Release date: 2021/03/15
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:
Ivan Fedko
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Ilan Liebner, Counsel
For the Respondent:
Jessica Bacopulos, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ivan Fedko (“applicant”) was involved in an automobile accident on May 9, 2019 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The applicant was 22 years old at the time of the accident.
2Aviva Insurance Company of Canada (“respondent”) paid income replacement benefits (“IRBs”) claimed by the applicant of $400.00 per week until December 1, 2019 at which time IRB was denied because the respondent determined the applicant did not meet the eligibility criteria for an IRB.
3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
ISSUES
4The issues to be decided are:
i. Is the applicant entitled to an income replacement benefit of $400.00 per week, from December 1, 2019 to date and ongoing?
ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. There is no special award. No interest is payable.
LAW
6An employed person’s entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment?
7In order to prove entitlement to IRBs post-104 weeks, s. 6(2) of the Schedule provides that the applicant must suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience.
8In the case of a person employed at the time of the accident, under s. 4 of the Schedule, the quantum of an IRB is calculated at 70% of a claimant’s gross pre-accident weekly income, up to a maximum of $400.00 per week.
9The onus is on the applicant to prove entitlement to IRB and quantum on a balance of probabilities.
ANALYSIS
Is the applicant entitled to IRB in the amount of $400.00 per week?
10The applicant submits he was employed as a hazardous material worker (asbestos remover) at a construction company. The applicant had been involved in a previous accident in June 2018 (“previous accident”) which he submits caused soft tissue damage and negatively affected his psychological wellbeing, but he was able to remain working.
11The applicant says he stopped working in May 2019 after the accident because of the injuries he sustained, specifically concussion, significantly exacerbated chronic back pain and anxiety and depressive symptoms. The applicant submits that he had pre-existing conditions which were exacerbated by the accident and prevent him from performing the essential duties of his pre-accident employment. To support his position that he meets the test for entitlement to IRB for both the pre and post-104 week periods, the applicant relies on various records including those of Dr. Baryla, his family physician including the clinical records, the July 5, 2019 OCF-3, disability certificate, and the July 31, 2020 letter. The applicant also relies on the reports of the respondent’s assessors.
12The respondent submits the applicant is not entitled to IRB because the applicant has not demonstrated that he has a substantial inability to perform the essential tasks of his pre-accident employment and has not demonstrated what the essential tasks of his pre-accident employment were despite requests for his employment records. The respondent asks that an adverse inference be drawn for failure to provide this material evidence. The respondent relies on the November 15, 2019 reports from its assessors Dr. Oshidari, physiatrist, and Dr. Goodfield, psychologist.
What were the essential tasks of the applicant’s employment?
13The applicant’s employment at the time of the accident required him to perform physical labour including multiple construction tasks and demolition such as removal of plaster, ceiling tile, floor tile and setting up containments and closures.
14Although the applicant refers to a May 29, 2019 OCF-2, no OCF-2 was filed by the applicant for this hearing. The applicant filed no evidence from the employer about the essential tasks of the applicant’s employment or his ability to perform them post-accident. Dr. Baryla’s disability certificate describes the applicant’s pre-accident work as “construction”. Although Dr. Baryla indicates the applicant is substantially unable to perform the essential tasks of his employment and cannot return to work on modified hours or duties, little detail is given about his employment until the letter of July 31, 2020 which refers to “physical labor, sit/stand for prolonged period of time, bend/twist, lift or carry >5kg”.
15Dr. Goodfield in her report comments that the May 29, 2019 employer’s confirmation form indicates that the applicant was employed full-time with I & I Construction Services Limited as an asbestos remover. His job was described as hazardous material worker and the essential tasks were listed as “multiple construction task/demo such as asbestos plaster removal, ceiling tile, floor tile removal, etc. setting up containments and closures”. This appears to be the most complete description of the essential tasks of the applicant’s employment and is sufficient for the purposes of an IRB analysis.
Does the applicant suffer a substantial inability to complete the essential employment tasks as a result of the accident?
16I find that the applicant does not suffer a substantial inability to complete his essential employment tasks as a result of the accident based on a lack of persuasive medical evidence.
17March 23, 2019, Dr. Baryla had advised the applicant to consider a less physical job or return to school due to his mechanical low back pain from the previous accident. May 4, 2019 Dr. Baryla diagnoses chronic back pain “after MVA” which has to refer to the previous accident as this accident was May 9, 2019.
18Although the applicant never returned to his employment after the accident, there is no evidence that he went to the hospital the day of the accident. The applicant did not see Dr. Baryla until some 11 days after the accident. Dr. Baryla diagnosed concussion and neck strain with augmented anxiety and depressive symptoms. Dr. Baryla recommends that the applicant remain off work, start physical therapy and get in touch with a mental health facility.
19The applicant was discharged from physical therapy treatment with a July 29, 2019 OCF-24, minor injury treatment discharge report, indicating “no additional intervention required”, indicating that the applicant is able to do his pre-accident work activities “partial/modified” and that he is “returning to school (college) in September 2019.
20Dr. Baryla’s July 5, 2019 disability certificate is not persuasive evidence of the applicant’s alleged substantial inability to perform the essential tasks of his employment for purposes of IRB beyond December 1, 2019. Dr. Baryla did not make a disability certificate after December 1, 2019 which is the period of time relevant to the applicant’s IRB claim in this hearing.
21Dr. Baryla’s July 31, 2020 letter which states that the applicant “suffers from chronic back pain that was significantly exacerbated in Dec 2019 – Mar 2020. Mr. Fedko was unable to do physical labor, sit/stand for prolong period of time, bend/twist, lift or carry >5kg” is also not persuasive. Firstly, there is no express causal connection stated in this letter between the applicant’s post-December 1, 2019 condition and the accident even though Dr. Baryla’s records stated this earlier in 2019. There is no explanation of the exacerbation of back pain from December 2019 to March 2020 or what caused this. Secondly, the statement that the applicant cannot “sit/stand” for prolonged periods of time is inconsistent with the applicant having started a three-year college program in September 2019. Thirdly, Dr. Baryla’s comments are limited to the period ending March 2020 even though Dr. Baryla’s letter is dated July 31, 2020. Fourthly, there is no indication in the letter that Dr. Baryla is aware that the applicant started working in April 2020. Fifthly, the restrictions in Dr. Baryla’s letter appear to conflict with her recommendations to the applicant such as starting regular therapeutic exercises in September 2019, going to the gym and exercise in December 2019, and exercise daily in March 2020.
22Although the applicant submits, he was able to do short-term light work in April 2020, no particulars of this employment, the tasks required, or income received were put forward by the applicant at this hearing.
23I prefer the evidence of the respondent’s assessors Dr. Goodfield and Dr. Oshidari over that of Dr. Baryla because they both assessed the applicant specifically with respect to IRB. Further, Dr. Oshidari has more specialized medical training and experience than Dr. Baryla.
24The applicant relies on Dr. Goodfield’s report in support of his claim for IRB because Dr. Goodfield diagnosed the applicant with adjustment disorder and mixed anxiety and depressed mood, as well as specific phobia, noted that the applicant’s mood was already compromised in relation to the previous accident but deteriorated further as a direct result of the accident and but for the accident his current level of impaired function would not exist. Contrary to this submission however, in the end, Dr. Goodfield opined that from a psychological perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Dr. Goodfield also reports that the applicant is now attending school full-time in pursuit of an alternative career and is managing.
25Dr. Oshidari reviewed the Dr. Baryla’s disability certificate and other records and examined the applicant. The applicant told Dr. Oshidari that he is required to engage in physical activity in construction. Dr. Oshidari noted that although based on the applicant’s statement, there is pre-existing neck and back pain due to previous accidents which never resolved as well as headache, Dr. Oshidari was not able to find any objective finding to support the subjective complaints of pain and limitation of function and therefore the pre-existing condition cannot affect the applicant’s presentation today. Dr. Oshidari found that the presentation of limitation of function is somewhat disproportionate to the nature of the accident and that his assessment of the applicant revealed a perception of harm or expectation of experiencing pain was a major contributing factor to discomfort and pain that the applicant is experiencing. Dr. Oshidari opined that in relation to musculoskeletal condition, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.
26Taken together, the weight of the evidence from Drs. Goodfield and Oshidari is that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. Even if there may be some tasks of his employment that the applicant might not be able to return to, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment in construction. The onus of proof is on the applicant and I find that he has failed to meet it.
Does the applicant suffer a complete inability to engage in any employment?
27As the applicant has not satisfied his burden of substantiating entitlement to pre-104-week income replacement benefit, the post-104-week income replacement benefit test of complete inability to engage in any employment cannot be met.
Is the applicant entitled to a Special Award ?
28Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that there was no payment unreasonably withheld or delayed. For these reasons, there is no award.
Interest
29As no benefits are payable, no interest is payable.
ORDER
30For the reasons above, I find that the applicant is not entitled to an IRB as claimed. No special award is made. No interest is payable. The applicant’s claim is dismissed.
Date of Issue: March 15, 2021
Avril A. Farlam, Vice Chair