Citation: Kargol v. Aviva General Insurance, 2021 ONLAT 19-011590/AABS

Released Date: 03/02/2021

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:

Bartek Kargol

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Bartek Kargol, Applicant

John Adair, Counsel

For the Respondent:

Aviva General Insurance, Representative

Hyla Korn, Counsel

Court Reporter:

Athavan Jaya

Heard by Videoconference:

November 18-20, 2020

1B.K. was involved in an automobile accident on July 17, 2016 and sought income replacement benefits (“IRB”) and a medical benefit from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). Aviva denied the benefits. B.K. applied to the Tribunal for resolution of the dispute.

2At the videoconference hearing, the medical benefit in dispute was resolved. The remaining issues in dispute between the parties, being $400.00 per week in ongoing IRBs, interest and an award under s. 10 of Ontario Regulation 664 (O. Reg. 664) proceeded. Aviva’s position is that B.K. is not entitled to IRBs as he does not meet the pre- and post-104-week test for entitlement under the Schedule and that it did not unreasonably withhold or delay the payment of benefits as a result.

ISSUES

3The issues I have been asked to determine are as follows:

a. Is B.K. entitled to IRBs in the amount of $400.00 per week from December 2, 2017 to date and ongoing?

b. Is B.K. entitled to an award under O. Reg. 664 because Aviva unreasonably withheld or delayed the payment of benefits?

c. Is B.K. entitled to interest on any overdue payment of benefits?

FINDING

4For the reasons set out below, I find that:

a. B.K. is entitled to weekly IRBs in the amount of $400.00 for the period of December 2, 2017 to July 18, 2018;

b. B.K. is entitled to weekly IRBs in the amount of $400.00 for the period of July 19, 2018 to date and ongoing.

c. B.K. is entitled to interest on the overdue payment of IRBs.

d. B.K. is entitled to an award.

BACKGROUND

5B.K. testified that he worked at Mitsubishi Aerospace as a sheet metal fabricator and airplane mechanic and was qualified by way of education and training to perform such duties. B.K.’s description of his job duties was assembling airplane parts and performing various mechanical repairs to airplanes. He gave evidence that the job required a high level of precision due to the nature of the work and the level of responsibility given his position as a structural mechanic of ensuring the planes function properly.

6B.K. also testified that he moved to Barrie and switched positions within a new company, Brotech Precision. His evidence was that he worked at Brotech Precision almost right up to the date of the accident. B.K. testified that his position at Brotech Precision was that of a Purchaser and Processing Manager and Shop Help. The role involved working at a desk and required other aspects of physically demanding work.

ANALYSIS

Is B.K. entitled to pre-104 IRBs?

7In order to demonstrate entitlement to pre-104 week IRBs pursuant to s. 5(1)2 of the Schedule, B.K. must establish on a balance of probabilities that, as a result of the accident, he suffered an impairment that caused him to be substantially unable to complete the essential tasks of his pre-accident employment as a sheet metal fabricator and airplane mechanic. The onus is on B.K. to satisfy his burden and I find that he has done so.

8There are two elements of consideration:

a. Was B.K. employed at the time of the accident; and

b. Does B.K. suffer a substantial inability to perform the essential tasks of his pre-accident employment?

9It is not disputed that at the time of the accident, B.K. was employed by Brotech Precision as a Purchaser and Shop Assistant working 40 hours per week.

10I find that B.K. has established on a balance of probabilities that he is substantially unable to perform the essential tasks of his pre-accident employment as a sheet metal fabricator, airplane mechanic and shop helper. I am persuaded by B.K.’s evidence regarding how his impairments specifically impact his functionality and ability to perform the essential tasks of his pre-accident employment. I note that the above-mentioned positions require a moderate to heavy physical demand level.

11B.K. argues that as a result of the accident, he can no longer perform the physical requirements of his positions with Mitsubishi Aerospace or Brotech Precision. Both positions required a significant amount of time standing and walking, prolonged sitting, as well as lifting heavy pieces of equipment several times throughout the duration of any given shift. As a result of his broken right leg and subsequent ongoing pain, ladder climbing, heavy lifting, walking long distances, sitting for prolonged periods and carrying heavy equipment are difficult tasks for B.K. to perform.

12B.K. relies on the orthopaedic report dated August 1, 2018 from Dr. Karabatsos in support of his claim for IRBs. In the report, Dr. Karabatsos notes that in December 2017, B.K. attempted a return to work at an aerospace company in Toronto. After completing the required training, he worked in a physically demanding position, however, after five days, he was not able to continue with the physical demands of the job due to pain. B.K. has not returned to work since that time. Dr. Karabatsos opined that B.K. would not be able to handle tasks associated with physically demanding positions. Dr. Karabatsos noted B.K.’s difficulty with navigating stairs, driving for extended periods of time, sitting/walking for prolonged periods and performing heavier lifting duties. Dr. Karabatsos also noted that B.K.’s impairments have been ongoing since the accident, despite receiving the appropriate therapeutic interventions. Dr. Karabatsos concluded that B.K.’s condition is not likely to substantially improve, that the impairments are permanent, and the prognosis for recovery is guarded.

13Aviva disagrees that B.K. is substantially unable to perform the essential tasks of his employment. Aviva relies on the psychological clinical interview with Karen Spivak, dated May 8, 2017, in which B.K. reports that he quit his job at Brotech two days prior to the accident because he was dissatisfied with it. B.K. testified that he was let go as a result of downsizing. Aviva also relies on the Disability Certificate dated September 14, 2016, at Part 6, where the author notes: “modified desk job ok”. The inference is that B.K. could suitably pursue a less physically demanding office position with modifications.

14While I agree that B.K.’s most recent employment position involved less physically demanding work, I disagree with Aviva that he is not substantially unable to perform the essential tasks of his last level of employment. B.K.’s training and education is in the area of sheet metal fabrication and airplane mechanics. B.K. testified that due to his relocation to Barrie, he was no longer able to travel to work at Mitsubishi Aerospace, and because of the relocation, similar airplane mechanic work was not available in Barrie. With a background in sheet metal fabrication, B.K. found work he was trained and experienced in with Brotech Precision. Unfortunately, due to layoffs, B.K. is no longer able to continue his employment with Brotech Precision. Further, B.K. attempted to return to a position he is duly qualified for, and due to pain, was unable to continue with.

15In making my determination, I prefer the report of Dr. Karabatsos, which I have set out the persuasive findings of, above. On behalf of Aviva, in a report dated August 31, 2017, Dr. Delaney, orthopaedic surgeon, notes that B.K. has ongoing pain, despite the evidence of a well-healed right leg fracture. Throughout his initial report, and two addendum reports, Dr. Delaney notes ongoing pain, defers the diagnoses of anything beyond orthopaedic symptomatology to the appropriate specialists and concludes that B.K. does not suffer a substantial inability. Also, on behalf of Aviva, Psychologist Dr. Salerno concluded that, despite the diagnosis of adjustment disorder with mixed anxiety and depressed mood, B.K. did not suffer a substantial inability.

16Respectfully, I disagree with Drs. Delaney and Salerno. B.K. reported to Dr. Karabatsos, Dr. Delaney, Dr. Salerno and psychovocational assessor Allan Walton that his ongoing pain has prevented him from returning to work. The pain complaints have been consistent to the assessors retained on behalf of B.K. as well as the s. 44 assessors retained by Aviva. There was no finding of any symptom magnification, with the various assessors noting that B.K. was reliable and did not appear to exaggerate his pain symptoms.

17B.K.’s position is further supported by the report from neurologist Dr. Basile. Dr. Basile opined that B.K. suffered from secondary pain due to the right leg fracture. Dr. Basile also noted that B.K. was limited in his ability to lift, squat, bend, stand and walk for extended periods of time, as a result of the right leg pain. Dr. Basile mentioned the type of pain was similar to the pain symptomatology mentioned by Dr. Delaney and in diagnostic imaging reports, confirming the specific type of injury that B.K. suffered.

18Although Aviva argues that the essential tasks of B.K.’s role at Brotech Precision were mainly working at a desk, there were physical elements of the position that are directly impacted by the right leg pain, in addition to the prolonged sitting that were noted to be difficult. I note that the focus of the test is broad and must necessarily consider not only whether B.K. can perform the essential tasks of his current employment (due to his relocation), but also subsequent employment, as a steel fabricator and airplane mechanic, that he made an effort to return to in December 2017.

19I do not find that Dr. Delaney or Dr. Salerno provided a convincing analysis of the impact of the right leg injury on B.K.’s ability to perform the essential physically-demanding tasks of his pre-accident and post-accident employment. Further, Dr. Basile, as a neurologist, can better ascertain the extent of the pain symptomatology beyond the healed fracture, which is supported by diagnostic imaging. As a psychologist, Dr. Salerno did note the impact of the accident, and the ongoing impact of the pain complaints and other psychologically based findings as a result of the accident, yet he concluded that from a psychological standpoint, B.K.’s impairments were mild. I do not disagree with Aviva that B.K. has somewhat improved from a psychological standpoint, however, as the essential tasks of his pre-and post-accident employment have been mainly physical, I do not find Dr. Salerno’s report to be persuasive.

20On the evidence, I find that B.K. is unable to meet the physical demands of his pre-accident employment as a sheet fabricator/shop help/airplane mechanic. B.K. relied on an orthopaedic report and neurological report that I find persuasive and compelling. I find he has established on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his pre-accident employment.

Is B.K. entitled to post-104 IRBs?

21In order to be entitled to IRBs beyond the 104-week post-accident period, B.K. must satisfy the post-104 test. The test for entitlement is set out in s. 6(2) of the Schedule, and provides that the insurer is not required to pay an IRB after the first 104 weeks of disability unless, as a direct result of the accident, the insured suffers a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. This test is a more stringent test than the pre-104 IRB test.

22Based on the testimony and evidence presented, I find that B.K. has met his burden to establish, on a balance of probabilities, that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

23B.K. testifies that due to his accident-related chronic pain, he met his onus. He has not been able to return to work since December 2017, despite efforts to return to work in December 2017 and after receiving training (and briefly working) in a position that he was educated, trained and experienced in. He submits that he is unable to participate in physically demanding jobs and sedentary jobs that require prolonged sitting.

24B.K. relies on a September 4, 2018 report from chronic pain specialist Dr. Jacobs. In his report, Dr. Jacobs indicates he has reviewed the following reports:

a. The August 3, 2016 report of orthopaedic surgeon, Dr. Ikejiani, who notes the right leg injury, right ankle sprain and some tenderness and swelling of the right knee;

b. A January 19, 2017 MRI that indicated no joint effusion and otherwise unremarkable findings in the right knee;

c. A consultation note of Dr. Ikejiani dated February 2, 2017, which queried a deltoid tear which was non-surgical. Dr. Ikejiani recommended ongoing physiotherapy;

d. An April 10, 2017 report from Dr. Mailis that discussed bone scan findings indicating “abnormal uptake in the right fibular head and medial malleolus.” The scan suggests that this is consistent with the type of injury. Dr. Mailis recommended surgery to fix the injury;

e. A note dated March 11, 2017 from Dr. Bafundi, which indicated that on examination, B.K.’s neurological responses were consistent with the local injury to the muscle in the right leg and right peroneal nerve; and

f. The multidisciplinary report dated August 31, 2017 from Dr. Delaney and Dr. Salerno, as discussed above.

25Dr. Jacobs opined that B.K has suffered injuries to his lumbar spine, at the site of the right leg fracture and right ankle that have developed into chronic pain. Dr. Jacobs goes on to state that as a result of these injuries, B.K. suffers functional impairment which prevents him from engaging in his activities of daily living and his vocational activities. From a psychological perspective, Dr. Jacobs opined that “central sensitization has also occurred, exhibited by anxiety, depression, and problems with motivation.”

26Aviva submits that the evidence does not support that B.K. suffers from chronic pain, and as a result that he does not suffer a complete inability to engage in any employment, thereby failing to satisfy the post-104 test. Aviva points to the fact that B.K. last sought and received treatment in December 2017. In addition, he last saw his family physician, Dr. Kargol, in July 2017 and indicated that he stopped treatment with his physiotherapy provider in 2019 because he found it unhelpful. Despite this, the disputed medical benefit approved by Aviva at the hearing was for physiotherapy treatment.

27I am persuaded by the evidence of Drs. Basile, Karabatsos, and Jacobs. Drs. Basile and Karabatsos indicated in their respective reports that B.K. has reached maximum medical recovery and that his impairments are permanent. Dr. Jacobs summarized that B.K.’s functional impairment is permanent and will affect his ability to do his activities of daily living and vocational activities.

28Dr. Basile specifically comments on the impact of B.K.’s ability to earn a living, noting that “his ongoing neck and lower back pain prevent him from any tasks involving heavy lifting, bending, prolonged sitting or standing.” Dr. Basile also noted cognitive impairment secondary to post-concussive syndrome, affecting B.K.’s behaviour, personality, his ability to work with others, as well as his concentration, attention and balance. Dr. Basile concluded that as a result, B.K. is unable to return to work and suffers a complete inability.

29Dr. Karabatsos notes in his report that “from an orthopaedic perspective, B.K. would not be able to handle the type of tasks associated with more physically demanding positions. He would more than likely have difficulty navigating stairs, driving for extended periods of time, sitting or walking for prolonged periods of time, or performing heavier lifting duties.” Dr. Karabatsos opined that B.K. is “disadvantaged from an occupational perspective as a result of the subject accident.” Dr. Karabatsos concluded that B.K.’s condition would not substantially improve and considered the impairments to be permanent.

30Dr. Jacobs noted that as a result of his functional impairments, B.K. is unable to do his pre-accident activities on a regular basis because more activity causes the pain to worsen. Dr. Jacob’s prognosis for B.K. was guarded because the pain symptomatology is unlikely to revert back to its previous status.

31B.K. has been educated, trained and is experienced in positions that require heavy physical and cognitive functions. I find that the assessors have shown that B.K.’s impairments severely limit his ability to engage in these heavy physical and cognitive functions. The impact on his ability to perform heavy lifting, sitting, walking for extended periods, bending and navigating stairs, make it very difficult for B.K. to find suitable employment. Given his ongoing limitations, his prospects for gainful employment are minimal, at best.

32For the reasons set out above, I find that, on a balance of probabilities, B.K. suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

AWARD

33If I find that Aviva has unreasonably withheld or delayed payment of IRBs, s. 10 of O. Reg. 664 gives me the discretion to award a lump sum of up to 50 percent of the amount to which B.K. is entitled to at the time of the award.

34B.K. submits he is entitled to an award because Aviva was unreasonable in its termination and withholding of IRBs. He argues that Aviva failed to provide notice regarding denied physiotherapy treatment as it failed to provide the termination notice and reports to his proper contact information. B.K. further submits that Aviva failed to reassess any new information it received, as was indicated in the adjuster’s log notes from April 2019.

35Aviva submits that it relied on its s. 44 reports and, based on the conclusions in those reports, it determined that B.K. was not entitled to any further pre-104 or post-104 IRBs. Its position is that this does not amount to an unreasonable withholding or delay of benefits.

36I find that B.K.’s claim for IRBs was unreasonably withheld because Aviva failed in its ongoing adjustment of the claim as evidenced by Aviva being provided the reports of Dr. Basile and Dr. Walton in April 2019, and not taking any action in considering those reports.

37Insurers have an obligation to continue to adjust their files as new information becomes available. I find that Aviva unreasonably denied B.K.’s claim of entitlement to IRBs even when presented with convincing evidence from Dr. Basile, Dr. Walton, Dr. Karabatsos and Dr. Jacobs regarding his physical limitations as a result of the accident.

38Aviva’s failure to acknowledge or respond to either of the medical reports received in April 2019, weakens its position that B.K. does not meet the requirements for post-104-week IRBs. Further, Aviva continued to rely on the reports of its assessors, despite three reports from medical assessors that challenged the conclusions of its assessors that Aviva relied on in denying IRBs. I find this conduct lead to an unreasonable delay, as it forced a three-day videoconference hearing, plus time needed to render a decision.

39Case law has established the criteria for the consideration of granting an award. The award should be proportionate to a) the level of blame to be placed on the insurer’s conduct; b) the vulnerability of the insured; c) the potential or actual harm to the insured; d) the necessity of deterring future such conduct from the insurer; d) the advantage gained through the insurer’s misconduct; and e) a consideration of any other action that has been or will be taken against the insurer due to its conduct. Through subsequent case law, an additional consideration has been the overall length of the delay. These are the factors that the Tribunal has considered assistive when determining a s. 10 award.²

40Neither B.K. nor Aviva made submissions on the percentage of the lump sum award. As indicated earlier, O. Reg. 664 provides that I may award up to 50% of the IRB amount owing. Aviva did approve a treatment plan at the start of the hearing, which I find is an indication that it agrees that B.K. still requires treatment for his accident-related impairments. However, Aviva did not take appropriate steps in its ongoing duty to continue adjusting B.K.’s claim, which led to IRBs being unreasonably withheld from the time B.K. submitted the reports I refer to above, that the delay became unreasonable. I was not directed to any evidence that B.K. had another source of income to rely on, and he has not been able to return to work, despite an attempt in December 2017. As he is relying on his insurance provider to dutifully adjust his claim and consider the impact of his injuries on his ability to earn income, the evidence of his lack of ability to do so should have resulted in further consideration on Aviva’s part in reconsidering its prior determination in denying IRBs.

41Bearing this in mind, I find that an award of 10% is appropriate in this case. I decline to calculate the exact amount and defer the calculation of the amount to the parties as it is not clear on which exact date that the reports from Drs. Basile and Walton were provided to Aviva. However, I find that the award is payable on the amount of IRBs owing from the date the parties agree the reports were provided to Aviva in April 2019. If there is a disagreement in the calculation of this amount, the parties can contact the Tribunal to schedule a case conference within 30 days of the release of this decision.

ORDER

42For the reasons set out above, I order that:

a. B.K. is entitled to IRBs in the amount of $400.00 per week for the period of December 2, 2017 to date and ongoing.

b. B.K. is entitled to interest on the overdue payment of IRBs in accordance with s. 51 of the Schedule.

c. B.K. is entitled to an award under O. Reg. 664 of 10% of the amount he is entitled to on the date of this decision, with interest in accordance with the Schedule.

Released: March 2, 2021