Released Date: 06/01/2020
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:
[A.B.]
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
David Lackman, Counsel
For the Respondent:
Sarah Fasih, Counsel
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant [A.B.] (“applicant”) was involved in an automobile accident on October 18, 2017 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2The respondent Aviva General Insurance (“respondent”) denied payment of income replacement benefits (“IRBs”) claimed by the applicant in the amount of $385.00 per week starting October 25, 2017 and ongoing. The IRB was denied by the respondent because the applicant did not meet the eligibility criteria for an IRB.
3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for reinstatement of the IRB.
ISSUES
4The issues to be decided are:
i. Is the applicant entitled to receive an income replacement benefit in the amount of $385.00 per week for the period November 29, 2017 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5I find that the applicant is not entitled to an IRB in the amount of $385.00 per week, or in any other amount, for the period in dispute. No interest is payable. There is no special award.
LAW
6An 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, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. 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?
7In order to prove entitlement to IRBs post-104 weeks, s. 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.
8In the case of a person employed at the time of the accident, under s. 4 of the Schedule, the quantum of an IRB is calculated at 70% of a claimant’s gross pre-accident weekly income, up to a maximum of $400.00 per week.
9The onus is on the applicant to prove entitlement to IRB and quantum on a balance of probabilities.
ANALYSIS
Is the applicant entitled to IRB in the amount of $385.00 per week?
10The applicant was 23 years old at the time of the accident and employed full-time as a customer service representative/cashier at a gas station. The applicant says he stopped working after the accident because of the injuries he sustained. The applicant agreed to the Tribunal’s case conference Order setting out the disputed issue made October 8, 2019 that he claims IRB in the amount of $385.00 from November 29, 2017 and ongoing which the applicant says now is from October 25, 2017.
11To support his position that he meets the test for entitlement to IRB for both the pre and post-104 week periods, the applicant relies on the October 20, 2017 finding by his family physician, Dr. Lapena that he was totally disabled as a result of the accident; the OCF-3 disability certificate by his chiropractor Elilnilaa Manoharan dated July 17, 2018; reports from his occupational therapists, Ms. Sun and Ms. Kim. Further, the applicant submits he is still suffering from the injuries sustained in the accident which are preventing him from going back to his previous employment and to other suitable employment.
12The respondent submits the applicant is not entitled to IRB because Dr. Lapena did not indicate that the applicant was totally disabled beyond the period from October 23, 2017 to November 3, 2017, his thoracic spine was not fractured, Dr. Rusen, an IE orthopaedic surgeon, opined that the applicant did not sustain a fracture as a result of the accident. The respondent also submits that the applicant does not meet the entitlement test for IRB and there is no evidence submitted by the applicant that he discussed the possibility of modified duties with his employer and he did not make reasonable efforts to return to work.
What were the applicant’s accident-related injuries?
13The applicant submits that he suffered a fracture of the thoracic vertebra T12, whiplash associated disorder 2, sprain/strain of the thoracic spine, lumbar spine, shoulder joint and elbow, post-concussion syndrome, dizziness and disorders of initiating and maintaining sleep and that these injuries are preventing him from working.
14I find that the applicant did not suffer a fracture as a result of the accident based on the report of his orthopaedic surgeon Dr. McAllister dated April 6, 2018. Lakeshore Health Emerg’s report from the applicant’s October 19, 2017 diagnostic imaging notes that the applicant has pain on the T12 area and T12 anterior compression fracture. Also noted is that the applicant “looks well, not in any respl distress”, arm bruising, tenderness in lumbar and hematoma and that the patient came back requesting a sick note at 1p.m. The applicant was referred to Dr. McAllister. Although Dr. Lapena notes “Dg MVA/fracture T12” on October 28, 2017, this turned out to be incorrect. Dr. McAllister, who on November 28, 2017 diagnosed anterior wedge compression fracture later, noted that there was some controversy as to whether the applicant has a fracture at the T12 and arranged a CT scan. On April 6, 2018, Dr. McAllister opined that “there is no evidence to support the diagnosis of a fracture” and discharged the applicant noting only thoracic pain.
What were the essential tasks of the applicant’s employment?
15I find the essential tasks of the applicant’s employment at the time of the accident was to be a cashier with some ancillary tasks which varied but overall his employment was relatively light duty. Except for the duties of cashier, there are varying reports of tasks were included in the applicant’s employment. The applicant submits being a cashier at the gas station included receiving deliveries, stocking inventory, emptying and replenishing garbage bins, carrying and unloading boxes which weighed between 20 and 30 pounds.
16Dr. McAllister and applicant’s chiropractor Elilnilaa Manoharan indicate the applicant worked as a cashier at a gas station. Ms. Sun notes in her 2018 report that the applicant was a cashier at a gas station and that his duties included loading and unloading inventory, garbage removal and “lots of moving”. Ms. Kim notes in her 2018 report that the applicant was a cashier at a gas station and that his duties included garbage removal, cleaning the inside and outside of the store, stocking shelves and operating the cash register.
17The common thread is that the applicant worked at the time of the accident as a cashier at a gas station. There is little evidence of what other tasks his employment involved except the applicant’s self reports to various assessors which vary. There is no evidence from the employer about the duties of the applicant’s employment or affidavit evidence from the applicant.
Does the applicant suffer a substantial inability to complete the essential employment tasks?
18I find that the applicant does not suffer a substantial inability to complete the essential employment tasks based on a lack of medical evidence.
19Dr. Lapena’s evidence is not persuasive evidence of the applicant’s alleged substantial inability to perform the essential tasks of his employment for purposes of IRB. Dr. Lapena’s October 28, 2017 note that the applicant was “totally disabled on October 23, 2017 and I estimate through to November 3, 2017” is evidence of a temporary disability, not a permanent one, ending some three weeks after the accident and before November 29, 2017.
20Ms. Sun’s records, including her in-home functional assessment dated August 13, 2018, and Ms. Kim’s records, including her occupational therapy in-home assessment dated October 24, 2018 are not persuasive evidence of the applicant’s alleged substantial inability to perform the essential tasks of his employment. Ms. Sun and Ms. Kim, both occupational therapists, do not medically diagnose. Ms. Sun assesses the applicant’s functional level with respect to activities of daily living, need for attendant care and assistive devices and intervention to minimize disability and the majority of her report focuses on this rather than the applicant’s ability to return to work. With respect to the applicant’s work, Ms. Sun recommends only that his “vocational abilities will need to be assessed at a later date.” Similarly, Ms. Kim does not address in any detail the applicant’s ability to return to work other than to report that he “…is not medically cleared to return to work”. She does not say who has not “medically cleared” him or why. I give these two reports little weight.
21The July 17, 2018 disability certificate by applicant’s chiropractor Elilnilaa Manoharan is not persuasive evidence of the applicant’s alleged substantial inability to perform the essential tasks of his employment. Ms. Manoharan erroneously records that the applicant sustained a fracture in the accident despite Dr. McAlister’s opinion to the contrary. The disability certificate lists post-concussion syndrome as an injury from the accident. However, there is no evidence of such a medical diagnosis. There is insufficient explanation in the disability certificate of why the applicant cannot return to work except the statement that “Patient has not returned to work since the MVA due to the serious injuries that he sustained. When patient is medically cleared to return, modified hours and duties are recommended.” No information is provided as to who is to “medically clear” the applicant to return to work. The information about return to work is unclear and contradictory. Modified hours and duties are recommended when the applicant does return to work. The answer “no” is given in response to the question “can the applicant return to work on modified hours and/or duties?” The time period of the disability is said to be “9-12 weeks.”
22While there are some noted limitations of the applicant’s ability to lift and carry weight, and in stooping, kneeling, crouching, pushing and pulling and range of motion, none of the applicant’s physicians have opined that the applicant suffers a substantial inability to complete the essential tasks of his employment as a cashier. To the contrary, Dr. Lapena found the applicant totally disabled for a period of two weeks in the fall of 2017 and Dr. McAlister discharged him in April, 2018 after a CT scan. Taken together, the weight of the evidence from these two physicians is that the applicant has no substantial ongoing injury as a result of the accident. Even if there may be some tasks of his employment that the applicant might not be able to return to, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a cashier. The onus of proof is on the applicant and I find that he has failed to meet it.
Does the applicant suffer a complete inability to engage in any employment?
23As the applicant has not satisfied his burden of substantiating entitlement to pre-104 week income replacement benefit, the post-104 week income replacement benefit test of complete inability to engage in any employment cannot be met.
Interest
24As no benefits are payable, no interest is payable.
Is the applicant entitled to a Special Award
25Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As there are no IRBs payable, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there will be no award under Ontario Regulation 664.
ORDER
26For these reasons above, I find that the applicant is not entitled to an IRB as claimed. The applicant’s claim is dismissed. No interest is payable. There is no special award.
Released: June 1, 2020
Avril A. Farlam
Vice Chair