Released Date: 01/08/2021
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:
Kofi Hodge
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
VICE CHAIR:
Susan Mather
APPEARANCES:
For the Applicant:
Sarah M. Marshall, Counsel
For the Respondent:
Andrea Bandow, Counsel
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was involved in an automobile accident on June 17, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The applicant was denied income replacement benefits (IRBs) and certain medical benefits by the respondent (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The only issue remaining in dispute is whether the applicant is entitled to income replacement benefits (“IRBs”) from June 25, 2018 to March 2, 2019 2.
PRELIMINARY ISSUES
Font size and paragraph spacing
3The applicant asks that I not consider the entirety of Aviva’s submissions. He submits that the submissions’ font size and spacing do not conform to the specifications set out in the Tribunal Order dated February 6, 2020.3 He asks me to only consider the portion of the respondent’s submissions that would be captured in the first ten pages if the submissions were properly formatted. He makes no submission as to where the cut-off point should be.
4The Tribunal Order provides that the Tribunal may not consider submissions that do not comply with the page limit requirement. It also provides that the hearing adjudicator has the discretion to vary any of the hearing details set out in the order.
5I have reviewed the 10-page submissions of Aviva. Both the font size and line spacing appear to be smaller than ordered by the Tribunal. I am, however, able to read the submissions without any difficulty.4 The applicant does not submit that he suffered any prejudice other than he focused his submissions as well as he could within the page limit and more space would have been welcome. He does not submit that there were any submissions he did not make because of the page limit.
6I do not find that the respondent’s failure to use the specified font size and line spacing has resulted in any prejudice to the applicant. It is open to a party to request an increase in page limits if they do not feel they can properly make their case within the specified page limit.
7I do not condone or encourage parties to violate Tribunal orders by reducing font size and line spacing in order to stay within the page limits specified by the Tribunal. In this case, however, I will exercise my discretion and consider all of Aviva’s submissions being satisfied that there is no prejudice to the applicant.
Reply Submissions
8Aviva submits that the applicant is required to introduce all of the evidence he relies upon in the first instance and is precluded from introducing new evidence in reply that could reasonably have been included in the original submissions.
9In his reply submissions the applicant asks me to consider new evidence which was not included in the document book filed for the hearing. The new evidence consists of profit and loss statements for Upstart Renovations for the periods ending on December 31, 2017 and December 31, 2018. The applicant submits that these records were inadvertently excluded from his initial submissions. Because these records were sent to Aviva on January13, 2020 he asks me to consider them.
10The October 7, 2019 Tribunal Order limited the documentary evidence for the hearing to documents previously exchanged between the parties by January 14, 2020. The applicant’s submissions and documentary evidence were due February 19, 2020.
11The Tribunal Rules provide that if a party fails to comply with any Rules, directions or orders with respect to disclosure of documents the party may not rely on the document with consent of the Tribunal.5 I will allow the profit and loss statements into evidence because I am satisfied that there is no prejudice to Aviva in doing so. The applicant met the deadline for exchanging the documents and these documents are no surprise to Aviva.
12It is not necessary to allow Aviva the opportunity to make submissions on these documents because the applicant’s reply submissions do not refer to or rely on these documents to make his case for IRBs. The applicant included the profit and loss statements in his reply evidence in order to show he complied with the October 7, 2019 Tribunal Order requiring the applicant to produce business records.
ISSUES
13The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit and if so, the amount of the benefit from June 25, 2018 to March 2, 2019 denied by the respondent on the basis that the applicant does not suffer a substantial inability to perform the essential tasks of his employment or self-employment?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
14For the reasons provided below I am not satisfied on the balance of probabilities that the applicant suffered a substantial inability to perform the essential tasks of his self-employment as a contractor following the accident. The applicant’s claim for IRBs and interest on overdue payments is dismissed.
INCOMe REPLACEMENT BENEFITS
eLIGIBILITY
15The applicant submits that he was a self-employed general contractor at the time of the accident. To be eligible for IRBs the applicant must prove on the balance of probabilities that he sustained an impairment as a result of the accident and suffered, as a result of the accident and within 104 weeks after the accident a substantial inability to perform the essential tasks of his self-employment as a general contractor.6
16For the purposes of the Schedule the term “impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function.7
17The parties do not agree on the impairments the applicant sustained in the accident and whether or not the impairments the applicant suffered resulted in a substantial inability to perform the essential tasks of his self-employment as general contractor.
Impairments
18The applicant’s car was rear ended in an accident on the 401 Highway. His vehicle was pushed into the vehicle ahead of him. Two days after the accident he attended at a walk-in clinic reporting back pain, neck pain radiating to his right shoulder and low back pain radiating to his left leg.8
19The July 18, 2018 Disability Certificate (OCF3) describes his injuries to include WAD III with complaint of neck pain with neurological signs, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of unspecified part of lumbar spine, and pelvis, sprain and strain of shoulder joint, coracohumeral joint, sprain and strain of other specified sites of hips, psychological and behavioural factors, paresthesia of skin and chronic post-traumatic headache.9
20On September 4, 2018 the applicant visited his family physician. The family physician’s clinical notes and records (CNRs) indicate that his range of motion of his neck and right shoulder were mildly limited.10 The applicant had a mild tenderness at his neck/base, right shoulder/lower back, a mild tenderness in his lower abdomen and his straight leg raising test (SLRT) was uncomfortable.
21In response to his shoulder complaints, the applicant’s family doctor ordered an ultrasound of his right shoulder that was done on September 19, 2018. The ultrasound report stated that there was a focal anechoic defect at the articular surface at the insertional supraspinatus tendon “which may represent a partial thickness tear vs/ local tendonosis”.11
22The applicant’s submissions acknowledge that the applicant had issues with his right shoulder in March 2016. The March 8, 2016 CNR of his family physician confirms that he complained of a range of motion limitation in his right should and a clicking sound.12 The March 22, 2016 ultra sound of the right shoulder shows a 4 millimeter hypoechoic focus in his supraspinatus tendon suspicious for tendinopathy or small partial tear.13 The CNRs of the family physician confirm that he was still complaining of right shoulder pain in March 2017.14 The applicant submits that there is no record of the applicant complaining about his shoulder after March 2, 2017.
23The applicant attended at two in-person Insurance Examinations (IEs) and was assessed by an orthopaedic surgeon he was referred to by his legal counsel.
24The histories and diagnoses in the experts’ reports the parties rely on are similar and are set out in the table below:15
Dr. Boucher16
Family Physician
IE
September 04, 2018
Dr. Theodoropoulos17
Orthopaedic Surgeon
Lawyer’s referral
March 29, 2019
Dr. Sandhu18
Occupational Medicine Physician
IE
March 26, 2019
Reported no prior health issues
Diagnosis
WAD II, Lumbosacral myofascial strain, Right Shoulder sprain and strain.
Reported no prior health issues
Diagnosis
WAD II of the Cervical spine, Lumbar spine strain, possible left-side sciatica, Right Rotator cuff partial thickness tear. (Emphasis added)
Reported no prior health issues
Diagnosis
Myofascial sprains to his cervical spine, right shoulder, lumbar spine and right hip.
25The major difference between the diagnoses is Dr. Theodoropoulos’s diagnosis of a right rotator cuff partial thickness tear based on the September 2018 ultrasound.
26Dr. Boucher did not have copies of either ultra-sound report when he provided his opinion. He subsequently conducted a paper review which included the two ultrasound reports and revised his opinion.19 In his view, the applicant’s right shoulder complaint was a pre-existing degenerative condition dating back to his complaints to his family physician in 2016 and the March 2016 ultrasound. He revised his diagnosis to be uncomplicated soft tissue injuries to his cervical and lumbar spine.
27Aviva submits that while Dr. Theodoropoulos was provided with the earlier ultrasound report, his report does not recognize the earlier diagnosis of a partial thickness tear. Dr. Theodoropoulos’s report recognizes the applicant had some earlier remote right shoulder discomfort and a diagnosis of tendonitis. Dr. Theodoropoulos does not make any specific reference to the right rotator cuff partial tear shown on the March 2016 ultrasound.
28Aviva submits that the partial tear in the applicant’s rotator cuff was not caused by the accident but rather a degenerative problem that had existed since 2016. The applicant does not refute Aviva’s submission in his reply submissions.
29Based upon the ultrasound reports, Dr. Boucher’s addendum report and the fact that the applicant did not refute Aviva’s submission on Dr. Boucher’s addendum report in his reply submissions, I am satisfied on the balance of probabilities that the rotator cuff injury is a prior existing condition and not an impairment caused by the accident.
30For that reason, I find that the impairments the applicant suffered in the accident are the WAD II and the strains and sprains of his lumbar and cervical spine that all of three of the physicians who provided expert opinions agree he suffered.
Essential Tasks
31The applicant describes himself as a self-employed general contractor and owner of Upstart Renovations.
32In order to determine if the applicant was substantially unable to complete the essential tasks of his self-employment, I must first be satisfied on the balance of probabilities what the essential tasks of his pre-accident self-employment were.
33Aviva submits that the applicant has not provided any evidence of the essential tasks of his self-employment. Aviva submits that the applicant’s factual allegations in his written submissions of the essential tasks of his self-employment are not evidence of the essential tasks.
34In response to Aviva’s submission, the applicant replies that at no time did Aviva ask him any questions about the essential tasks of his employment and that both Dr. Boucher and Dr. Theodoropoulos provided opinions on whether he was able to perform the essential tasks of his self-employment without further evidence.
35The applicant further replies that Dr. Boucher’s report should be not be given as much weight as Dr. Theodoropoulos’s because he did not identify the essential tasks of the applicant’s self-employment while Dr. Theodoropoulos’s report refers to the essential tasks.
36I have reviewed the documentary evidence of both parties and for the reasons provided below I am satisfied that the applicant has proven on the balance of probabilities the tasks as set out by the applicant in his submissions were the essential tasks in his pre-accident self-employment as a general contractor.
37The applicant submits that his work as a self-employed General Contractor was a physically demanding job which required overhead lifting, bending and carrying. He also submits that the essential tasks of his employment included renovating and completing homes and/or offices which can entail dry walling, tile installation, painting, plumbing, framing and hardwood floor installation.
38The fact that the applicant’s employment included renovations and completing homes/office is substantiated by the Employer’s Confirmation Form (OCF-2).20 On this form the applicant describes his job as “Renovations” and the essential tasks of his employment as “renovate/complete homes/offices”.
39The activities of dry wall installation, painting, plumbing, framing and hardwood installation are identified in the March 26, 2019 IE report of Dr. Sandhu. 21 The report states that these activities can involve frequent heavy lifting, repetitive bending and above shoulder activities.
40Dr. Theodoropoulus reported that the applicant was working in construction and that his job was mostly physical in nature.22 Dr, Theodoropoulus stated that the applicant would have difficulty with overhead activities and lifting physical items.
41Based on the evidence of Drs. Sandhu and Theodoropoulus I am satisfied on the balance of probabilities that the tasks of dry walling, painting, plumbing, framing and hardwood installation identified by Dr. Sandhu and Dr. Theodoropoulos are essential tasks of the applicant’s self-employment and that these essential tasks involve frequent heavy lifting, repetitive bending and above shoulder activities.
Substantial Inability
42Having identified the essential tasks of the applicant’s self-employment I must now consider whether applicant has shown on the balance of probabilities that his WAD II and the strains and sprains of his lumbar and cervical spine resulted in a substantial inability to installing dry wall, install tile, paint, do plumbing and framing work or install hardwood.
43For the reasons provided below I am not satisfied on the balance of probabilities that the applicant suffered from a substantial inability to perform the essential task for his self-employment as a contractor from June 25, 2018 to March 2, 2019.
44I am not persuaded that the applicant meets the test for IRBs because of the inconsistencies in his evidence which affects its credibility.
45The Disability Certificate (OCF-3) dated July 18, 2018 indicates that the applicant was unable to perform the essential tasks of his employment and was not able to return to work on modified hours or duties. These statements are contradicted by the December 18, 2018 CNR of chiropractor, Dr. Deokiesingh. This CNR indicates that the applicant returned to work one month after the accident on modified hours. One month after the accident corresponds with the date of the OCF-3.
46On August 22, 2018 the applicant told Dr. Boucher that he had not returned to work at all since the accident. This is also contradictory to what he told Dr. Deokiesingh on December 18, 2018.
47In the September Minor Injury Discharge Report (OCF 24) Dr.Sajjad Iqbad provided the opinion that the applicant was able to perform his previous work activities on a partially/modified basis.23 A CNR of Health Max of the same date indicates that the applicant had returned to modified duties.24
48The applicant told Dr. Sandhu on March 26, 2019 that he had not returned to work since the accident. On March 29, 2019 the he told Dr. Theodoropoulos that he had tried a couple of times to go back to work but was unable to do so because of secondary pain. These accounts fly in the face of the report to Dr. Deokiesingh and the OCF 24 report.
49In his reply the applicant submits that he returned to work on or about March 2019 and he claims IRBs until March 2, 2019. Clearly the applicant misled both Dr. Sandhu and Dr. Theodoropoulos about his work status.
50The applicant also misled Dr. Boucher, Sandhu and Theodoropoulos about his prior rotator cuff tear. He told all three assessors that he had no previous injuries.
51The applicant relies on the opinions provided by Dr. Theodoropoulos to substantiate that he was substantially unable to perform the essential tasks of his self-employment. I am unable to give the report of Dr. Theodoropoulos much weight because of the evidence that he misled the doctor about his return to work.
52The applicant is correct that Dr. Boucher did not consider what the essential tasks of the applicant’s self-employment were when he provided the opinion that the applicant did not suffer a substantial inability to perform the essential tasks of his self-employment. Dr. Boucher did, however, question the credibility of the applicant with the following comment: “The diagnosed injuries are consistent with the mechanism of the accident; however, the apparent severity reported by the claimant is not.”25
53The fact that the applicant misled both Dr.Theodoropoulos and Dr. Sandhu and gave different accounts to his chiropractor and Dr. Boucher about his return to work brings into questions his credibility and the reliability of any of the self-reports he made.
54For that reason, I am not satisfied on the balance of probabilities that the applicant suffered a complete inability to perform the essential tasks of his self-employment at any time after the accident.
55Having determined that the applicant has not met his burden of proof to show the essential tasks of his self-employment as a general contractor and having determined the applicant has not shown on the balance of probability that he was substantially unable to perform the essential tasks of his self-employment, I dismiss his application for IRBs and interest on overdue benefit payments.
INTEREST
56Having determined that there are no IRBs owing to the applicant it follows that there is no interest owing on overdue payments of benefits.
ENTITLEMENT TO BENEFITS POST 104 WEEKS
57The issue of the applicant’s entitlement to IRBs post 104 weeks was not specifically identified as an issue in this hearing. Aviva submits that because the applicant has not made any submissions with respect to his entitlement to IRBs post 104 weeks, he has conceded that he is not entitled to IRBs after 104 weeks.
58In his reply submissions the applicant submits his entitlement to benefits post 104 weeks has not been assessed or denied. If I understand his submission, he wants to preserve the right to bring another application to the Tribunal for the determination of his entitlement to IRBs post 104 weeks.
59Having determined that the applicant is not entitled to any IRBs for the period up to 104 weeks after the accident there is no need for me to determine if he has conceded that he is not entitled to IRBs after 104 weeks.
QUANTUM OF BENEFITS
60In the event that I am wrong in my determination that the applicant is not entitled to IRB’s I have considered the issue of the quantum of benefits the applicant would be entitled to. For the reasons provided below I am not satisfied that the applicant has provided sufficient evidence to show on the balance of probabilities the amount of IRB he would be entitled to.
61The applicant’s initial submissions claim an IRB of $400.00 per week without reference to the evidence he relied on to arrive at this amount. For that reason, Aviva submits that the applicant has not shown on the balance of probabilities the amount of IRB he would be entitled to.
62Aviva submits that according to the applicant’s personal income tax return from 2017 and s. 4(2) and 7(2) of the schedule the applicant’s base amount of IRBs is $188.15. In his reply submissions the applicant agrees with this figure. The applicant also agrees that Aviva is entitled to a deduction from the weekly based in the amount of 70% of any income from self-employment earned post-accident and during the period the applicant is eligible to receive and IRB.
63The applicant submits that he is entitled to $188.15 per week from the period between June 24, 2018 to March 2, 2019 less 70% of the $339.00 earned on September 23, 2018 according to the Quick Report he filed in evidence.26 Aviva submits that there is more than one way to interpret the financial information in the Quick Report including one that would result in wiping out an IRB benefit. The applicant submits that if the Tribunal adopted Aviva’s approach, the IRB payable would be $100.93 per week.
64Despite the Schedule providing that an insurer must pay an expense incurred by an insured person for the preparation of a report for the purpose of calculating a person’s income from self-employment the applicant has not submitted any report or detailed calculation of the benefit he is seeking.27 The applicant did not provide a detailed calculation of the $100.93 weekly payment. The Quick Reports show an entry of $621.50 for September 23, 2018 not the $339.00 amount the applicant refers to. I am unable to determine how the higher income amount would affect the calculation of the weekly benefit.
65I agree with Aviva that the applicant has not submitted sufficient documentation to substantiate an IRB calculation. While he has produced his 2017 income tax return, he has not produced any evidence except the Quick Reports and Profit and Loss Statements for 2017 and 2018. These records are self-generated and are not substantiated by any bank records or vouchers. The Order of Vice-Chair Flude required the applicant to produce his business records from January 2017 to the date of the order.28 While business records are not defined in the order, I understand that the term business records to include bank records and documentation to verify the entries in the Quick Reports.
66For the reasons provided above I am not satisfied on the balance of probabilities that the applicant has provided sufficient evidence to show the amount of IRB that would be payable if he was entitled to the benefit.
ORDER
67For the reasons provided above I ORDER:
i. The applicant’s application for Income Replacement Benefits and interest on overdue payments of benefits is dismissed.
Released: January 8, 2021
__________________________
Susan Mather
Vice Chair
Footnotes
- O. Reg. 34/10 made under The Insurance Act, R.R.O., 1990, C.I.8.
- The applicant concedes in his reply submission that he returned to work.
- Order of adjudicator Brad J. Wallace dated February 6, 2020 and released on April 9, 2020.
- I am unable to determine the font size and line spacing in the ADOBE version of the document.
- Rule 9.4 Common Rules of Practice and Procedure, Licence Appeal Tribunal, Animal Care review Board, Fire Safety Commission, October 2, 2017.
- S. 5(1)2. O.Reg.34/10
- S. 3 O. Reg. 34/10
- Clinical note and record from June 19, 2018 visit to walk-in clinic, applicant’s document book, Tab 7
- Disability Certificate dated July 18, 2018, applicant’s document book, Tab 8
- Clinical note and record of family physician, applicant’s document book, Tab 9
- Ultrasound report dated September 18, 2018, applicant’s document book, Tab 10
- CNR of family physician dated March 30, 2016, applicant’s document book, Tab 2
- Ultrasound report dated March 22, 2016, applicant’s document book, Tab 4
- CNR of family physician, dated March 2, 2017, applicant’s document book, Tab 5
- Dr. Boucher did an addendum to his report after reviewing the ultrasound reports and removed the diagnosis of right should sprain and strain.
- IE report of Dr. Boucher dated September 4, 2018, applicant’s document book, Tab11
- Assessment of Dr. Theodoropoulos dated March 29, 2019, applicant’s document book Tab 20
- IE of Dr. Sandhu dated March 26, 2019, applicant’s document book. Tab 18
- Addendum IE of Dr. Boucher, Aviva’s documents Tab 19 at p.167
- Employer’s Confirmation Form (OCF-2) dated July 13, 2018, applicant’s document book, Tab 36
- IE of Dr. Sandhu, March 26, 2019, applicant’s document book, Tab 18
- Assessment Report of Dr. Theodoropoulos, dated March 29, 2019, applicant’s document book, Tab 20
- Minor Injury Discharge Report dated September 24, 2018, applicant’s document book Tab 14
- CNR of Health Max dated September 24, 2018, applicant’s document book Tab 15
- IE report of Dr. Theodoropoulos, dated March 29, 2019. applicant’s document book, Tab11
- Tab 21, applicant’s documents
- S. 7(4) O. Reg. 34/10
- Order of Vice-Chair Flude made October 19, 2019 and released on January 3, 2020