Citation: Shakithia Santan v. Aviva Insurance Canada, 2021 ONLAT 19-010213/AABS

Release date: 08/31/2021

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:

Shakithia Santan

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Faranaz Siganporia, Counsel

For the Respondent:

Brittanny Tinslay, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Shakithia Santan, was injured in an automobile accident on March 26, 2016 (subject accident) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva Insurance Canada, the respondent.

2The respondent terminated the applicant’s weekly income replacement benefits (IRBs) in the amount of $338.80 on December 13, 2017. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on February 25, 2020 and an in-person hearing was scheduled for October 13 and 14, 2020.

4On September 15, 2020, the Tribunal notified the parties that the hearing would proceed by videoconference due to COVID-19.

5On September 18, 2020, the respondent filed a Notice of Motion on consent requesting the Tribunal to change the format of the hearing to a written hearing. As a result, the Tribunal vacated the videoconference hearing dates and a written hearing was scheduled.

ISSUES IN DISPUTE

6The following issues are to be decided:²

(i) Is the applicant entitled to IRBs in the amount of $338.80 per week from December 14, 2017 to date and ongoing?

(ii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7The applicant is not entitled to IRBs for the period of December 14, 2017 to date and ongoing. As a result, no interest is payable.

ANALYSIS

Entitlement to IRBs within 104 weeks of the accident – December 14, 2017 to March 26, 2018

8An insured person is eligible to receive IRBs within 104 weeks of an accident if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment during this period.³

9I find that the applicant has failed to meet her burden of proving on a balance of probabilities that she is entitled to IRBs for the period of December 14, 2017 to March 26, 2018.

Essential tasks of the applicant’s pre-accident employment

10It is undisputed that at the time of the accident, the applicant was on a maternity leave from her full-time position at Pro Impex Inc. The applicant’s pre-accident job title varied in the evidence from Marketing Manager,⁴ Marketing Representative/Administrative Assistant⁵ and Administrator/Manager.⁶

11The June 22, 2016 Employer’s Confirmation Form (OCF-2) listed the applicant’s job description as administrator and marketing, administration, clerical, receptionist, and marketing. The OCF-2 also noted that the applicant’s position involved prolonged sitting, unpacking, answering phone calls, budgeting, continuous computer duties, managing employees, and distribution.

12As part of the December 5, 2017 Insurer’s Examination (IE) Report by Dr. Daniel Cohen, psychologist,⁷ the applicant reported that the physical demands of her pre-accident employment included lifting and carrying marketing products, up to 20-30 pounds each, once per week and that she was required to walk, sit, and stand for prolonged periods.⁸ The applicant also reported to Dr. Cohen that her pre-accident employment duties included:

(i) Answering phones;

(ii) Talking to customers;

(iii) Performing accounts payable and receivable;

(iv) Emailing correspondence;

(v) Scheduling appointments;

(vi) Talking to customers regarding marketing and sales;

(vii) Delegating tasks to telemarketers;

(viii) Filing and reception duties; and

(ix) Driving 1-2 days per week to pick up payments and deliver samples.⁹

13The respondent challenged the essential tasks of the applicant’s pre-accident employment. The respondent’s position was that only the job duties reported in the June 22, 2016 OCF-2 should be considered in my analysis as the remaining evidence is based on the applicant’s self-reports with no evidentiary foundation. The respondent relied upon the Tribunal’s decision in 17-001023 v Aviva Insurance (17-001023)¹⁰ where the list of the applicant’s pre-accident employment job tasks set out in their submissions was accepted only because it was consistent with an IE report. The respondent also submitted that the applicant failed to provide affidavit evidence to support the proposed essential tasks of her pre-accident employment.

14I disagree with the respondent’s position regarding the essential tasks of the applicant’s pre-accident employment for the following reasons:

(i) 17-001023 is distinguishable on the facts. In 17-001023, the applicant only listed her pre-accident employment tasks in her hearing submissions whereas in this matter, the applicant reported her pre-accident employment tasks to Dr. Cohen and they were reflected in the June 22, 2016 OCF-2;

(ii) When the hearing in this is matter was rescheduled to take place in writing, the Tribunal ordered that no affidavit evidence was allowed.¹¹ Therefore, the applicant was not permitted to file an affidavit as evidence for the hearing; and

(iii) While the respondent challenged the essential tasks of the applicant’s pre-accident employment, I have no evidence before me to refute the tasks as reported by the applicant.

15Therefore, I accept that the essential tasks of the applicant’s pre-accident employment position with Pro Impex Inc. are those set out above in paragraphs [11] and [12].

Substantial inability to perform the essential tasks of her pre-accident employment

16The only evidence before me dated between December 14, 2017 to March 26, 2018 is one clinical note and record (CNR) entry from Dr. Martin Cloth, the applicant’s family physician, dated March 8, 2018. At this visit, Dr. Cloth diagnosed the applicant with, among other things, a cervical and lumbar spine strain/sprain, and an ankle sprain/strain. Dr. Cloth prescribed an ankle brace, heat, and Tylenol but no prescription pain medication. Dr. Cloth did not refer the applicant to any specialists for any further investigation at this time.

17Dr. Cloth’s March 8, 2018 CNR entry does not assist me in determining the applicant’s level of function or her inability to complete the essential tasks of her pre-accident employment as there is no information provided on the severity or frequency of her ongoing pain complaints.

18The applicant also relied upon a November 15, 2017 Disability Certificate (OCF-3) completed by Dr. Andrew Greszczyszyn, chiropractor, to show that she was unable to return to her pre-accident employment at least until February 15, 2018. This OCF-3 indicated that the applicant was substantially unable to perform the essential tasks of her employment at the time of the accident as a result, and within 104 weeks, of the accident and that she could not return to modified work duties. It is well settled, however, that an OCF-3 alone is not sufficient to establish entitlement to IRBs. Significantly, I have no evidence from Dr. Greszczyszyn of what information he based his opinion on regarding the applicant’s inability to complete the essential tasks of her pre-accident employment.

19The applicant also challenged the findings of the IE reports relied upon by the respondent to terminate her IRBs. Dr. Irina Safir, family physician, and Dr. Daniel Cohen, psychologist, both opined in their IE reports dated December 5, 2017 that the applicant did not have a substantial inability to perform her pre-accident related employment duties as a result of the subject accident. The burden, however, never shifts to the respondent to disprove the applicant’s entitlement to benefits.

20Therefore, I find that the applicant failed to prove on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment during the period of December 14, 2017 to March 26, 2018. Even if I am incorrect, I also find that the applicant is not entitled to IRBs for this period as she failed to establish that her inability to perform the essential tasks of her pre-accident employment resulted from the subject accident and not from her second motor vehicle accident on July 8, 2017.

Causation

21The respondent raised the issue of causation in its submissions regarding the applicant’s substantial inability to perform the essential tasks of her pre-accident employment. Dr. Cloth’s CNRs reported that the applicant was involved in a second more serious motor vehicle accident on July 8, 2017. The respondent submitted that the applicant’s impairments were as a result of the second accident and not the first.

22The applicant provided no reply submissions and, therefore, failed to address the issue of causation raised by the respondent.

23I find that the applicant has failed to prove on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment as a result of the subject accident.

24The applicable test in making a causation determination is the “but for” test: whether the applicant would not have suffered a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident but for the subject accident.¹² The subject accident is not required to have been “the cause” – that is, the subject accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the subject accident need only to have been a “necessary cause.”¹³

25In the June 13, 2017 and June 27, 2017 progress notes by Shabnam Moulaei, registered psychotherapist (qualifying), the applicant reported that she had started working on her resume and that she was thinking about applying for jobs as a result of her financial situation. Therefore, prior to the second accident the applicant had begun making plans to return to the workforce.

26The applicant failed to submit any progress notes or any other evidence from Synergy Diagnostics after the July 8, 2017 accident despite still undergoing treatment until a Psychological Progress Report dated July 10, 2018. I find it appropriate to draw an adverse inference in this matter, as requested by the respondent, due to the absence of the evidence from Synergy Diagnostics after June 2017 until July 2018 given the applicant’s reports immediately prior to the second accident of her plans to return to the workforce.

27My drawing of an adverse inference is also supported by the gap in the applicant’s physical treatment. The CNRs from Ache Away Rehab show that the applicant’s last treatment prior to the second accident was on May 25, 2017 and there was a gap in her treatment until July 5, 2017. While the first July 2017 entry appears to be three days before the second accident, Dr. Cloth’s July 24, 2017 CNR entry noted that the applicant had started back to physiotherapy “last week.” Therefore, the timeline of the applicant’s resumption of physiotherapy is inconsistent, but what is clear is that she resumed physical treatment the same month as her second accident.

28The applicant’s plans to return to work in June 2017, the absence of evidence from Synergy Diagnostics after the second accident and the gap in the applicant’s physical treatment leads me to conclude that the applicant was not substantially unable to return to her pre-accident employment as a result of the subject accident after June 2017.

Entitlement to IRBs beyond 104 weeks of the accident – March 27, 2018 to date and ongoing

29To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which they are reasonably suited by education, training, or experience.¹⁴

30The only evidence before me regarding the applicant’s education is that she completed high school and a 4-year political science degree from York University.¹⁵ The applicant submitted that she obtained her degree in 2014 and that her first job after school was at Pro Impex Inc.¹⁶ There is no evidence before me, however, to support these submissions and her submissions do not constitute evidence. The applicant failed to submit any evidence regarding her training or work experience.

31Therefore, I am unable to undertake an analysis of whether the applicant was completely unable to engage in employment for which she is suited as there is insufficient evidence before me regarding her education, training, and experience. As a result, I find that the applicant has failed to prove on a balance of probabilities that she is entitled to IRBs for the period from March 27, 2018 to date and ongoing.

Interest

32As there are no benefits owing, no interest is payable.

CONCLUSION

33For the reasons outlined above, I find that:

(i) The applicant is not entitled to IRBs for the period of December 14, 2017 to date and ongoing;

(ii) No interest is payable; and

(iii) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2In her hearing submissions, the applicant withdrew her claim for an award under s. 10 of O. Reg. 664.
3. 3Schedule, s. 5(1).
4. 4June 22, 2016 Employer Confirmation Form, Written Submissions of the Applicant, Exhibit 2.
5. 5November 7, 2016 Insurer’s Examination Report by Dr. Konstantine Zakzanis, psychologist, Written Submissions of the Applicant, Exhibit 4.
6. 6December 5, 2017 Insurer’s Examination Report by Dr. Daniel Cohen, psychologist, Written Submissions of the Applicant, Exhibit 10.
7. 7Ibid.
8. 8Ibid. at page 5.
9. 9Ibid.
10. 102017 CanLII 82015 (ON LAT).
11. 11October 8, 2020 Motion Order.
12. 12Sabadash v. State Farm et al., 2019 ONSC 1121.
13. 13Ibid. at para. 39.
14. 14Schedule, s. 6(2)(b).
15. 15Supra note 5 at page 7 and supra note 6 at page 3.
16. 16Written Submissions of the Applicant, page 3.