Citation: S. A. vs. Aviva Insurance Canada, 2020 ONLAT 18-004334/AABS
Released: September 8, 2020
Tribunal File Number: 18-004334/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:
S.A.
Applicant
and
Aviva Insurance Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
Victoria Tchilikova, Counsel
For the Respondent:
Kathleen Mertes, Counsel
Held by Written Hearing:
April 29, 2019
OVERVIEW
1The applicant seeks entitlement to an income replacement benefit (“IRB”), the cost of an income replacement benefit calculation report and an award claim.
2The applicant was involved in a motor vehicle accident on March 1, 2016. He applied for income replacement benefits and sought payment for the cost of an income replacement benefit calculation report pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 20101 (“Schedule”).
3The respondent denied the applicant’s request for income replacement benefits because it claims that the medical documentation does not support entitlement to the benefit during the time period in dispute. The respondent also takes the position that the applicant is not entitled to an income replacement benefit because he did not submit a “completed” OCF-3 Disability Certificate supporting entitlement to the benefit until the day before he returned to work. Finally, the respondent submits that it is not possible to determine the actual quantum of the income replacement benefit in dispute given that the applicant has not provided sufficient documentation to confirm any deductible post-MVA income.
4The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The applicant is claiming an award as part of its application as it takes the position that the respondent unreasonably withheld payment of the income replacement benefit and the cost of the income replacement benefit calculation report. The parties could not resolve the issues in dispute, so the matter proceeded to a written hearing.
ISSUES IN DISPUTE
5The following issues are in dispute:
I. Is the applicant entitled to an income replacement benefit in the amount of $195.81 per week from March 9, 2016 to April 30, 2016?
II. Is the applicant entitled to the cost of an income replacement benefit calculation report in the amount of $2825.00 recommended in a treatment plan submitted on May 17, 2017 and denied by the respondent on July 19, 2017?
III. Is the Applicant entitled to interest on the overdue payment of benefits?
IV. Is the Applicant entitled to an award under Ontario Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?
RESULT
6Based on the evidence before me I find that the applicant is not entitled to an IRB income replacement benefits during the time period in dispute nor an award claim. The applicant is entitled to the income replacement benefit calculation report pursuant to the limits set out in the Schedule with interest payable.
INCOME REPLACEMENT BENEFIT
7Entitlement to an income replacement benefit is set out in sections 5 and 6 of the Schedule. Section 5(1)(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his/her employment or self-employment.
8The Applicant submits that from March 9, 2016 to April 30, 2016, he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a floor installer due to the physical and psychological impairments he sustained as a result of the accident. The applicant bears the onus of establishing on a balance of probabilities, that he is entitled to the income replacement benefit as claimed.
Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?
9The applicant was employed as a floor installer at [The Flooring Inc.] prior to the accident. He was working approximately 10 hours per day and his duties included paperwork, removal and installation of flooring, painting and other general labour duties. The Applicant's job required prolonged standing, repetitive bending forward, crouching, sustaining a stooped position, heavy lifting and carrying. The applicant was also employed as a server at [The restaurant] but no information relating to the essential tasks of that employment was provided.
10The applicant started to experience pain in neck, left shoulder, and right ankle shortly after the accident. The applicant first attended Prime Health Care on March 2, 2016 in order to deal with his accident related injuries. The applicant saw Dr. Hefford, chiropractor, who noted that he was experiencing limitations with “activities involving bending, lifting, carrying and overhead activity. Prolonged sitting, standing and walking are reported to be provocative."
11On a follow up visit on March 7, 2016, Dr. Hefford completed an OCF-3 Disability Certificate which noted the applicant’s accident-related injuries and sequelae to include left arm/shoulder injury, thoracic and lumbar spine strain/sprain, bilateral knee strain/sprain, right ankle strain/sprain, as well as anxiety and sleep disorders.
12Dr. Hefford also indicated that the applicant was substantially unable to perform the essential tasks of his employment as a result of his accident-related injuries. He further noted that the applicant was able to return to work on modified duties and specifically that “the applicant reports returning to work despite medical advice to refrain from work”. Based on the evidence before me, it appears that the only medical advice provided to the applicant at this time with respect to his return to work would have been that of Dr. Hefford himself. Dr. Hefford noted that the limitations were anticipated to persist for more than 12 weeks.
13On March 9, 2016, the applicant attended with his family physician, Dr. Attia. The clinical notes and records from that day indicate that the applicant complained of left shoulder pain which resulted in a slight decreased range in motion and that he was advised to exercise daily, take over-the-counter Tylenol or Robax medication and to follow up as needed. No diagnostic tests were ordered and there is no mention of the applicant being off work or being unable to resume his pre-accident employment.
14On March 14, 2016, the applicant submitted an Application for Accident Benefits (“OCF-1”), dated March 9, 2016. The OCF-1 indicated that the Applicant was employed and working at the time of the accident as an installer at [The Flooring Inc.] and as a server at [The restaurant] . Under Part 8 of the OCF-1, the applicant indicated that his injuries prevented him from working, that his last day of work was the date of the motor vehicle accident and that he had not returned to work at any time since the accident.
15On April 11, 2016, the Applicant submitted an Employer’s Confirmation Form (“OCF-2) relating only to his position as a floor installer. The OCF-2 noted that the applicant was actually self-employed in this position prior to the accident (and not an employee as stated on the OCF-1), and that he designated the time period of “March 1, 2015 to April 7, 2016” to be used to calculate his pre-MVA income. Part 6 of the OCF-2 notes that the applicant’s last day of work to be the date of the accident and that the date of return to work being "N/A".
16The applicant never submitted an OCF-2 to the respondent relating to his pre-accident employment as a server at [The restaurant] nor any other documentation relating to his pre and post accident employment at [The restaurant].
17On April 11, 2016, Dr. Dessouki, physiatrist, conducted an insurer’s physical examination of the applicant. Dr. Dessouki noted tenderness at cervical spine, knee, and right ankle. The applicant advised Dr. Dessouki that he has not returned to work since the subject accident.
18Dr. Hefford re-evaluated the applicant on April 25, 2016. Dr. Hefford noted that the applicant has "demonstrated an increase in pain-free ROM, less pain and increased functional abilities with respect to ADL's. There is a substantial decrease in the frequency of painful episodes. All complaints 6/10 intermittent daily- left shoulder, left knee, right ankle and low back."
19On April 29, 2016, one day prior to the applicants return to work, the respondent received a second copy of the initial OCF-3 Disability Certificate, dated March 7, 2016. This second copy of the OCF-3 was altered to remove the information that the applicant had returned to work post-accident and modified duties were no longer listed as being available. All other information listed on the initial OCF-3 remained the same. No explanation has been provided as to why the initial OCF-3 was altered in this way.
20The applicant bears the onus of establishing that he is entitlement to income replacement benefits for the period in dispute. After a review of the evidence before me, I am not satisfied that the applicant is entitled to the income replacement benefit during the time period in dispute.
21The applicant only saw his family physician, Dr. Attia, once for accident related issues during the time period in dispute. Dr. Attia did not make any recommendation that the applicant remain off work, nor was any record made of any discussion regarding the applicant being unable to return to work.
22The initial OCF-3 completed by Dr. Hefford also indicated that the applicant had advised that he had returned to his pre-accident employment and that modified duties were available. This was information that was subsequently altered without any explanation and because of this, I have given the OCF-3 little weight.
23The remaining evidence from Dr. Hefford, Prime Health Care and Dr. Attia suggest that the applicant was dealing with primarily soft tissue injuries that were successfully being managed through various treatment modalities. There is very limited evidence before me which addresses the impact these injuries had on the applicant’s ability to perform the essential tasks of his pre-accident employment.
24Additionally, no evidence or submissions were presented with respect to the applicant psychological impairments outside of the notation in the OCF-3 which indicated that the applicant was suffering from anxiety as a result of the accident. Given this, I am left unsure as to whether the applicant’s psychological impairments had any effect on his ability to complete the essential tasks of his pre-accident employment.
25For these reasons, the applicant has not satisfied me that he is entitled to an income replacement benefit during the time period in dispute. As this is my finding, I will not address the remaining issues raised by the respondent.
The Income Replacement Benefit Calculation Report
26Section 7(4) of the Schedule states that an insurer shall pay for an expense incurred by an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment. Section 7(4) further states that in order for payment to be deemed owing, the applicant must be applying for an IRB based on the employment or self-employment considered in the report, the report must be completed by a member of a designated body, and the expense must be reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit. Section 7(5) of the Schedule limits the maximum cost for such a report to no more than $2,500.00.
27The dispute in this case relates to whether the report was reasonable and necessary. The applicant submits that the respondent's failure to calculate or acknowledge the applicant's application for income replacement benefits resulted in him needing to retain an accounting firm to prepare a calculation report. The report was completed on May 12, 2017, calculating the applicant's weekly income replacement benefit at $195.81 per week from March 9, 2016 to April 30,
28The applicant claims that the report was reasonable and necessary because he was off work for a period of time longer than 8 weeks wherein he sustained an income loss and that his income replacement benefit calculation was not a straightforward one as he was self-employed.
29The respondent submits that because it determined that the applicant was not entitled to income replacement benefits for the time period in dispute, it was not reasonable or necessary to incur the cost of a calculation report. I disagree with the submission and find the report to be reasonable and necessary.
30The applicant was self employed as a floor installer which could complicate the calculation of his income replacements benefit. I find that supporting his claim to income replacement benefits with a report prepared by a member of a designated body within the meaning of the Public Accounting Act is reasonable and necessary under the circumstances. The benefit and interest are payable as per the Schedule.
AWARD
31The Applicant submits that he is entitled to award under Ontario Regulation 664 because the adjuster log notes clearly establish that that applicant's file was greatly mismanaged, causing him further stress.
32Section 10 of Reg. 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. The test for a special award requires an examination as to whether the insurer gave reasonable consideration to all the information available to it in assessing a claim. An insurer will not face a special award just because an arbitrator finds that the insurer got it wrong. In this case, I find that the insurer gave reasonable consideration to all the information available to it when it considered the proposed accounting report. As a result, an award is not warranted in the circumstances of this case.
CONCLUSION
33For the reasons outlined above, I find that:
I. The applicant is not entitled to an income replacement benefit in the amount of $195.81 per week from March 9, 2016 to April 30, 2016;
II. The applicant is entitled to the cost of an income replacement benefit calculation report subject to the limits outlined in the Schedule. Interest is also payable pursuant to the Schedule; and
III. The Applicant is not entitled to an award under Ontario Regulation 664.
Released: September 8, 2020
Paul Gosio
Adjudicator