Citation: S. H. v. The Co-Operators Insurance Company, 2021 ONLAT 19-001276/AABS

Licence Appeal Tribunal File Number: 19-001276/AABS

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:

S. H.

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

S. H., Applicant

Lisa Bishop, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

Via Written Submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on February 5, 2018 and sought income replacement benefits (IRBs) of $800.00 per week from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September, 2010¹ (the "Schedule"). The respondent disagreed that the applicant is entitled to IRBs and disagreed with the weekly IRB quantum. The applicant applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues to be decided in this hearing are:

a. Is the applicant entitled to IRBs from February 13, 2018 to date and ongoing?

b. If the applicant is entitled to IRBs, what is the weekly quantum of the IRBs?

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

d. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3The applicant is not entitled to IRBs and thus it is not necessary to determine the quantum of the IRBs. As no benefits are overdue there is no entitlement to interest. The applicant is also not entitled to an award as no benefits were withheld or delayed.

ANLAYSIS

4The applicant is seeking entitlement to IRBs from February 13, 2018 until present. The case conference reports indicate that the period in dispute for entitlement to IRBs is January 25, 2019 to date and ongoing. The applicant and the respondent both agree that the issue in dispute is the entitlement to IRBs from February 13, 2018 to date and ongoing. The date of denial of the IRBs is January 15, 2019.

5Sections 5 and 6 of the Schedule sets out entitlement to IRBs. Section 5(1) states that the insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident, if the insured person was self-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 his or her self-employment. Section 6(1) provides that the IRB is payable for the period in which the insured suffers a substantial inability to perform the essential tasks of his or her self-employment and after 104 weeks IRBs are payable if the person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

6The onus is on the applicant to show that he suffers a substantial inability to perform the essential tasks of his self employment.

7The applicant submits that he is entitled to IRBs because the medical evidence shows that he is substantially unable to complete the essential tasks of his pre-accident self-employment. The applicant submits that his pre-accident employment was renovation and landscaping work, and which required 8 plus hours of heavy lifting, bending, carrying materials, reaching, standing and being on his feet for long periods of time. The applicant submits that as a result of his accident related impairments he is unable to do the essential tasks of his employment.

8For the reasons noted below, the medical information and evidence do not show that the applicant sustained impairments as a result of the accident and the evidence also does not show that those impairments prevent the applicant from returning to his pre-accident self employment.

9Three days following the accident, February 8, 2018, the applicant attended [Walk-In Clinic]. There the applicant reported painful right ankle and right wrist. The doctor states that these are "likely just contusions" and ordered an x-ray for the wrist but despite the applicant requesting an x-ray for his ankle the doctor advised the applicant that there is no need.

10The only other clinical notes that I am pointed to are two notes from Dr. Angilletta in November of 2018, January of 2019. These notes are largely illegible, and the applicant has not pointed to anything that speaks to the applicant's accident related impairments. The applicant purports that the notes speak about stress and depression however this is not the case. Even if I am incorrect in my deciphering of the handwritten notes there is no evidence that the applicant firstly reported any psychological injuries as a result of the accident, that Dr. Angilletta relates any emotional issues to the accident or that the applicant has any emotional or psychological impairments that prevent him from working at his pre-accident occupation.

11Lastly the applicant points to the clinical notes and records of Health Pro-Wellness where the applicant attended for what appears to be physiotherapy treatment. These clinical notes and records speak of right knee pain and some back pain.

12The records of Health Pro-Wellness are not persuasive in showing the applicant had any impairments following the accident. The records indicate that the applicant attended three times in February of 2018 (following the accident and the initial assessment at the clinic) and then four times in April of 2018. There are no further visits until the last day of July, and then visits in August, and September of 2018. In the months of August and September of 2018 the applicant attends only five times. The notes do not show any evidence of impairments or limitations and no reports of the need for ongoing therapy or an inability to perform the essential tasks of his self-employment.

13The only evidence before me submitted by the applicant that suggests that the applicant meets the test for the entitlement to IRBs is the OCF-3 completed by Dr. Salayeva, chiropractor, on February 6, 2018 (one day after the accident). Dr. Salayeva lists the applicant's injuries as sprain and strain injuries to the cervical, thoracic, and lumbar spine along with sprain and strain to the shoulder joint, wrist, ankle, and sacroiliac joint. She also notes headache and acute pain, with malaise and fatigue. As noted above the applicant visits the doctor at [Walk-In Clinic] two days later, February 8, 2018 and only reports right wrist and knee pain. There is no further evidence that shows that the injuries listed by Dr. Salayeva persisted. Further Dr. Salayeva states that the anticipated duration of the applicant's recovery and limitations with respect to his inability to work is 9-12 weeks.

14The respondent provided an Insurer's Examination (IE) of December 27, 2018 of Dr. Rabinovitch that concluded that the applicant has a normal examination but does have pain in the right shoulder, neck and lower back. The IE assessor concluded that the applicant did not suffer a substantial inability to return to his pre-accident self-employment. There are no reports that refute the conclusions of Dr. Rabinovitch.

15I find that the applicant has not provided objective medical evidence to show that on a balance of probabilities that he meets the test for the entitlement for IRBs. The applicant's injuries are contusions and soft tissue sprain/strain type injuries. There are no reports or medical evidence that speak to any immediate or ongoing impairments or any limitations. The only evidence tendered in support of the applicant's position is the OCF-3 that was done one day following the accident. The medical evidence within three days following the accident is that the applicant has contusions to his right wrist and ankle. There is no evidence supporting the position that within 104 weeks after the accident, the applicant suffers a substantial inability to perform the essential tasks of his self-employment.

16Further the applicant as well has not provided any evidence about the essential tasks of his employment. He made submissions as to what his self-employment tasks entailed but there is no evidence to show what he did day to day and what self-employment activities he is prevented from doing and how they are related to his accident.

17Since I have found that the applicant is not entitled to IRBs within the first 104 weeks, it is not necessary to do an analysis of whether the applicant is entitled to IRBs post 104 weeks.

18Also, it is not necessary to determine the weekly quantum of the IRBs as regardless of the amount no IRBs are payable.

Interest and Award

19The applicant is also not entitled to interest and/or an award under Reg. 664 as no benefits are were owing and/or withheld.

CONCLUSION

20For the reasons outlined above I find that the applicant is not entitled to IRBs, interest, or an award. The application is dismissed in its entirety.

Footnotes

1. 1O.Reg. 34/10, as amended