Released Date: 09/23/2020
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:
C.C.
Applicant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
[C.C], Applicant
Davide Cortinovis, Counsel
For the Respondent:
Jena-Claude Rioux, Counsel
Maggie Morgan, Counsel
HEARD: In-Person:
February 6, 7, 10 and 11, 2020
OVERVIEW
1The applicant seeks entitlement to an income replacement benefit (“IRB”).
2The applicant was involved in a motor vehicle accident on November 13, 2017. He applied for and received an income replacement benefit pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 20101 (“Schedule”) up to November 15, 2018. The benefit was then terminated by the respondent based on the strength of its s.44 assessment which found that the applicant did not suffer from a complete inability to perform the essential tasks of his pre-accident employment.
3The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The parties could not resolve the issues in dispute, so the matter proceeded to an in-person hearing.
ISSUES IN DISPUTE
4The following issues are in dispute:
I. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 26, 2018 to date and ongoing?
II. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
5Based on the evidence before me I find that the applicant is not entitled to an IRB income replacement benefit during the time period in dispute. As a result, the applicant is not entitled to interest.
INCOME REPLACEMENT BENEFIT
6Entitlement 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(2) provides that the benefit is only payable after the first 104 weeks from the date of the accident if the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
7The applicant bears the onus of establishing on a balance of probabilities that he is entitled to the income replacement benefit as claimed.
Causation
8The applicant is entitled to an income replacement benefit only if the accident caused him to sustain an impairment that renders him substantially unable to perform the essential tasks of his pre-accident employment during the first 104 weeks. After the first 104 weeks of disability, the applicant would only be entitled to an income replacement benefit if the accident caused him to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.
9Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878 confirm that the default test for determining causation in accident benefit cases is the “but for” test. In this case, the parties agree that the applicant bears the onus of establishing, on a balance of probabilities, that he has met the “but for” test.
10The applicant submits that he has met the “but for test” and claims that his accident related chronic pain syndrome and resulting impairments entitle him to the income replacement benefit as claimed. The respondent submits that the applicant was already substantially unable to perform the essential tasks of his pre-accident employment prior to the accident and is therefore not entitled to the income replacement benefit as claimed. I agree with the respondent’s position.
Analysis
11Prior to the accident, the applicant was suffering from pain from osteoarthritis of both knees. He was working long hours as a cook and was experiencing increasing levels of knee pain. Dr. Bari, the applicant’s family doctor, then referred the applicant for knee replacement surgery. Dr. Bari’s clinical note and record from September 15, 2017 states:
The above named patient was seen on September 15, 2017 and on several visits over the past year. He had progression of severe bilateral knee Osteoarthritis and he is now awaiting knee replacement surgery. As a result of his medical condition, he is presently unable to return to any occupation.
12The applicant did not return to work as of September 15, 2017 and was scheduled to have knee replacement surgery in February 2018.
13The accident occurred on November 13, 2017. The applicant submits that his pre-existing lower back and knee joint pain was significantly aggravated by the accident leading to further degenerative changes which developed into chronic pain syndrome.
14The applicant did not have his knee replacement surgery in February 2018. He testified that he did not think he could handle the surgery due to his accident related pain. He also believed that it would fix only one of his many problems.
15The applicant submits that had the accident not occurred, he would likely have gone on to have knee replacement surgery and hopefully, after a relatively short post-operative recovery, have returned to work. He also submits that it is his accident related chronic pain, that renders him unable to return to any employment and that this satisfies the “but for” test.
16The respondent submits that Dr. Bari’s clinical note and record of September 15, 2017, establishes that the applicant was already substantially unable to perform the essential tasks of his pre-accident employment prior to the accident. The respondent’s position then is that it is the applicant’s unresolved knee issue which renders him unable to work and not the car accident.
17I am persuaded by the respondent’s position. The applicant’s pre-accident medical condition was such that he was unable to return to any occupation due to his severe bilateral knee Osteoarthritis. This issue was never resolved. The applicant’s position that he would likely have gone on to have knee replacement surgery and hopefully, after a relatively short post-operative recovery, have returned to work is speculative. The fact remains that the applicant continues to be unable to return to any employment due to his severe bilateral knee Osteoarthritis. Because of this, the applicant has not satisfied me on a balance of probabilities that his inability to return to any occupation is “but for” the accident.
18The causal connection between the applicant’s entitlement to an income replacement benefit has not been made and as such I find that the applicant is not entitled to the income replacement benefit as claimed.
CONCLUSION
19For the reasons outlined above, I find that:
I. The applicant is not entitled to an income replacement benefit in the amount $400.00 per week from December 26, 2018 to date and as a result, interest is not payable.
Released: September 23, 2020
Paul Gosio
Adjudicator