Licence Appeal Tribunal
Released: March 8, 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:
Troy Maraj Applicant
and
Aviva General Insurance Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant: Darcie Sherman, Counsel
For the Respondent: Shivani Mehta, Counsel
HEARD: by way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on June 1, 2017 and sought benefits, including an income replacement benefit (“IRB”), from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied the IRB on the basis of two s. 44 Insurer’s Examination (“IE”) reports that found the applicant did not meet the test for entitlement under s. 5 of the Schedule. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
a. Is the applicant entitled to an IRB in the amount of $400.00 per week from June 8, 2017 to January 1, 2018?
b. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated entitlement to an IRB, interest or an award.
ANALYSIS
IRB entitlement
4Section 5(1)1.i of the Schedule sets out the test for entitlement to an IRB. In order to receive payment, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
5There is no dispute that at the time of the accident, the applicant was self-employed and had worked for at least 26 of the previous 52 weeks, as he owned and operated a company called Laser Pro Construction Services. His submissions indicate that this position entailed repair work and calibration that required him to sit in a forward flexion for prolonged periods while doing detailed, precision bench-work. The applicant submits that as a result of his accident-related injuries, he was unable to tolerate prolonged sitting. He asserts that he has residual pain in his neck and lower back that radiates towards the right shoulder, which was particularly bothersome when he sits for a prolonged period of time and especially so when he leans forward working on equipment.
6The applicant asserts that he was “unemployed from June 8, 2017 until about January 1, 2018” as a result of the impairments he sustained in the accident. To this end, he relies on an OCF-3, the treatment notes from Movement Physio Rehab Clinic and clinical notes from his family physician, Dr. Hack.
7The applicant provided Aviva with an OCF-3 on June 13, 2017, completed by Mr. Malik, physiotherapist, indicating that he was substantially unable to perform the essential tasks of his employment. The certificate noted that the applicant had difficulties with prolonged sitting, walking, standing, lifting, bending, kneeling, pushing, pulling and other activities of daily living. However, the applicant’s OCF-10 electing IRBs was not submitted to Aviva until October 2, 2017, after multiple requests for same.
8Aviva promptly scheduled s. 44 IEs to determine the applicant’s entitlement to the IRB. In his s. 44 report, Dr. Jarozynski, orthopaedic surgeon, conducted a physical examination, concluding that the applicant sustained soft-tissue injuries to the axial skeleton with ongoing subjective complaints of myofascial pain in the cervical and lumbar regions. Dr. Jarozynski was unable to identify any objective ongoing impairment within the musculoskeletal system attributable to the accident and concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his employment from a musculoskeletal perspective as a result of the accident.
9In a similar vein, in the s. 44 report of Dr. West, psychologist, the applicant denied experiencing any problems or difficulties of a psychological or emotional nature and noted no limitations or restrictions attributable to his mental health. Dr. West concluded that there was no clinically significant impairment from a mental health perspective and made no psychological diagnosis. He concluded that the applicant did not meet the test for IRBs from a psychological perspective and noted that the applicant was not purporting to either.
The applicant is not entitled to an IRB, interest or a s. 10 award
10I find the applicant’s evidence falls well short of meeting his burden under s. 5 and I prefer the s. 44 reports provided by Aviva. First, the records of his family physician, Dr. Hack, do not contain any post-accident visits that relate to the accident nor does Dr. Hack diagnose any impairments or offer an opinion on IRB entitlement. There is also an urgent care medical note from Dr. Ahmad dated June 2, 2017 that states that the applicant was unable to attend school/work from June 2, 2017 to June 2, 2017 due to medical illness but it does not state his injuries nor does it opine on any expected duration or IRB entitlement.
11Second, and rather fatal to the applicant’s claim, the clinical notes and records from Movement Physio confirm that the applicant returned to work one-week post-accident and do not contain any opinion on whether the applicant meets the IRB test. Indeed, as Aviva points out, in the treatment note of his August 1, 2017 visit, it is noted: “the patient reported feeling stiff, especially end of day, after work”. In the October 30, 2018 reassessment entry, it notes “patient has returned to work, construction repair, self-employed work but has been working less. Only missed 1 week after the accident.” The applicant did not dispute these entries.
12Third, I agree that limited weight should be afforded to the OCF-3 itself, as the physiotherapist comments on psychological factors, which are outside of the scope of his profession and, more problematically, the OCF-3 is dated June 13, 2017, and the balance of the records, including the applicant’s self-reporting to his providers, indicates that he returned to work and/or had continued to work at that time the OCF-3 was completed, which he has also not disputed.
13Fourth, I agree with Aviva that the applicant has not provided the evidence required to properly calculate his IRB quantum. Indeed, it appears that Aviva has asked him to provide statements of business expenses and losses as well as details of any post-accident income on two occasions, but he has only provided income tax returns for 2012-2018. As he is a self-employed applicant, Aviva is entitled to a deduction from the IRB quantum under s. 7. However, without his business expenses or post-accident earnings, there is insufficient financial information to properly calculate his IRB quantum. Notably, the applicant did not secure an accounting report of his own under s. 7(4) that would be assistive to him in calculating his IRB quantum.
14Finally, the applicant has not produced any compelling medical evidence to rebut the opinions of Aviva’s s. 44 assessors that determined he was not entitled to an IRB, as he sustained predominantly minor injuries in the accident. While I am alive to the fact that the applicant attended for physiotherapy for his pain, the medical evidence is clear that he did not suffer a substantial inability to perform the essential tasks of his pre-accident employment and his submissions do not specifically engage with how his impairments affected his essential tasks. Rather, the applicant self-reported a return to his employment during the very period for which he is claiming IRBs, if not within one week of the accident. While he may have lingering pain, there is simply no objective medical evidence to show that he meets the IRB test under s. 5 for the period June 8, 2017 to January 1, 2018.
15Accordingly, the applicant has not met his burden to demonstrate that he is entitled to $400 per week in IRB, as he did not suffer a substantial inability to perform the essential tasks of his pre-accident self-employment. As no benefits are overdue, it follows that no interest is payable under s. 51.
16For completion, the Case Conference Order indicates that the applicant also sought an award under s. 10 of O. Reg. 664. However, the applicant’s submissions did not address s. 10 nor did they provide the particulars necessary to attract an award. In any case, I find Aviva’s handling of the claim was entirely reasonable and the applicant was unsuccessful, so it follows that the Tribunal has no basis on which to order an award.
ORDER
17The applicant is not entitled to an IRB in the amount of $400 per week for the period June 8, 2017 to January 1, 2018. Interest and an award are not payable. The application is dismissed.
Date of Issue: March 8, 2021
Jesse A. Boyce Vice Chair
Footnotes
- O. Reg. 34/10, as amended.