N.F. v. Aviva Insurance Canada, 2020 CanLII 61453

Citation: N.F. vs. Aviva Insurance Canada, 2020 ONLAT 18-007077/AABS

Date: July 30, 2020

Tribunal File Number: 18-007077/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:

N.F.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

Representative for the Applicant:

Mitchell Kent, Paralegal

Representative for the Respondent:

Ramandeep Pandher, Counsel

Held by In-Person/Teleconference Hearing:

July 3, 2019 / February 13, 2020

OVERVIEW

1The applicant was injured in a motor vehicle accident on December 18, 2016. To assist in his recovery, he applied for benefits payable under the Statutory Accident Benefits Schedule (the “Schedule”).¹ When the respondent denied some of these requests, the applicant filed an application with the Tribunal.

2In addition to interest on any overdue payments, the applicant is requesting:

(a) An income replacement benefit in the amount of $400.00 per week (from March 2, 2018 to December 18, 2018); and,

(b) $2,034.00 for the cost of a chronic pain assessment recommended by Midland Wellness Centre (in a treatment plan submitted on July 17, 2017).

3For the reasons to follow, I find the applicant is entitled to the benefits in dispute.

ENTITLEMENT TO THE INCOME REPLACEMENT BENEFIT

4Section 5(1) of the Schedule states that insured persons are entitled to an income replacement benefit if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”.²

Parties’ Positions

5According to the applicant, his accident-related physical and psychological impairments rendered him unable to complete the essential tasks of his pre-accident employment as a restaurant manager. Specifically, medical evidence clearly establishes that his left knee injury made it challenging to stay on his feet, and his accident-related distress left him unable to regularly deal with the public. The applicant also contended that the respondent’s expert opinions either support his claim of psychological distress (i.e., the report of Dr. Arpita Biswas, dated February 13, 2018) or should be disregarded (i.e., Dr. Paul Tepperman’s report, dated February 13, 2018).

6Then, in regard to the quantum of the benefit, the applicant conceded that there were errors in his original Canada Revenue Agency (“CRA”) filings, but his updated filings provide an accurate representation of his pre-accident earnings.

7The respondent contested the applicant’s entitlement to an income replacement benefit for a few reasons. First, the respondent highlighted how the applicant did not provide any expert evidence during the hearing. Second, in addition to his inconsistent testimony before the Tribunal, the respondent’s experts raised serious concerns about the applicant’s credibility, e.g., he reacted in an unusual way during Dr. Tepperman’s physical examination, and Dr. Biswas found signs of exaggeration in her psychometric testing.

8In the alternative, the respondent challenged the applicant’s quantum calculation. Since the applicant started working again on an unspecified date in November 2018, it argued that his entitlement to an income replacement benefit should only run until October 31, 2018. Further, even setting aside the conflicting evidence in the applicant’s financial records and tax filings, his post-accident earnings appear to exceed any possible entitlement he may have to this benefit.

Essential Tasks of the Applicant’s Pre-Accident Employment

9To apply the “substantial inability” standard, I will have to make the following determinations:

(a) What were the “essential tasks” of the applicant’s pre-accident employment?

(b) What, if any, impairments were caused by the accident?

(c) Did at least one of the applicant’s accident-related impairments cause a “substantial inability” to perform these “essential tasks” during the period in question?

10The two OCF-2 forms provided by the applicant’s former employer are consistent in their descriptions of his pre-accident work (dated January 19, 2017 and April 6, 2017). Specifically, his former employer indicated that the applicant worked as a restaurant manager, with his essential tasks being customer relations, managing staff, and serving.

11Further information about this role is then found in the parties’ expert reports. For instance, in a report from his psychologist, Dr. Judith Pilowsky, the applicant reported that this full-time position required him to order supplies for the restaurant. Then, when interviewed by the respondent’s psychological assessor, Dr. Biswas, the applicant added that he was responsible for taking orders, cooking, and ensuring that the “back end” of the business was looked after. He also noted that he worked about 50 hours per week.

12Finally, during his testimony, the applicant added more detail about the physical nature of this position. Specifically, he was required to: carry heavy loads of dishes; lift appliances; and spend almost his entire day on his feet. He also noted that some weeks he worked 40 hours.

13Taken together, I find that the essential tasks of the applicant’s pre-accident employment were both physical and social in nature: i.e., managing staff, interacting with the public, spending long periods of time standing or moving about, and assisting with various tasks around the restaurant (e.g., cooking, serving, etc.). Though I have been provided with differing weekly hours, I am satisfied that the applicant’s position was full-time.

14Moving on to the question of accident-related impairments, I am then satisfied that the applicant suffered from significant, left knee pain as a result of the accident. Chief among the applicant’s medical evidence are the clinical notes and records of MCI Atrium and the Appletree Medical Group.

15To begin, after complaining about his left knee to professionals at MCI Atrium, the applicant was referred to Dr. Nandini Sathi, a practitioner specializing in sports medicine. In a report dated April 26, 2017, Dr. Sathi specifically linked the accident to this pain. Dr. Sathi also noted “some swelling” in the left knee that was not present in the right.

16The applicant again complained about knee pain during his visits to the Appletree Medical Group on May 16 and November 27, 2017. These complaints eventually led to a referral to an orthopaedic surgeon.

17In his report dated December 6, 2017, an orthopaedic surgeon with the Appletree Medical Group, Dr. Mohammed Khodabandehloo, noted that the applicant was still reporting left knee pain. During a physical examination, Dr. Khodabandehloo reported “tenderness on the left patellofemoral joint”, as well as “obvious effusion in the left knee”. He also reviewed an MRI (likely from May 2017) that showed a ganglion cyst in this knee. Taken together, Dr. Khodabandehloo recommended cortisone injections to help manage the applicant’s “severe symptoms”.

18During his next visit with Dr. Khodabandehloo on January 17, 2018, the applicant reported significant improvement in his pain levels on account of the injection. However, for fear of a meniscal tear, the surgeon referred the applicant to undergo another MRI of his left knee.

19Conducted on January 19, 2018, this diagnostic imaging found no evidence of a tear, though some fluid was noted in the knee. This finding was thought to be the result of a “prior shear injury of Hoffa’s fat pad.”

20In reviewing this report with the applicant on February 14, 2018, Dr. Khodabandehloo recommended “a course of anti-inflammatory medication, physiotherapy and acupuncture.” Of note, the applicant reported during this visit that he was “able to walk one or two miles.”

21The next visit with the surgeon took place on March 28, 2018. At this time, the applicant reported that physiotherapy and the medication were not helping, and he could not “perform his activities in the kitchen.” More physical therapy and medications were recommended by Dr. Khodabandehloo, and he later provided the applicant with a medical note stating that he would be unable to work from March 28 to September 28, 2018 due to his knee pain.

22In light of this history, I am satisfied that the applicant experienced significant, ongoing left knee pain as a result of the accident. Not only does the timeline of his complaints (and the finding made by Dr. Sathi) strongly suggest that this pain arose in response to the accident, the reports from Dr. Khodabandehloo provide compelling proof that it continued well into 2018.

Substantial Inability

23By accepting the existence of this ongoing pain, I am then satisfied that this accident-related impairment led to a “substantial inability to perform the essential tasks” of the applicant’s pre-accident employment.

24Beyond managing staff and ensuring happy customers, the applicant was responsible for a number of physical tasks: namely, cooking, carrying, and serving. Therefore, since the applicant suffered from significant knee pain that limited his ability to walk to about a mile or two, it is reasonable to infer that these essential, physical tasks would be difficult to perform on a full-time basis. That is, with long periods of standing interspliced with quick movements back and forth between customers and the kitchen, I accept that ongoing pain in one’s knee would significantly interfere with the performance of these essential tasks.

25Further, though there are limited details about this position, a letter from another employer (dated April 25, 2018) stated that the applicant tried working as a manager at a different restaurant during “the week of April 16 to April 20”. According to the letter, the applicant’s medical condition eventually required him to leave this position.

26Finally, though I have based my conclusion on the applicant’s physical condition, I can infer that this pain likely led to a level of frustration that would have also made emotional regulation difficult to maintain. Without proper emotional regulation, it is likely social relations with his staff and customers also suffered.

Respondent’s Entitlement Arguments

27Though the respondent raised a number of compelling arguments, I still find the applicant has met his onus on a balance of probabilities.

28First, the respondent expressed concerns with the applicant’s credibility. While there are valid questions raised by inconsistences in his testimony (e.g., he could not remember generic details about his recent employment history), I do not place much weight on this concern, as the documentary evidence before me is sufficient to establish entitlement to an income replacement benefit.

29Further, though concerns about his credibility could cast doubts on the applicant’s self-reported symptoms, the medical evidence from his treating practitioners did not rest solely on subjective reports. Instead, these practitioners had the benefit of diagnostic imaging and their own physical examinations—objective evidence that allowed them to scrutinize the information they were receiving from the applicant.

30It should also be noted that, while the respondent highlighted the applicant’s scores on Dr. Biswas’ psychometric testing to further question his credibility, I find this concern is overstated. That is, though the applicant’s scores on one of Dr. Biswas’ measures did skew “towards symptom exaggeration”, she interpreted this result to be a possible “cry for help”. Additionally, the applicant’s profile on this specific test was, ultimately, found to be valid.

31Second, the respondent relied on its assessors’ findings to counter the narrative put forward by the applicant. As my conclusion rests mainly on the applicant’s physical condition, I will focus on the opinion of the respondent’s general practitioner, Dr. Tepperman.

32Briefly, following a physical examination on January 30, 2018, Dr. Tepperman opined that much of the applicant’s physical presentation was “non-organic”. While he was able to easily move about during the informal parts of the assessment (e.g., when donning his boots), the applicant complained of significant pain during the formal evaluation. There were also results that did not make sense from a physical perspective, e.g., the applicant reported pain in the left knee even when it was being supported, as well as when the amount of movement was insufficient to trigger such a response. Due to these inconsistencies, Dr. Tepperman concluded that there was “no consistent objective evidence of musculoskeletal impairment”, and there was no indication that the applicant could not perform the essential tasks of being a restaurant manager.

33Dr. Tepperman reiterated his findings during his testimony before the Tribunal, and he also added that the aforementioned imaging showing a ganglion cyst in the left knee was irrelevant, as this cyst could not be related to the accident. Regardless, these cysts are usually not painful in the first place.

34Though this report again raises questions about the applicant’s self-reported symptomology, I still find the opinion of Dr. Khodabandehloo to be more compelling, as he had the benefit of a longstanding relationship with the applicant. That is, as opposed to Dr. Tepperman (who only met with the applicant during one, 35-minute assessment), this practitioner has observed him over many months. As such, he has also had the ability to test the veracity and timeline of the applicant’s pain complaints over multiple appointments.

35Furthermore, the records from the applicant’s treating practitioners show that the applicant has not just reported the same pain levels time and again. Rather, he has stated when a particular form of treatment provided him some relief—evidence that these pain complaints are honest appraisals of his condition.

36Third, the respondent questioned whether the accident had caused the applicant’s left knee injury. Though the submission of pre-accident medical records would have been helpful, I still place significant weight on the report of Dr. Sathi wherein a causal link was established between the accident and the injury. This assessor also noted that there was no pre-accident injury to the knee.

37Finally, the respondent challenged the applicant’s lack of expert evidence. Again, affidavits and expert testimony would have added valuable context to the documentary evidence I was provided, as these practitioners could have been subjected to cross-examination. However, the comprehensive medical records that the applicant did submit provided sufficient evidence to demonstrate entitlement to this benefit on a balance of probabilities.

QUANTUM OF THE INCOME REPLACEMENT BENEFIT

38As noted above, there is a debate between the parties over the quantum of the applicant’s income replacement benefit.

39Following the conclusion of the in-person portion of the hearing, the applicant provided the Tribunal with an updated version of his 2016 Notice of Assessment. While the original Notice of Assessment stated his income for 2016 was $3,000.00, this updated Assessment now lists his 2016 income as $37,440.00.

40The applicant testified that he first learned about this error during the in-person portion of this hearing. Therefore, since 2016 is the year used to determine the quantum of his income replacement benefit, he immediately took steps to correct this mistake.

41In an order dated November 26, 2019, I allowed these new CRA filings into the hearing record, and so the applicant argued that the Schedule instructs the Tribunal to accept this new amount.

42Specifically, s. 4(6) of the Schedule states that any amendments made by the CRA can considered when determining an applicant’s income for the purposes of calculating the quantum of his or her income replacement benefit:

The amount of a person’s gross annual employment income… may be adjusted for the purposes of this Part to reflect any subsequent change in the amount determined by the Canada Revenue Agency under the Income Tax Act (Canada) or by the relevant government or agency under the legislation of another jurisdiction that imposes a tax calculated by reference to income.

43The CRA has now assessed the applicant’s gross income for the 2016 tax year to be $37,440.00, so I will accept this amount for the purpose of calculating the quantum of this benefit. I would also add that this sum is in line with the year to date amount listed in his final paystub from 2016.

44If this amount is divided by 52 weeks and then subject to the 70% limit under the Schedule, the total is well over the policy limit of $400.00 per week.

Respondent’s Quantum Arguments

45The respondent disputed the use of this new income amount for several reasons.

46First, in light of the applicant’s time as an economics student, the respondent contended that it is highly unlikely that he would have missed the dramatic differences in his financial records from 2016. That is, the total year to date amount in his paystubs was $37,440.00, yet the income reported on the T4 from his employer was just $9,000.00, and his Notice of Assessment was lower still at $3,000.00. The applicant is not credible, and so his updated records should not be considered an accurate representation of his income.

47I do not accept this argument, as there is no subjective element to the language in the Schedule concerning the calculation of one’s pre-accident income. The particular knowledge that one may possess about Canada’s tax system is not a feature of this analysis, nor is an applicant’s credibility. Rather, the focus is on the amount accepted by the CRA.

48The respondent also brought the Tribunal’s attention to s. 4(5) of the Schedule:

If, under the Income Tax Act (Canada) or legislation of another jurisdiction that imposes a tax calculated by reference to income, a person is required to report the amount of his or her income, the person’s income before an accident shall be determined for the purposes of this Part without reference to any income the person has failed to report contrary to that Act or legislation.

Since the applicant did not report his full income to the CRA at first instance, he must be held to the lower amount in his original Notice of Assessment. This original amount results in a much lower weekly quantum.

49When considering the difference in language between ss. 4(5) and (6), there is an argument to be made to uphold this interpretation of the Schedule. That is, while s. 4(5) uses the term “person” as the subject who is performing the action in this clause (i.e., it is the “person” who is putting forward an amount to the CRA), s. 4(6) does not reference the “person” as the subject in question. Instead, the “Canada Revenue Agency” is the subject in this clause, as it is the entity who has performed the action: i.e., it has “determined” a new income amount. Therefore, this use of the term “Canada Revenue Agency” as the subject in s. 4(6) could be interpreted to indicate the Legislature’s intention that only changes to one’s income made solely at the impetus of the CRA will be captured under the auspices of this section. Put another way, s. 4(6) should only be engaged if the CRA itself realizes that there needs to be a reassessment of a person’s income.

50Since the reassessment of the applicant’s 2016 income took place because the applicant himself chose to provide an updated accounting of his income to the CRA, this interpretation would mean he is not entitled to rely on this new amount.

51Though somewhat compelling when these two sections are read in isolation, I, ultimately, do not accept this interpretation because it ignores the consumer protection mandate that underpins the entire Schedule. Instead, I find this mandate is best protected through an interpretation of these provisions that is not concerned about what caused the CRA to issue a reassessment. Rather, so long as the CRA has “determined” that a reassessment must take place, this updated amount should be relied upon by the Tribunal.

52The respondent has also asked that I limit the applicant’s entitlement to October 31, 2018, as he testified during the hearing about starting a new job in November 2018. Without a start date for this position, I am not in a position to arbitrarily limit his entitlement to October 31, 2018.

53Further, though I was provided with a copy of the applicant’s Notice of Assessment for the 2018 taxation year, I do not have any information as to when this amount was received. For instance, I have no information about any income the applicant may have made during his brief stint as a manager at another restaurant in April 2018. Without this information, I am, therefore, limited to awarding the applicant his income replacement benefit for the requested period, with the caveat that the respondent may deduct any post-accident income received during this period in accordance with s. 7(3) of the Schedule.

54Finally, the respondent argued that the applicant should have called his accountant to testify about these changes to his tax filings. I do not place any weight on the applicant’s decision not to call his accountant to testify, as I fail to see what relevant evidence the accountant could have provided. Instead, the records spoke for themselves.

CHRONIC PAIN ASSESSMENT

55Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

56Under the heading “Additional Comments”, the disputed treatment plan from Dr. Daniel Yim at the Midland Wellness Centre described the proposed chronic pain assessment (and the goals of this testing) as follows:

It is necessary to obtain a Chronic Pain Assessment considering that the patient’s pain and dysfunction has persisted longer than the temporal course of natural healing… It is anticipated that the assessment will include the following components in order to provide the Information required to plan treatment: Clinical Diagnostic Interview, Pain disability testing, review of external file materials, consultation, documentation and feedback interview.

57I find the applicant has demonstrated his entitlement to the disputed chronic pain assessment.

58As the medical records summarized above demonstrate, the applicant has consistently complained about pain since his initial medical visits following the accident. Though this treatment plan was submitted relatively early on in his recovery, the applicant’s accident-related pain had already been well documented during several medical visits leading up to the submission of this plan in July 2017. Most notably, Dr. Sathi’s report from April 2017 specifically linked the applicant’s left knee pain to the accident. I would also highlight that swelling in the left knee was still observed by Dr. Sathi several months after the accident. As such, I am satisfied that there was sufficient evidence in July 2017 to demonstrate the reasonable and necessary nature of a chronic pain assessment focused on developing a course of recovery for the applicant.

59By citing the applicant’s decision not to tender any expert evidence, as well as the lack of treatment records from Midland Wellness Centre, the respondent claimed that the applicant had not met his evidentiary onus. The respondent also highlighted how the applicant could not remember during his testimony whether he had met with Dr. Yim, i.e., the author of the disputed treatment plan.

60Similar to the arguments discussed above, I again accept that this additional evidence would have been helpful. However, in determining whether an assessment is reasonable and necessary, the focus is on what information was available to the parties at the time of the treatment plan’s submission. With this focus in mind, I am satisfied that the medical records from this period were sufficient to establish the reasonable and necessary nature of this assessment.

61The respondent also argued that the applicant has not demonstrated any of the usual signs of chronic pain, e.g., he did not fill any of his prescriptions, he has good social supports, etc. Beyond the fact that an applicant is not required to definitively demonstrate the existence of a pain condition before a chronic pain assessment is payable, I find that his accident-related pain has caused limitations suggestive of chronic pain. That is, in addition to the occupational limitations listed above, Dr. Pilowsky reported that the applicant had to move in with his parents following the accident, due, in part, to pain making chores difficult to manage on his own. This move was also documented by Dr. Tepperman during his assessment.

62I do note that Dr. Biswas suggested in her report that the applicant’s family had always completed these household tasks for the applicant, but this observation does not match up with other comments made in her report. That is, she also wrote that the applicant started living with his family after the accident, and so I find it unlikely that family members would have performed all of the applicant’s household chores when he was not living with them.

63Regardless, I find that there was sufficient evidence at the time that this plan was submitted to establish that a chronic pain assessment is reasonable and necessary.

ORDER

64The applicant has demonstrated his entitlement to an income replacement benefit in the amount of $400.00 per week. This benefit is payable for the period of March 2, 2018 to December 18, 2018, subject to deductions for income made during this period in accordance with s. 7(3) of the Schedule.

65He has also demonstrated his entitlement to the disputed chronic pain assessment (as recommended in the treatment plan submitted on July 17, 2017).

66The applicant is entitled to interest on these overdue payments, in accordance with s. 51 of the Schedule.

Released: July 30, 2020

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