Licence Appeal Tribunal Decision
Released: February 1, 2021
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:
Kajanan Jeyakumar
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Davide V. Cortinovis, Counsel
For the Respondent:
Andrea L. Bandow, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on November 14, 2017, and sought various benefits, including an income replacement benefit (“IRB”), from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Aviva denied the IRB claim on the basis of its determination that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. The applicant disagreed and applied to the Tribunal for resolution of the dispute. At the case conference, the parties settled the majority of the claims, leaving only the IRB and interest claims in dispute.
ISSUES IN DISPUTE
2The following issues remain in dispute:
a. Is the applicant entitled to an IRB in the amount of $400.00 per week from December 14, 2017 to August 18, 2018?
b. Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant has not demonstrated his entitlement to an IRB in the amount of $400.00 per week for the period in dispute. As no benefits are owing, it follows that no interest is payable under s. 51.
ANALYSIS
Section 5(1) - IRB
4In order to receive payment for an IRB under s. 5(1)1(i) of the Schedule, the applicant must demonstrate that as a result of and within 104 weeks of the accident, his impairments resulted in a substantial inability to perform the essential tasks of his pre-accident employment. Under s. 6(1), an IRB is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his employment. The parties agree that the applicant bears the onus of proving entitlement to the IRB for the specific period in dispute, on a balance of probabilities.
The parties’ positions
5The applicant’s position is that he is entitled to an IRB for the period in dispute, as he reported his inability to perform the essential tasks of his pre-accident employment to every treating and assessing medical practitioner that he saw post-accident. To this end, he submits that in order to perform the essential tasks of his employment as an AutoCAD technician, he must be psychologically and physically capable, which the medical evidence and his self-reporting confirm he was not. Further, post-accident, he experienced severe headaches, stress and psychological issues and was diagnosed with chronic headaches, Adjustment Disorder with Mixed Anxiety and depression. He submits that multiple medical professionals concluded he was substantially unable to perform the essential tasks of his employment, that he never received reprimands or warnings from his employer and that his termination was related to his inability to work. The applicant directs the Tribunal to the reports of Dr. Mrahar, psychologist, and Dr. Wilderman, chronic pain specialist, and various clinical notes and records.
6In response, Aviva submits that the applicant is not entitled to an IRB because: he returned to work the day after the accident without modifications; he made no psychological or cognitive complaints to his family physician post-accident; he was dismissed from his job due to being “not the right fit” and not as a result of his accident-related impairments; his application for employment insurance dated December 29, 2017 indicates he was ready and able to work; despite his psychological diagnosis, the medical professionals did not indicate he meets the IRB test; he obtained similar employment following the period in dispute; he relies on an OCF-3 completed after the period in dispute. Aviva relies on the s. 44 reports of Dr. Day, psychologist, Dr. Auguste, orthopaedic surgeon, Dr. Schwartz, psychologist, and Mr. Campos, occupational therapist, to support its determination.
The applicant is not entitled to an IRB for the period in dispute
7On the evidence before the Tribunal, I find the applicant has not demonstrated that he met the IRB test for the period in dispute, as there is limited evidence to suggest that he suffered a substantial inability to perform the essential tasks of his employment during this specific period.
8There is no dispute that at the time of the accident, the applicant was employed as an AutoCAD Technician at Amico and had been for some time. The IRB analysis requires engagement with the “essential” tasks of the applicant’s employment to determine whether he was substantially unable to perform them. According to the applicant, the essential tasks of his pre-accident employment as an AutoCAD technician include: prolonged periods of sitting in front of a computer; supervising design work, which included visiting the production floor; concentration and attention to detail in the design; an ability to physically and cognitively handle increased workload before the holiday season; and the ability to physically handle extended overtime shift work. These tasks were confirmed, generally, via letter and job description from Amico.
9However, I find the applicant has provided insufficient objective medical evidence to support his claim that he was terminated from his employment as a result of his accident-related pain and psychological and/or cognitive impairments or that his accident-related impairments were preventing him from substantially engaging in his essential pre-accident tasks. While there is no dispute that the applicant sustained his impairments as a result of the accident, I agree with Aviva that there is limited evidence these impairments resulted in the applicant meeting the IRB test for the period in dispute.
10Indeed, the parties agree that the applicant has received several diagnoses post-accident—from Dr. Mrahar (Adjustment Disorder with Anxiety and Severe Depressive Episode), from Dr. Day (Major Depressive Disorder, Single Depressive Episode with moderate severity) and from Dr. Schwartz (Adjustment Disorder with Mixed Anxiety and Depressed Mood)—that all generally agree on his psychological status. Yet, despite these diagnoses, including the one made by the applicant’s own assessor, Dr. Mrahar, none of the assessors actually state that this impairment would prevent the applicant from engaging substantially in the essential tasks of his pre-accident employment. Despite the agreement in the applicant’s diagnosis, none of the assessors recommended that he was unable to work, that he should refrain from working or that he required modified duties.
11Instead, the applicant’s position that his psychological and/or cognitive impairments prevented him from working is based on his own belief that these impairments prevented him from working and not on an objective medical opinion. In submissions, he states that his “psychological state at the time, and symptoms suggested the presence of cognitive interference and difficulties with some of his cognitive functions such as memory, concentration, attention to detail, and short-term memory, all of which are essential to any AutoCAD technician” and that “he believes his stress and psychological impairments were debilitating and affected his concentration, focus and productivity.” However, with respect, I was not directed to a medical opinion to support the applicant’s suggestions and beliefs.
12It is not enough for the applicant to simply believe that he could not continue to work in order to receive an IRB. There must be more evidence of a substantial inability to perform the essential tasks than the applicant’s self-reporting on alleged psychological or cognitive interference, because self-reporting a substantial inability obviously benefits the applicant. While there is no actual requirement for what that type of evidence should be, at minimum, I find it should come in the form of an objective medical opinion (or imaging or an occupational therapy report, etc.) that would support the applicant’s subjective reporting that he cannot perform these work tasks as a result of the accident. None of the psychological assessors provided this opinion and the notes from visits to Dr. Chacko, family physician, are also silent on psychological and cognitive issues.
13Moreover, I find the medical evidence that speaks to the applicant’s physical injuries does not support his claim for an IRB. For example, the orthopaedic report by Dr. Auguste diagnosed the applicant with a cervical strain/sprain, lumbar strain/sprain and right foot strain/sprain due to the subject accident, finding that the applicant was not unable to work and did not suffer a substantial inability to perform the essential tasks of his employment. The notes of Dr. Chacko post-accident do not indicate that the applicant should refrain from working or that he meets the IRB test, only indicating pain and headache for which Advil and physiotherapy were recommended. These minor physical injuries are largely identical to those in the OCF-3 disability certificate that the applicant relies on. While the OCF-3 does indicate a substantial inability to perform his essential tasks, I find that it is ultimately unhelpful to the applicant because it is dated September 5, 2018, or 10 months post-accident when the applicant had already returned to work, which means that it does not speak to the actual IRB period in dispute. Problematically, there is no OCF-3 contemporaneous to the IRB period in dispute that indicates that the applicant was substantially unable to perform his essential work tasks as a result of either of his psychological or physical impairments.
14Meanwhile, the applicant relies on the chronic pain report of Dr. Wilderman, who diagnosed him with chronic pain disorder, chronic WAD II, lower back pain, lumbago, bilateral sacroiliac joint dysfunction, post-traumatic osteoarthritis on the right ankle, post-traumatic chronic headaches, depression and moderate PTSD and found that the applicant suffered a substantial inability to perform his essential work tasks. However, I place limited weight on this report for three reasons that are largely intertwined.
15First, the report is dated May 30, 2019, which is 1.5 years post-accident and well-after the IRB period in dispute here. It is difficult to reconcile Dr. Wilderman’s opinion that the applicant met the IRB test in December 2017 and through August 2018 as a result of impairments sustained in November 2017 when his assessment did not take place until May 2019. Second, the report indicates that no other documents were reviewed during the assessment because “No documents were available to review at this time.” I find this omission concerning considering the volume of medical opinions and records that had already been completed by the time the applicant was assessed by Dr. Wilderman. In my view, this suggests that Dr. Wilderman relied solely on the applicant’s self-reporting and a few tests that he conducted in May 2019, which only compounds the timing issue above. Third, while I am alive to Aviva’s remarks on Dr. Wilderman’s professional discipline, I make no finding on same. However, I do agree with Aviva that Dr. Wilderman’s opinion that the applicant met the IRB test in May 2019 is undermined by the fact that the applicant had already returned to working in a position similar to the one he was working at Amico at the time of the assessment. Had Dr. Wilderman been provided with the medical documentation that is before the Tribunal, I suspect his opinion may have changed. In the face of the other medical opinions, none of which determined that the applicant met the IRB test and all of which were conducted closer in time to the period in dispute, I assign Dr. Wilderman’s opinion limited weight.
16On the medical evidence, I find the applicant has provided little to objectively demonstrate that he could not substantially perform the essential tasks of his pre-accident employment between December 14, 2017 and August 18, 2018. While the applicant asserts that he left Amico due to his inability to perform his essential tasks as a result of the accident, there is no evidence that the applicant was terminated by Amico due to his performance or his inability to perform as a result of the accident. Rather, I agree with Aviva that the evidence suggests that his termination was on the basis of not being the right fit, which is supported by his own self-reporting to various assessors and his family physician that he found his job difficult and stressful, and especially so after he was moved to a different team. Further, his application for employment insurance filed on December 29, 2017, at the beginning of the period in dispute, indicates he was ready and able to work. I find this evidence, combined with the lack of an objective, contemporaneous medical opinion stating that the applicant was substantially unable to perform the essential tasks of his pre-accident employment during the period in dispute, difficult for the applicant to overcome in meeting his burden.
17Accordingly, I find it is not enough for the applicant to simply say that he cannot do an essential task in order to receive an IRB after being terminated, but rather, the applicant must provide objective medical evidence of a substantial inability to perform his essential tasks. For the reasons above, I find the applicant has not met his burden and is therefore not entitled to payment of an IRB in the amount of $400.00 for the period in dispute. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
18The applicant is not entitled to payment for an IRB in the amount of $400.00 per week as he has not demonstrated that he meets the test under s. 5(1) for the period in dispute. As no benefits are overdue, no interest is payable.
Released: February 1, 2021
Jesse A. Boyce Vice Chair
Footnotes
- O. Reg. 34/10, as amended.