inc. in a treatment plan dated May 11, 2019, and denied by the respondent on August 16, 2019?

iv. Is the applicant entitled to receive a medical benefit in the amount of $627.92 for relaxation and pain management, recommended by Downsview Healthcare Inc. in a treatment plan dated July 9, 2019, and denied by the respondent on July 23, 2019?

v. Is the applicant entitled to payments for the cost of examination in the amount of $677.93 ($2,000.00 less $1,322.07 approved by the respondent) for a psychological assessment, recommended by Downsview Healthcare Inc. in a treatment plan dated December 20, 2018, and denied by the respondent on March 4, 2019?

vi. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by Downsview Healthcare Inc. in a treatment plan dated June 4, 2019, and denied by the respondent on August 16, 2019?

vii. Is the respondent liable to pay and award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

11I find that the applicant is not entitled to IRB in the amount of $400.00 per week. No award is made. No interest is payable. The applicant’s claim is dismissed. The remaining issues were resolved by the parties prior to the hearing and are not determined by me.

LAW

12Section 5(1) of the Schedule provides that the insurer shall pay an IRB to an insured who sustains an impairment as a result of an accident if the insured meets the conditions referred to below.

13“Impairment” is defined in s. 3(1) of the Schedule to mean a loss or abnormality of a psychological, physiological or anatomical structure or function.

14For the first 104 weeks post-accident, an employed person’s entitlement 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, as a result of and within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. Thus, if the insured was working at the time of the accident, 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?

15After the first 104 weeks, s. 6(2)(b) provides that an insurer is not required to pay an IRB unless the applicant is suffering a complete inability to engage in any employment for which the applicant is reasonably suited by education, experience or training.

16The onus is on the applicant to establish entitlement to IRB on a balance of probabilities.

ANALYSIS

Is the Applicant Entitled to IRB in the amount of $400.00 per week as claimed?

17At the time of the accident, the applicant was employed full-time as an apprentice carpenter through his union at PCL Constructors Inc. (“PCL”), and as a licenced security guard by Gemstar Security Service Ltd. (“Gemstar”). The applicant says he stopped working at both jobs after the accident because of his injuries.

18The respondent does not dispute the $400.00 per week claimed, but does dispute the claimant’s entitlement to IRB from July 24, 2018 and ongoing.

What were the applicant’s accident-related injuries?

19The applicant testified that he suffers headaches, neck, shoulder, back pain and psychological injuries as a result of the accident, and that these injuries are preventing him from working. The applicant testified that he did not have headaches before the accident. He said he gets headaches about three times a week since the accident, and that this makes it hard for him to concentrate on his job because in construction there is a lot of noise and he has to work around dangerous equipment, be aware of his surroundings and communicate with others. The applicant testified that the headaches make it harder to complete tasks, and that it takes longer to get things done.

20The applicant said he did not have neck pain before the accident, but now gets neck pain about five times a week. It hinders his ability to sleep, prevents him from turning his head quickly, lift heavy objects and is uncomfortable if he has to sit down for a long time. As a carpenter, he has to lift over 100 pounds with his neck, back and knees. Being unable to do this makes him feel weak and useless. The applicant testified that he did not have shoulder pain before the accident, but now gets shoulder pain about three times a week. During lifting anything heavier than 20 pounds, his shoulders become heavy and tired. His shoulder pain makes playing sports and exercising difficult and makes finding and sustaining employment difficult which in turn makes him feel terrible and hopeless.

21The applicant said he did not have back pain before the accident, but now gets back pain about three times a week. His back is tense, has a burning sensation, feels less flexible and it is difficult to maintain straight posture. His back pain makes prolonged standing, walking fast, sitting down in one place and reaching around behind his back difficult. He cannot lift anything over 20 pounds, which makes him feel terrible. The applicant rated all pain at 7 out of 10, and testified that he takes painkillers prescribed by his doctor, along with muscle relaxants, sleeping pills, and “relaxing” pills. The applicant also testified that his muscles are stiffer after the accident, which makes him more prone to injuries, feel more tired, lethargic and negative. He had no physical limitations before the accident.

22The applicant testified that, post-accident, he gave Gemstar two weeks notice and then resigned in August 2018 because of pain from his back injuries, and never returned. In October 2019, the applicant said he got a security job at Onex, but left after five days because of back pain. The applicant testified that he told Onex he could not stand in one place for more than 30 minutes.

23The applicant says his psychological injuries have changed his social, family and active life. In particular, he does not really talk to anyone and has difficulty sleeping, which makes him tired through the day, and he falls asleep from noon to about 2:00 pm. The applicant testified that he had problems coping with stress before the accident but now cannot cope at all. Before the accident, he worked two jobs and was able to do other activities. Now he frequently has nightmares, anxiety, difficulties concentrating and making decisions, is doubtful, his mind is “all over the place” and he lacks confidence. The applicant said his blood pressure is rising, and that he does not buy his own food or cook any more. He said that he had no problem driving before the accident but, after the accident, driving has become difficult, he has stopped driving and takes public transit or is a passenger in a vehicle. The applicant said he takes anti-depressant medication.

What were the essential tasks of the applicant’s employment?

24According to the OCF-2 dated September 5, 2018, from PCL Constructors Inc. at the time of the accident the applicant’s job description is full-time “shop carpenter,” the essential tasks of which are “built dunnage, drywall installation”. The applicant described the essential tasks of his carpentry employment as physical because he is required to do lifting, walking, standing and bending. He also needs the ability to work along with others and perform cognitive tasks such as measuring and retaining information. No OCF-2 was filed from Gemstar, but the applicant testified that as a security guard, he had to survey the outside of premises and control access.

Does the applicant suffer a substantial inability to complete the essential employment tasks?

25I find that the applicant does not suffer a substantial inability to complete the essential employment tasks based on a lack of medical evidence.

26I find there is insufficient medical evidence to establish that the applicant suffers post-accident headaches to an extent that this would render him substantially unable to perform the essential tasks of either of his pre-accident employments. Although the applicant testified that he suffers from headaches since the accident, his complaints of suffering from headaches is not consistent. Dr. Lam’s September 27, 2018 OCF-3 disability certificate contains no reference to headaches. In this disability certificate, the applicant self-describes his injuries as “pain in neck, left shoulder, and upper back,” and makes no complaint of headaches. Further, the applicant’s complaint of post-accident headaches is not supported by any clinical records of Dr. Lam and Dr. Wong filed by the applicant. The October 19, 2018 disability certificate by Dr. Pivtoran, the applicant’s chiropractor, lists chronic post-traumatic headaches and post concussion syndrome as injuries suffered by the applicant in the accident. However, not only is this complaint some three months post-accident, but it is not a medical diagnosis, since Dr. Pivtoran is a chiropractor, not a medical doctor. Further, these injuries are also not supported by any clinical records of Dr. Lam and Dr. Wong or any medical diagnosis.

27I find there is insufficient medical evidence to establish that the applicant suffers post-accident headaches to an extent that this he is substantially unable to perform the essential tasks of either of his pre-accident employments. The applicant did not put forward any expert medical report to establish that he is substantially unable to perform the essential tasks or his employment because of physical or cognitive injuries from the accident. The disability certificates filed by the applicant are not sufficient to establish that he is substantially unable to perform the essential tasks of his employment. In the September 2018 disability certificate, Dr. Lam states that the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident and within 104 weeks, the only explanation being that the applicant is “unable to do heavy lifting”. Further, Dr. Lam confirms that the disability is expected to last 9-12 weeks. Although Dr. Lam lists medication that the applicant is currently taking, he indicates it was not prescribed by him. Dr. Lam’s clinical record for November 1, 2018 notes that the applicant was back to work on October 22 and off meds, although he complains of neck, shoulder and back pain.

28In his October 2018 disability certificate, Dr. Pivtoran also states that the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident. The only explanation given is that the applicant is too symptomatic to return to work at present, attempted resuming work, was not able to continue and was laid off. Dr. Pivtoran appears to be relying solely on the applicant’s self-reporting. Further, he does not give any detailed explanation as to what essential employment tasks the applicant is substantially unable to perform, or which employment he is referring to. Still further, there is no documentary evidence from either of the applicant’s pre-accident employers, post-accident employers, or the applicant’s union to suggest that he is substantially unable to perform the essential tasks of his employment, that he was let go for that reason, or that he resigned from Gemstar for that reason.

29Dr. Lam’s records show that the applicant’s October 2018 cervical spine x-ray and the November 2018 right shoulder ultrasound were unremarkable.

30The applicant was assessed by Dr. Khan, respondent’s family physician, on November 13, 2018 regarding his entitlement to an IRB. The applicant did not tell Dr. Khan that he was working as a security guard as well as a carpenter at the time of the accident. Dr. Khan reviewed the essential tasks of his carpentry employment with the applicant and was told that the tasks included building structures and lifting material, was physical work involving repetitive lifting of over 100 pounds and involved bending and kneeling. He is dispatched through the union to different work sites. The applicant told Dr. Khan that he worked for his employer PCL but had been laid off, had worked in late October 2018 at Walmart moving shelves but was laid off because the site manager had the impression that he was not doing the work properly and has not retuned to work since. Dr. Khan reviewed with the applicant his complaints of intermittent, daily pain in the neck, upper back and shoulders and intermittent headaches. Dr. Khan diagnosed whiplash associated disorder II, thoracic spine sprain/strain and tension/migraine headaches, and opined that he found no compelling objective findings that would render the claimant substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. In December 2018, Dr. Khan, after being provided with the clinical records of Dr. Lam, confirmed his opinion.

31The applicant relies on the September 6, 2018 disability certificate completed by his chiropractor, Dr. Kominek. Dr. Khan, a physician, reviewed and commented on this disability certificate in his November 2018 report. He noted that Dr. Kominek identified that the claimant could return to work with modified duties and specific modified duties were listed. I prefer the evidence of Dr. Khan over that of Dr. Kominek given his medical expertise and experience.

32Immediately after the accident, the records of PCL show the applicant worked until July 25, 2018. Further, the records of Gemstar show the applicant notified it on July 27, 2018 that he would be quitting in approximately two weeks. There is no reference in this notice to any medical condition making him unable to work or to the accident or to any injuries from the accident. The applicant continued to work for Gemstar until August 12, 2018. The weight of the evidence is that, while the applicant has some injuries, they are not such that the applicant is substantially unable to perform the essential tasks of his employment. This is borne out by the fact that the applicant worked as a carpenter post-accident with similar frequency as when he worked pre-accident through to the end of 2019.

33The applicant admitted that, as an apprentice carpenter, his access to carpentry jobs must come through the union. His pattern of employment through the union, which consisted of jobs as short as one day and as long as three months, was consistent throughout 2017 and 2018 and for that part of 2019 when he was not attending carpentry courses. The applicant admitted in cross- examination that he has no documentary evidence that he told the College of Trades or his union about the accident, the injuries he had, or that he asked any employer or his union for modified duties. The applicant’s income from both employments was $36,474.00 in 2017 and $29,585.00 in 2018. Contrary to the applicant’s testimony, there is no documentary evidence from his union or any of his employers to corroborate that his employment at any of his jobs was terminated for inability to perform the work. Further, there is no evidence in the records from the College of Carpenters & Allied Trades, Carpenter School filed by the applicant that he had any difficulty with the courses he took in 2019 as a result of the accident. While the applicant testified that he failed one of the College’s courses post-accident, the records show that he also failed one of the College’s courses before the accident.

34Although the applicant testified that he provided a doctor’s note to PCL, no such note appears in the records of PCL, Dr. Lam, or Dr. Wong. PCL’s records show that his job there ended for shortage of work, which is consistent with the records of the union.

35Although the applicant testified that post-accident he was fired by his employer Restet Team for performance issues, the applicant admitted he did not file a grievance with his union. He also failed to produce Restet’s employment file, despite the fact that he was ordered to do so by the Tribunal’s February 26, 2020 case conference Order. Similarly, although the applicant called Ashbiri for work in March, 2019 after his two month College course was over, and he testified that he was not re-hired because of performance issues, the applicant failed to produce Ashbiri’s employment file although ordered to do so by the Tribunal.

36Contrary to the applicant’s testimony that he has difficulty driving, and experiences disabling back, neck and shoulder pain, the respondent’s surveillance shows the applicant driving to his College course, walking into the building carrying a backpack, removing his backpack from his back without difficulty and driving away after class in his own vehicle. Further, the applicant did not file a prescription summary or copies of prescriptions, even though he testified that he takes prescription medication every day. Without corroborating records, the applicant’s testimony is unreliable.

37The weight of the evidence also establishes that the applicant is not substantially unable to perform the essential tasks of his employment as a security guard. The applicant admitted at the hearing that he renewed his security guard licence, has attended interviews, and is ready and able to work as a security guard or as a carpenter.

38For the foregoing reasons, I find that there is insufficient evidence to support the applicant’s position that he is physiologically or anatomically substantially unable to perform the essential tasks of his pre-accident employments.

39With respect to his alleged psychological impairment, the applicant relies on the report of his psychiatrist, Dr. Yaroshaevsky, dated February 25, 2020 and his addendum report dated July 28, 2020. I attribute little weight to the reports of Dr. Yaroshaevsky for the following reasons.

40Firstly, Dr. Yaroshaevsky initially diagnosed the applicant on February 18, 2020, approximately one and one half years post-accident, with pre-existing persistent depressive disorder and exacerbation of his chronic mood symptoms as a result of the accident. However, the applicant did not provide Dr. Yaroshaevsky with the information that he was capable of two different types of employment. PCL was the only pre-accident employment discussed. The applicant admitted in his testimony that he did not tell Dr. Yaroshaevsky that he had a second job working as a licenced security guard at the time of the accident, just as he did not tell the respondent, Drs. Khan, Shaul, Weinstein and Syed. The applicant also admitted in cross-examination that he did not tell Dr. Yaroshaevsky about the essential tasks of his work as a security guard or as a carpenter. As a result, Dr. Yaroshaevsky did not know the essential tasks of the applicant’s employments.

41Secondly, Dr. Yaroshaevsky was provided with very limited documentation to review. This did not include the February 11, 2020 report of the respondent’s psychiatrist, Dr. Weinstein, or any records from the applicant’s family doctors. Dr. Yaroshaevsky’s report gives no indication that he was advised the applicant had already been assessed by Dr. Weinstein. Dr. Yaroshaevsky’s report also states that he based his opinion on the supplied documentation, claimant’s self-report and clinical impressions. Two of these three were not complete and correct because key documentation was missing, and the claimant did not correctly report his employments at the time of the accident.

42Thirdly, in his July 28, 2020 addendum report, Dr. Yaroshaevsky appears to misstate the opinion he gave in his February 2020 report when he says about his earlier report that he “opined that from a psychological and emotional standpoint, Mr. Nash suffers a substantial inability to perform the essentials tasks of his pre-accident employment as a carpenter and a security guard”. This is factually incorrect.

43Fourthly, in his addendum report, Dr. Yaroshaevsky states that the applicant was also working as a security guard at the time of the accident. However, Dr. Yaroshaevsky does not state that he reviewed any further documentation, nor did he meet or discuss the essentials tasks of this employment with the applicant. This undermines his opinion in the addendum report that the applicant is suffering a complete inability to engage in any employment for which he is reasonably suited by his education, training or experience as a result of the accident.

44The applicant also relies on the report of applicant’s psychologist, Dr. Shaul, dated April 15, 2019 who diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and specific phobia (travelling in a vehicle). Dr. Shaul opines that from a psychological and emotional standpoint, the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment as a carpenter and is not capable of resuming his pre-accident employment. Dr. Shaul’s report also proceeds on the basis that the applicant worked pre-accident only as a carpenter as the applicant did not tell him about working as a security guard. As a result, Dr. Shaul did not know the essential tasks of the applicant’s employments and his opinion is unreliable. The applicant also told Dr. Shaul that he is nervous while driving and now avoids driving. Dr. Shaul does not record that the applicant owns a vehicle and drove to his College courses for two months in early 2019, tending to suggest that the applicant did not self-report this information. Dr. Shaul states that his opinion is also based on the fact that the applicant had no reported history of emotional or psychological difficulties pre-accident, and self-reported that he was “mentally strong” pre-accident. This conflicts with Dr. Yaroshaevsky’s diagnosis of pre-existing persistent depressive disorder and exacerbation of his chronic mood symptoms as a result of the accident. Because it is based on incomplete and inaccurate information described above, I give Dr. Shaul’s opinion little weight.

45I prefer the February 25, 2019 report of Dr. Syed, respondent’s psychologist, over that of Dr. Shaul. Dr. Syed specifically addresses the applicant’s entitlement to an IRB, she reviewed the records of Dr. Lam as part of her assessment, and administered a number of tests to the applicant over a period of several hours during the assessment. Dr. Syed diagnosed adjustment disorder with mixed anxiety and depressed mood as a result of the accident but opined that, from a psychological perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a direct result of the accident. Dr. Syed testified at the hearing and explained her methodology and her report. Dr. Syed testified that her overall impression is that the applicant is truthful but was magnifying and felt helpless. Her report shows that she reviewed the applicant’s recent employment history with him, including his most recent employment as a carpenter at Ashbiri, which he left in January 2019 to attend trade school. Dr. Syed reports that, at the time of assessment, the applicant was in the midst of completing a carpentry apprenticeship. Although the applicant made much of the fact that he has filed a complaint to the College of Psychologists of Ontario about Dr. Syed and her testing methodology and argues that her report is unreliable, I find that Dr. Syed’s evidence was not seriously shaken in cross-examination and I prefer her evidence to that of Dr. Shaul although, like other assessors, the applicant did not tell Dr. Syed about his pre-accident security guard employment. The unproven allegations of the applicant against Dr. Syed in the complaint are not relevant to the issue I have to decide and will be resolved in another forum.

46The applicant also filed the report of respondent’s psychiatrist Dr. Weinstein dated February 11, 2020. This report is insufficient to establish that the applicant is substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. The purpose of Dr. Weinstein’s assessment is to determine the reasonableness and necessity of a treatment plan not in dispute in this hearing, and does not advance the applicant’s claim for an IRB. Although Dr. Weinstein diagnosed somatic symptom disorder with predominant pain, specific phobia, driver and passenger type and adjustment disorder with depressed mood, the applicant was not assessed by Dr. Weinstein in respect of the applicant’s entitlement to IRB. As a result, the essential tasks of his pre-accident employment were noted but not discussed in any detail, although Dr. Weinstein did note the applicant’s self-reported employment as a carpenter. Like other assessors, Dr. Weinstein was not told by the applicant that he worked as a security guard at the time of the accident. As a result, Dr. Weinstein was not fully aware of the essential tasks of the applicant’s two employments. More importantly, in the end, Dr. Weinstein delivers no opinion on whether the applicant meets the test for eligibility for IRB nor was he mandated to do so.

47Dr. Lam’s September 27, 2018 disability certificate contains no reference to any psychological injuries. In this disability certificate, the applicant self-describes his injuries as “pain in neck, left shoulder, and upper back” and makes no complaint of psychological injuries. Further, the applicant’s complaint of psychological injuries is not supported by any clinical records of Dr. Lam or Dr. Wong. Still further, Drs. Lam and Wong made no referrals to a psychiatrist or other mental health specialist. The October 19, 2018 disability certificate by Dr. Pivtoran lists post-concussion syndrome as an injury suffered by the applicant in the accident. However, not only is this complaint some three months post-accident but it is not a medical diagnosis, since Dr. Pivtoran is a chiropractor, not a medical doctor. There is no medical diagnosis of concussion in the evidence put forward by the applicant.

48Taken in totality, the weight of the evidence is that the applicant has no psychological, physiological or anatomical structure or function as a result of the accident that results in a substantial inability to perform the essential tasks of his pre-accident employments. Even if there may be some tasks of his employment that the applicant might not be able to return to, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employments. The onus of proof is on the applicant and I find that he has failed to meet it.

49The applicant argues that the respondent’s notices to him for assessment by the respondent’s assessors do not comply with s. 46(2)3 of the Schedule because they did not notify the applicant that he could decline an assessment and go to a clinic of his choosing. Section 46 applies if an insurer refers an insured to an assessor with whom the insurer has a potential conflict of interest. There is no evidentiary basis for this argument here.

50The applicant submits that the respondent has not adduced evidence to counter evidence presented by the applicant and relies on Clement v. Clement.³ The Clement case dealt with proof of causation of an accident which is not at issue here. Here, the burden of proof of entitlement to IRB is on the applicant and he has not met it. The applicant also submits that the Schedule has consumer protection purposes and should be liberally construed in favour of the applicant. The applicant submitted a number of cases in support of this legal proposition. This proposition is not in issue here. There is no issue here of statutory interpretation but, rather whether the applicant has established on a balance of probabilities whether he is eligible for IRB. I find that he has not.

The Post-104 Week Test: Does the applicant suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, experience or training?

51Given that I have found that the applicant failed to meet his onus to prove entitlement to IRB for the period within 104 weeks after the accident, it is unnecessary for me to address his entitlement for the period after 104.

Award

52Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. The applicant argues that the respondent unreasonably denied him an IRB, has put the applicant into poverty, has acted in an underhanded manner throughout the adjustment process and, as a result, this is a clear case for a special award.

53I disagree. The respondent denied an IRB for the reasons it expressed, which was not an unreasonable position given the reports it received from its assessors, including Drs. Khan, Weinstein and Syed, and the other information on file, including the applicant’s failure to promptly report to the respondent and to the assessors that he worked a second job as a security guard at the time of the accident. There is no evidence that the respondent has “put the applicant into poverty”. The applicant continued to work and attend the classroom portion of his apprenticeship program for more than one and one-half years post-accident. On the evidence before me, I see no basis upon which to conclude that the respondent “acted in an underhanded manner throughout the adjustment process”. Only conduct during the course of this proceeding is relevant to a claim for an award and I see no basis upon which to conclude that the respondent acted in an underhanded manner during this proceeding. For these reasons, there is no award.

Interest

54As no benefits are payable, no interest is payable.

ORDER

55For the above reasons, I find that the applicant is not entitled to an IRB. No award is made. No interest is payable. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Both parties agreed at the beginning of the hearing that issues ii, iii, iv, v, vi, and vi are no longer in dispute, leaving for resolution at this hearing issues i (IRB), issue ii (award) and issue iii (interest).
3. 3Clement v Clement, [2012] 2 S.C.R. (S.C.C.) at para 11.