P.T. v. Aviva General Insurance, 2020 CanLII 61456

Citation: P.T. vs. Aviva General Insurance, 2020 ONLAT 19-002373/AABS

Released Date: May 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:

P.T.

Applicant

and

Aviva General Insurance

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

[P.T.], Applicant

Joyann Oliver, Paralegal

For the Respondent:

Christopher Viveiros, Representative

Sophia Chaudri, Counsel

Court Reporter:

Andrea Kovats

HEARD: by Teleconference:

April 27, 2020 with Written Submissions Due: March 13, April 6 and April 20 2020¹

OVERVIEW

1The applicant ("P.T."), currently 29 years of age, was injured in an accident on August 11, 2016, when his vehicle was struck from behind. P.T. did not seek immediate medical attention and an ambulance was not called at the scene. P.T. attended a walk-in clinic the next day after the accident. He sought benefits from the respondent, Aviva General Insurance ("Aviva"), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010² (Schedule).

2Aviva deemed his injuries to fall within the Minor Injury Guideline (the "MIG") which caps medical and rehabilitation benefits at $3,500.00. However, P.T. did receive payments for an income replacement benefit ("IRB") which were terminated by Aviva on May 13, 2017, on the basis of s. 44 Insurer's Examinations ("IE") that determined P.T. no longer met the criteria for an IRB related to causation. P.T. disagreed with Aviva's decision with respect to the IRB and the MIG designation. He submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") to dispute the denials as well as payment of two treatment plans.

3The parties participated in a case conference but were unable to resolve their dispute and, thus, proceeded to this combination type hearing.

ISSUES TO BE DECIDED

4The following are the issues to be decided, as per the Case Conference Order dated October 17, 2019:³

1. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

2. Is the applicant entitled to receive a weekly IRB benefit in the amount of $400.00 from May 13, 2017 to August 11, 2019?

3. Is the applicant entitled to receive medical benefit in the amount of $1,776.70 for chiropractic treatment, recommended by Gibson Wellness Centre in a treatment plan dated January 19, 2017, and denied by the respondent on March 2, 2017?

4. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment, recommended by Finch Health Centre Inc. in a treatment plan dated October 15, 2018, and denied by the respondent on October 26, 2018?

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

RESULT

5P.T.'s injuries are predominantly minor as defined by s. 3 of the Schedule. Accordingly, his entitlement to medical benefits is capped at $3,500 under the MIG which have been exhausted. As a result, P.T. is not entitled to the proposed treatment and assessment plans.

6Further, I find that P.T. has not proven that he is entitled to an IRB for the period in dispute.

7As no benefits are payable, P.T. is not entitled to any interest.

ANALYSIS

The Minor Injury Guideline

8Section 3(1) of the Schedule defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury." The Schedule also defines what these terms for injuries mean.

9The onus is on the applicant to show that his injuries fall outside of the MIG.⁴ Unfortunately the applicant has not specifically addressed the MIG issue in his written submissions. The in-person portion of the hearing was restricted to the IRB issue alone although the applicant did testify about the nature of his injuries. P.T. testified that all of his physical accident related injuries have resolved except for his left shoulder. My understanding of the applicant's position is that he should be removed from the MIG because he suffers from chronic pain and some physical injuries resulting from the accident, mainly related to his left shoulder. Aviva submits that P.T.'s alleged complaints and the diagnoses made fall squarely within the MIG.

10I agree with Aviva. I find the physical injuries that P.T. sustained from the accident are "minor injuries" as defined in the Schedule and that P.T. is not removed from the MIG as a result of chronic pain syndrome. Therefore, his treatment entitlement remains within the financial limits of the MIG of $3,500.00. Moreover, I find that his shoulder injury is unrelated to the accident.

Physical injuries and chronic pain

Physical Injuries

11I find the physical injuries documented in the weeks and months after P.T.'s accident, fall within the definition of "minor injury" under the Schedule. In a Disability Certificate ("OCF-3") dated September 8, 2016, E. Encarnacion, physiotherapist, listed multiples sprain and strains, sleep disorders and headaches as the injuries from the accident. Under Part 6, the physiotherapist concluded that P.T. was disabled from work and activities of a normal life for an anticipated duration of 9-12 weeks.

12I find little to suggest that P.T.'s physical injuries and resulting pain are severe enough to require treatment beyond the MIG. The applicant saw his family doctor Dr. Mikhail only 6 times in almost a 4-year period since the accident. The only diagnostic imaging report of P.T.'s left shoulder from Gam X-ray Limited dated February 27, 2017, was negative and revealed no tear or bone or joint abnormality aside from tendinopathy and bursitis. After the completion of this ultra sound, P.T. was never referred to a specialist to further investigate or to treat the bursitis. Even if I accept that P.T. has lingering physical pain as a result of any inflammation that can be definitively traced to the accident, I find that he has not demonstrated that recovery from his pain is practically prevented if he is kept within the MIG.

13Regardless, the burden of proof still lies with the applicant to show that his left shoulder pain is related to the accident. I have no reason to doubt the applicant's contention that he suffered some sort of injury to his left shoulder. However, even if I accept that it was as a result of the accident (which I do not) the problem for the applicant still lies in the diagnosis. The applicant is suffering from bursitis, or in plain words, some form of inflammation or tendinitis in his left shoulder. It is an otherwise an unremarkable injury. In the absence of evidence that there is a complete or even partial tear in P.T.'s shoulder, which the ultrasound rules out the bursitis the inflammation or irritation of a tendon is captured within the definition of minor injury under the Schedule and can be treated within the MIG.

14Finally, I am not persuaded that the bursitis and tendinopathy was caused by the accident. The applicant has not advanced any objective medical evidence that connects this condition to the accident. While I acknowledge that this condition most likely causes the applicant some discomfort, I cannot attribute it to the accident. P.T. provided no medical opinion or additional documentation to rebut the finding of Dr. Walters that the accident is not connected to the current presentation and not the cause of his current impairment. Moreover, there was direct evidence at the teleconference portion of the hearing that P.T. suffered an injury to his shoulder after the accident at home while reaching for a remote. This was consistent with the clinical note from Dr. Peralta dated May 10, 2017 that P.T. was recently diagnosed with left shoulder bursitis and supraspinatus tendinopathy and was stretching shoulder reaching for TV remote and felt intermittent pain.

15I found that there were several discrepancies in the applicant's testimony, especially when certain answers were tested against the documentary evidence filed with no satisfactory explanation provided, such that I had some concerns regarding the applicant's credibility. For example, new relevant medical information was only discovered by the respondent during P.T.'s cross examination (as a result of receipt of the OHIP summaries provided mere days before start of the hearing). When P.T. was questioned about these entries P.T. advised that in January 2016 (only about 8 months before the accident) he was seen in emergency for an injured his hand. On this issue, P.T. seemed uncertain and somewhat evasive about the exact nature and extent of his injuries from this incident. Again, no records or the diagnostic imaging from this event were ever provided despite the OHIP summaries making a reference to some form of diagnostics having been completed at that time. Earlier in direct testimony, P.T. unequivocally stated that he was healthy and never needed a doctor prior to the August 11, 2016 accident. It also appears that none of the IE assessors or Dr. Brooks were ever aware of this incident where P.T. ended up in the emergency room. P.T. reported to Dr. Walters as part of an IE assessment that he had no previous surgeries or fractures. Similarly, P.T. reported to Dr. Koepfler during the psychological assessment that he had no prior fractures, sports injuries or surgeries.

Chronic Pain

16Similarly, I agree with Aviva that there is limited evidence of functionally-disabling chronic pain in the medical documentation to justify removal from the MIG on that basis. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions. Unfortunately, the phrase "chronic pain" is not defined in the Schedule. The applicant did not provide me with any definition of "chronic pain." In turn, the respondent submits that chronic pain is identified as a "severe, debilitating condition distinct from ongoing or recurring pain". The respondent also submits that the claim of chronic pain must be assessed against 6 criteria described in the American Medical Association (AMA) Guides, which state that at least 3 of them must be met for a diagnosis. I am not bound by the criteria in the Guides and do not entirely agree with this methodology for the reasons I have discussed in A.H. vs. TD General Insurance Company.⁵

17In my view, a simpler starting point that everyone can understand is that chronic or persistent pain is pain that continues long after it should not, and I prefer the following well accepted criteria:

i. The insured person suffers severe and constant pain – more than simple ongoing or recurrent, intermittent pain.

ii. The insured person's pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The pain is not a clinically associated sequela to minor injuries.

iv. The insured person's pain causes functional impairment and disability. It significantly disrupts or disables pre-accident activities of daily living.⁶

18In support of his position, P.T. relies upon Dr. David Brooks Chronic Pain Report dated November 21, 2018. In that report, Dr. Brooks, family physician, diagnosed P.T. with Chronic Pain Syndrome secondary to unresolved residual pain as a direct result of the accident. Dr. Brooks further explains that the ongoing impairments are "biomechanical (facet joint-cervical spine and ligament-left shoulder and knee) and have become chronic. An ultrasound of his left shoulder well after the accident documents subacromial/subdeltoid bursitis along with supraspinatus tendinopathy. There is also a different diagnosis of nerve impingement of the left brachial plexus."

19I am unable to give weight to Dr. Brooks' report for several reasons. First and foremost, he provides no definition of chronic pain syndrome or what criteria was applied to conclude that P.T. met the diagnosis. Dr. Brooks refers to several studies/research articles and at length discusses the different types of pain but provides little discussion how it applies to the applicant's circumstances. More to the point, I would like to know if P.T.'s pain was constant and how it functionally impaired the applicant and disrupted his pre-accident activities of daily living with reference to what activities have been disrupted, if any, and to what extent. Dr. Brooks simply notes a decreased endurance related to ANLs⁷ yet does not specify what activities and to what degree were apparently disrupted. He notes that P.T. is not able to return to his work as a courier without providing any analysis of the tasks that particular job involved (i.e. lifting, bending, driving etc.). However, it is undisputed that P.T. did return to work full time about 9 months after the assessment with Dr. Brooks in August 2019 which suggests the pain must have subsided and cannot be characterized as chronic.

20Chronic pain has to be severe, constant and persistent pain – more than simple ongoing or intermittent but all of the clinical notes and records ("CNR's') from P.T.'s family doctor and I.E. reports point to the pain being intermittent (on and off). The applicant reported to Dr. Koepfler during the psychological assessment on February 16, 2017 that he experienced intermittent pain in his left shoulder. Notably, the only pain behaviour noted by Dr. Koepfler was the rigid way in which P.T. held his left arm and his refusal to bend his left elbow. Dr. Koepfler explained that one would expect to see visible signs of that level of disuse which were not apparent during that examination. In cross examination, P.T. conceded that none of the family doctor CNR's reference his pain as being constant. When the applicant established contact with a new family doctor in April 2, 2019, Dr. C. Peralta described that P.T. as overall doing well with no concerns/complaints.

21Dr. Brooks refers to P.T.s complaints of restricted range of motion and tested him for active range of motion ("AROM"). The tests were conducted via direct observation and/or goniometer finding "restriction in abduction and external and internal rotation with pain in the rotator cuff region" and decreased strength grip. I am not convinced, however, that this injury is a result of the August 11, 2016 accident. The family doctor CNR's of Dr. B. Mikhail (which Dr. Brooks had) contain very few references to problems with range of motion and no references to problems with decreased grip strength. The examination on February 23, 2017, by Dr. Mikhail describes that P.T. has full range of motion. The note of May 10, 2017 Dr. Mikhail notes that P.T. " Denies decreased grip strength."

22I was also puzzled with Dr. Brooks' reference to injections administered to P.T. Dr. Brooks recognized that P.T. was given recent injections in his left shoulder which gave him temporary relief. Dr. Brooks does not, however, note what type of medicine was injected, when these injections were provided, how may times and by whom. Certainly, this information and any such records from a pain clinic or physician who administered these injections would have been critical to any diagnosis of chronic pain syndrome. Dr. Brooks also notes that P.T. was not taking any medication and that he had stopped rehabilitation (which apparently helped him) 8 months ago which suggests that the pain may not have been as chronic or as persistent.

23Dr. Brooks' report also lacks important details, such as the length of the assessment and what credentials he has to diagnose chronic pain syndrome. There is just a general reference to Dr. Brooks being a qualified family physician and that a curriculum vitae is available upon request. There is no specific training or education outlined in the Evaluators Qualifications portion of his report to substantiate his expertise in this area especially if he is an expert in chronic pain.

24I find that P.T. has failed to prove on a balance of probabilities that he suffers from chronic pain syndrome as I cannot give weight to Dr. Brooks' diagnosis in his November 21, 2018 report. Additionally, P.T. has failed to refer me to any other evidence that supports a diagnosis of chronic pain syndrome and, therefore, he is not removed from the MIG on this basis.

Pre existing condition

25Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. A pre-existing condition will not automatically exclude a person's impairment from the MIG; it must be shown to prevent maximal recovery within the cap imposed by the MIG and must be documented by a health practitioner. In order to ensure that P.T.'s appeal is fully considered, I will address it too.

26The applicant did not argue at the hearing that he should be removed from the MIG on the basis of a pre-existing condition. More to the point, the applicant testified that before the accident he was healthy and never had the need for a family doctor. According to a September 8, 2016 Disability Certificate of physiotherapist, Efren Encarnacion of Gibson Wellness Centre, P.T. had no pre-existing conditions. No medical records were produced for periods prior to the accident aside from the OHIP summaries and some testimony from the applicant about a hand injury in January 2016. I also note that none of the IE assessors found any evidence of a pre-existing condition that would remove him from the MIG. As such, P.T. is also not removed from the MIG on the basis of a pre-existing condition.

Are the treatment plans reasonable and necessary?

27Having determined that P.T. can be properly treated within MIG, it is the Tribunal's understanding that the MIG funding has been exhausted.⁸ Accordingly, it is not necessary to conduct an analysis of whether the two treatment plans in dispute are reasonable and necessary.

Is P.T. entitled to an income replacement benefit?

28The insurer's obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.

29Initial entitlement to an IRB falls under s. 5(1) of the Schedule for employed and self-employment persons⁹: an IRB is payable if as a result of the accident 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. Sections 6 and 7 of the Schedule address entitlement for IRBs for the period 104 weeks post accident. After the 104-week mark, the test changes: P.T. must suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the accident.

P.T.'s initial entitlement to IRBs

30The respondent paid the applicant an IRB in the amount of $400.00 per week from August 19, 2016 to May 13, 2017 initially on the basis of an OCF-3 Disability Certificate completed by E. Encarnacion, physiotherapist, on September 8, 2016. Under the heading "Disability Tests and Information", Ms. Encarnacion checked off the box that P.T. could not return to work on modified duties and that that anticipated duration was "9-12 weeks." There were no new updated Disability Certificates to extend this period. As well, the applicant submitted OCF-2 Employment Confirmation Form dated August 15, 2016, signed by him that stated that he was "self-employed" as a courier before the accident and earned $33,513.00 gross income in previous 52 weeks before the accident. The employer name was listed as "P.T." and title was "owner/operator". The listed essential job tasks included: "load/unload, prepare inspect package, operate delivery vehicle."

31In 2017, for the purpose of adjusting the file, Aviva conducted a round of IEs to assess P.T.'s continuing entitlement to IRBs. A multidisciplinary assessment was conducted by Dr. Todd Walters, physician, on February 8, 2017 and Dr. Louise Koepfler, psychologist on February 16, 2017.

32In conducting the psychological assessment Dr. Koepfler conducted a series of validity tests.¹⁰ On the Modified Somatic Perception Questionnaire (MSPQ), a self reporting test to measure one's perception in pain, P.T.'s score of 17 fell outside the normative range indicating likelihood of magnification of physical complaints. On the Oswestry Functional Assessment Questionnaire Dr. Koepfler wrote "his endorsements are extreme, particularly his endorsements of being unable to sleep, which is physiologically impossible." As a result, Dr. Koepfler concluded that given P.T.'s mixed performance on validity testing she did not have valid or reliable data on which to base any DSM-IV diagnosis. With respect to the specific referral question whether P.T. suffered a substantial inability to perform the essential tasks of his pre-accident employment as a courier as result of the accident, Dr. Koepfler concluded that from a psychological perspective she was unable to determine if P.T. suffers from a substantial inability to perform the essential tasks of his pre accident employment.

33However, according to the report of Dr. Walters dated February 28, 2017, the applicant did suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a courier mainly as a result of his restricted left arm use (located in the distal deltoid insertion). There was no estimate as to when he would be able to return to his pre-accident work and there was no specific diagnosis by Dr. Walters explaining that his post accident testing was unavailable for review and P.T. declined to flex his elbow and movement with his left arm. Dr. Walters does note in his report that that P.T. hit his left arm against the door and it was immediately sore. He had no left am sling during the assessment. Most importantly, Dr. Walters was unable to properly asses P.T.'s left arm and confirm a diagnosis at that time. Also important was that Dr. Walters recommended that P.T. return to his family doctor to have a bone scan or ultrasound of his shoulder to properly direct intervention.

34Subsequently, on March 24, 2017, while continuing to pay for the IRB, Aviva wrote to P.T. requesting a status of any investigations relating to P.T.'s left shoulder impairment and copies of any reports. At some point after that additional documentation from P.T.'s family doctor and an ultra sound of the left shoulder dated February 27, 2017 were provided to Dr. Walters to complete a more throughout assessment. In turn, after reviewing this new information, Dr. Walters prepared an Addendum Report dated May 3, 2017, stating that "a review of the reports of the examinations done by the family physician and the US [ultrasound] results cause one to question whether his MVC was responsible for his limited examination as the time of my examination." A further letter of clarification from Dr. Walters dated May 5, 2017 explained that while P.T. does suffer a substantial inability to perform the essential tasks of his employment it is not as a result of the motor vehicle accident. It was on that basis that on May 9, 2017 and a further letter of May 10, 2017, the respondent confirmed to the applicant that P.T. was no longer entitled to receive IRB effective May 13, 2017 (stoppage date).

35P.T. submits that he meets both the pre and post 104-week test based on the OCF-3, a report from Dr. Brooks, medical imaging and some other records. Aviva relies on the I.E assessors and submits that if there was a disability of the shoulder, it was not a result of the accident and was time limited. I agree with Aviva.

P.T.'s continued entitlement to IRBs

36There is no dispute that the applicant was employed at the time of the accident. He had been working for [company A] and [company B] as a team courier for several years before the accident. The respondent raises causation as the main issue in this hearing and submits that if the applicant is unable to work it is not because of any impairment resulting from injuries he sustained in the accident.

37The applicable legal test for determining causation in the accident benefits scheme requires that the applicant show that, but for the motor vehicle accident, he would not suffer an impairment in relation to which he claims income replacement benefits.¹¹ According to Sabadash, the accident does not need to be "the cause" of the injuries, but at least "a necessary cause." Ultimately, however, causation is a question for the Tribunal, considering the totality of the evidence. I find the medical and other evidence provided falls well short of P.T.'s burden to prove entitlement to an IRB as a result of the accident.

38The applicant testified that, immediately after the accident he could not return to work because of pain in his left shoulder, left knee and back. With respect to his job at the time of the accident, P.T. testified that he worked as a courier for 2 courier companies [company A] and [company B]. He worked 8-10 hours a day and was required to lift heavy boxes. Unfortunately, the self-employment records or any bank statements to confirm any income have not been provided. At the hearing, P.T. testified that all but the pain to his left shoulder have resolved. He also testified that he returned to work full time in August 2019 at [company B] but in a different position as a transport dispatcher and did not have to lift heavy objects. On cross examination, he conceded that he made deliveries and was working after the accident and prior to when he returned to full time work in August 2019. No declaration of post accident income was ever provided.

39The applicant relies on the Chronic Pain Report of Dr. David Brooks dated November 21, 2018 where the physician concludes that "the impairments are ongoing due to the motor vehicle accident in question. He continues to be affected by his impairments at this time and suffers from a complete inability to carry on a normal life….and he cannot return to his courier employment at this time or any employment at this time until his neck, knee and shoulder impairments dissipate."

40For the reasons stated above, I do not put a lot of weight on Dr. Brooks' report. With respect to Dr. Brooks' conclusion regarding the IRB issue, Dr. Brooks did not specifically address and analyse whether P.T. was able to perform the essential tasks of his employment. I was not provided with details regarding the essential tasks of the applicant's employment, which of these tasks he could not perform and whether those tasks were essential. It could be that the P.T. could not perform any of his essential pre-accident employment tasks. It could be that the applicant could perform some but not all of his essential pre-accident employment tasks. Dr. Brooks did not make any determination one way or the other aside from making very general remarks that P.T. could not return to his job as a courier. Dr. Brooks was also not aware of P.T.'s emergency room visit in January 2016 which could have impacted his opinion as far as causation. There was also evidence that after the accident he hurt his elbow while reaching for a tv remote.

41Ultimately, on this point I also prefer and give more weight to the reports of Dr. Walters. Those reports conclude that while P.T. does suffer a substantial inability to perform the essential tasks of his employment, it is not as a result of the motor vehicle accident. The applicant did not provide any medical report to refute Dr. Walters finding. This finding was corroborated by other evidence including the applicant's own admission that he was making deliveries after the accident and prior to him returning to work in August 2019.

P.T.'s non-compliance with production requests – adverse inference

42As stated, P.T.'s has the onus to prove his entitlement to the IRB. Aviva alleges that P.T. has failed to produce certain documentation relevant to the issues in dispute. Aviva also submits that the applicant is non-compliant with s. 33 of the Schedule¹² and asks that I draw an adverse inference as a result.

43At the time of this hearing, P.T. had not provided the following documentation:

a. his employment file,

b. self employment records,¹³

c. complete income tax returns for the tax years 2013, 2014, 2018, 2019 and assessments,

d. family doctor records,

e. emergency room records/diagnostic imaging from 2016,

f. prescription summaries, and

g. treating centre records from Gibson Wellness.

44The OHIP summaries and 2018 Notice of Assessment were only produced a mere two days before the start of the hearing. The only employment documentation provided is letter dated August 2, 2019 offering full time employment at [company B] effective August 12, 2019 paying $41,600 annually. There was also evidence from P.T. during his testimony that he received some form of social assistance after the accident, but again these records were not provided, and it appeared that Aviva had no knowledge of this until the hearing.

45The respondent wrote to the applicant several times to ask if he had returned to work and further productions were requested pursuant to s.33 of the Schedule.¹⁴ This is unfortunate as it is expected that parties cooperate and exchange amongst themselves any relevant records. No adequate explanation was provided by the applicant or applicant's counsel. As a result, I have drawn an adverse inference from the failure to produce these documents.

46I consider this documentation necessary to determine both entitlement to and quantum of an IRB. Most of this documentation is standard and regularly produced in an IRB claim to allow an insurer to adequately assess and adjust the file. How else can the amount of the IRB be calculated? How can the insurer know if there is any set off because of a claimant receiving social assistance or payment for part time work? Such documentation is especially imperative in this case when the applicant claims he was working as a "broker" and appears to have been self-employed with business income. Calculating the weekly IRB may be difficult in the best of cases.

47I also concur with Aviva that these documents are essential pieces of evidence to determine causation. Put another way: the documents are necessary to determine whether P.T. worked anytime between May 13, 2017 to August 11, 2019. It is simply not enough to make a blanket statement in written submissions (para. 20) that P.T. "earned no income since the date of the accident until his return to work in August 2019." This was contrary to the 2018 Notice of Assessment which showed that P.T. did in fact earn $5,909.00 of income (line 150). Corroborating evidence is required especially when P.T. made an admission at the hearing that he did make some deliveries during that time and received some form of social assistance. In the absence of corroborating evidence (i.e. paystubs, bank statements or proof of assistance) proving that P.T. in fact worked or missed work as a result of the accident, it is difficult to determine whether he is entitled to an IRB

48The lack of evidence in support of his claim for IRBs and the applicant's testimony, which I found at times unreliable in some areas, essentially failed to satisfy the evidentiary burden of proof. He also failed to prove that, but for the motor vehicle accident, he would not have suffered the impairment in relation to which he claims an IRB. This significantly compromised the applicant's case.

49As a result, I find that P.T. has not proven on a balance of probabilities that he missed work as a result of the accident. Therefore, I do not embark on a detailed analysis of whether he is unable to perform the essential tasks of his employment as a result of the accident. Accordingly, I find he is not entitled to an IRB for the period in dispute.

Interest

50Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.

CONCLUSION/ORDER

51For these reasons, P.T. has not proven his entitlement to any of the benefits he claims.

52There are no overdue benefits payments and accordingly no interest payable.

Footnotes

1. 1Applicant's representative confirmed at the teleconference portion of the hearing that no written reply submissions were filed.
2. 2O. Reg. 34/10.
3. 3The end date for the period in dispute of the IRB was changed at the hearing by the applicant from "to date and ongoing" to "August 11, 2019" as the applicant conceded that he had returned to work. The respondent did not oppose these changes.
4. 4Scarlett v. Belair, 2015 ONSC 3635 para.24.
5. 5A.H. vs. TD General Insurance Company, 2020 CanLII 12773 (ON LAT) para. 17.
6. 6See YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) para. 24-29.
7. 7This is not defined anywhere in the report.
8. 8At the in-person portion of the hearing, the respondent confirmed that the applicant has exhausted the MIG limit.
9. 9According to the OCF 1, the applicant was self-employed when the accident occurred.
10. 10See page 12 of the report for list of six tests.
11. 11See Sabadash v. State Farm et al. 2019 ONSC 1121 ("Sabadash")
12. 12Section 33, in part, states that an applicant shall, within 10 business days after receiving a request from the Insurer, provide the Insurer with any information reasonably required to assist the Insurer in determining entitlement to a benefit.
13. 13According to the OCF 1, the applicant was self-employed when the accident occurred.
14. 14See letters dated January 10, 2017, January 17, 2017 and March 24, 2017.