Tribunal File Number: 19-000287/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
W.A.
Applicant
And
Aviva General Insurance
Respondent
DECISION
Adjudicator: Avril A. Farlam, Vice Chair
Appearances:
For the Applicant: Joshua Gatreau, Counsel
For the Respondent: Kristofer B. Angle, Counsel
HEARD In Writing: September 23, 2019
OVERVIEW
1The applicant, [W.A.] (“applicant”), was involved in an automobile accident on September 11, 2016, and sustained injuries as a result of which he stopped working. The applicant applied for income replacement benefits (“IRBs”) from the respondent, Aviva General Insurance (“respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”).
2The respondent paid IRBs until March 22, 2017, when it concluded that the applicant was able to return to work and, on that basis, terminated the benefit. The applicant disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution.
ISSUES TO BE DECIDED
3The issues to be decided are:
i. Is the applicant entitled to receive IRBs in the amount of $162.20 per week from March 22, 2017 to July 26, 2017 and from January 31, 2018 to January 14, 2019?2
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is not entitled to IRB as claimed or interest.
BACKGROUND
5The applicant is 29 years of age and came to Canada in 2013 as a refugee from Sudan. He has a college degree in accounting from Sudan which is not transferable without further schooling. In Canada, he worked as a cashier/assistant butcher and was earning $17.00 an hour at the time of the accident. He currently earns $14.00 an hour at the same employment having accepted a lower wage given what he says is accident-related decreased ability. The applicant submits he has a manual labour position.
6Shortly after the accident, the applicant complained of right-sided neck, back, chest wall and right shoulder pain, sleeping difficulties, headaches, blurred vision, anxiety and dizziness. The applicant also reports pre-existing psychological injuries.
LAW AND ANALYSIS
Is the applicant entitled to IRB?
7The applicant claims IRBs in the amount of $162.20 per week for the period March 22, 2017 to July 26, 2017, which is within 104 weeks after the accident. He also claims IRBs for the period January 31, 2018 to January 14, 2019, which is post-104 weeks after the accident.
8The entitlement test for IRBs changes 104 weeks after the accident and is more difficult to meet post-104 weeks.
9The applicant submits he meets the test for IRBs for both the pre- and post-104 week periods because of the following:
a. an OCF-3, disability certificate, completed by Dr. Clappison, chiropractor, and OCF-3, disability certificate, completed by Dr. Manias, chiropractor, along with other medical reports and records, support his entitlement to IRBs;
b. He is still suffering from injuries sustained in the accident.
10The respondent submits the applicant is not entitled to IRBs because:
c. He has not proven his entitlement to IRBs, for both the 104-week period and post-104 week period.
d. The applicant is working.
11In order to prove entitlement to IRBs for up to the first 104 weeks, section 5(1) of the Schedule provides that the applicant must suffer a substantial inability to perform the essential tasks of the pre-accident employment. Therefore, a comparison needs to be made to determine the following:
a. what were the injuries because of the accident?
b. what are the essential tasks of the applicant’s employment? and,
c. does the applicant suffer a substantial inability to complete them?
12In order to prove entitlement to IRBs post-104 weeks, section 6(2) of the Schedule provides that the applicant must suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience.
13The onus is on the applicant to prove entitlement to IRB on a balance of probabilities.
What were the applicant’s accident-related injuries?
14I find that the applicant has failed to prove with consistent and reliable evidence the injuries that he alleges he sustained as a result of an accident. The evidence provided by the applicant is unreliable and inconsistent both as to the accident the applicant was involved in and what injuries he may have suffered.
15The applicant’s OCF-1 dated September 13, 2016 records that he was a passenger travelling on Rexdale Blvd. when suddenly the driver lost control and struck a wall. His injuries are described as “back, neck, right shoulder, trouble sleeping, headaches, blurred vision, anxiety, dizziness” [emphasis added]. The clinical note dated the next day, September 14, 2016, filed by the respondent records that the applicant said he was “hit by a car while was sitting in the back seat, with seat belts” and records neck and right chest pain, no headache or dizziness [emphasis added].
16The disability certificate completed by Dr. Clappison, chiropractor, dated December 14, 2016 records the applicant’s name as [W.A.], date of birth as November 11, 1989 and a residential address in Hamilton. This disability certificate describes physical injuries but does not mention any psychological injuries.
17The disability certificate completed by Dr. Manias, chiropractor, some two weeks later, dated December 30, 2016 records the applicant’s name as [T.A.E], gives a different date of birth, a residential address in Toronto and records that the patient is having substantial difficulty with schooling as a result of the September 11, 2016 motor vehicle accident. This disability certificate describes various physical injuries along with head injury, concussion, headache, dizziness, nausea.
18These are serious inconsistencies in the evidence before me which leave me without reliable evidence on which to base an analysis of the applicant’s entitlement to IRBs.
What were the essential tasks of the applicant’s employment?
19Likewise, I have no reliable and consistent evidence before me about the essential tasks of the applicant’s employment. There was no affidavit evidence from the applicant describing the essential tasks of his employment.
20In submissions, applicant’s counsel described his employment as “cashier/assistant butcher” and submitted a general dictionary definition of “butcher” and no explanation at all of the essential tasks of “cashier”.
21The applicant’s OCF-1 dated September 13, 2016 records that, “2015 to present,” the applicant worked at [a market] as a “butcher”. The OCF-2 dated September 21, 2016 and signed on behalf of […] confirms his employment at […]. as an “assistant butcher…cutting meat, prepare packages to be displayed” as a full-time employee who does not contribute to Canada Pension Plan. The record of employment from […] dated February 10, 2018 describes the applicant’s occupation as “cashair” [sic].
22These documents suggest the applicant was employed at [a market] and […]. However, none of these documents provide me with the necessary evidence about the essential tasks of the applicant’s employment at either It is the applicant’s onus to prove what the essential tasks of his employment were so that the appropriate analysis can be made for his entitlement or lack of entitlement to IRBs.
Does the applicant suffer a substantial inability to perform his essential employment tasks of employment?
23Because the applicant has failed to prove what his accident-related injuries are and the essential tasks of his employment, I find the applicant has created an evidentiary deficit that prevents me from making further findings on his entitlement to IRB pre-104 weeks.
Does the applicant suffer a complete inability to engage in any employment?
24In order to prove entitlement to IRB after the first 104 weeks, section 6(2) of the Schedule provides that the applicant must suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience. Therefore, a comparison needs to be made to determine the following:
a. what are possible employment opportunities that the applicant is reasonably suited for because of education, training or experience?
b. does the applicant suffer a complete inability to engage in them?
25Because the applicant has failed to prove that he qualifies within the 104 weeks, he is precluded from receipt of IRBs after the 104 week period.
26For the reasons set out above, I find that the applicant has not met the burden of proving that he is entitled to IRBs for any period of time.
27In breach of the Tribunal’s Order made May 7, 2019, which limited the respondent’s submissions for this hearing to 10 pages, the respondent submitted for this hearing a 17- page submission. On the basis of procedural fairness, the applicant objected to the length of the respondent’s submission and requested that I disregard the part of the submissions which exceed the ordered length. I note that the respondent did not bring a motion seeking to vary the Order, but simply made submissions which exceed the length ordered. I agree that this is procedurally unfair to the applicant. Therefore, I have not considered the part of the respondent’s submission exceeding the length ordered in making the above findings.
Interest
28As no benefits are payable, no interest is payable.
CONCLUSION
29For the reasons outlined above, I find that the applicant is not entitled to IRBs as claimed. The applicant’s claim is dismissed.
Released: April 1, 2020
Avril A. Farlam, Vice Chair
Footnotes
- O. Reg. 34/10.
- The applicant has clarified that the claim for IRB is limited to these periods: Written Submissions of the Applicant, para 2.