Citation: Sidiura v. Aviva General Insurance, 2021 ONLAT 19-014095/AABS

Released Date: 07/14/2021

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:

Jasmine Sidiura

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Darcie Sherman, Counsel

For the Respondent:

Jessica M. Bacopulos, Counsel

HEARD:

By way of written submissions

1The applicant (“Ms. Sidiura”) was involved in an automobile accident on September 15, 2017 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Ms. Sidiura was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties agreed through their written submissions that the quantum being claimed for the income replacement benefit is $386.53 per week and not $400.00 per week as noted in the Tribunal’s case conference report and order dated August 4, 2020. The applicant also withdrew issue #3 as noted in the case conference report and order as follows:

Is the applicant entitled to $121.01 for medication, submitted on a claim form (OCF-6) dated November 10, 2017?

BACKGROUND

3Ms. Sidiura was the seat-belted driver of a vehicle which was rear-ended by another vehicle. She submits that, prior to the accident, she had pre-existing psychological impairments, which were stabilized prior to the accident, but she had no pre-existing physical impairments. She was assessed on the day of the accident by Dr. F. Khan, family physician. Dr. Khan’s clinical notes and records (“CNRs”) of that date¹ note whiplash, severe headache, nauseated, lightheaded while walking, whole body ache, abdominal pain, and anxious from the accident. She was diagnosed with mechanical muscular pain, physiotherapy and massage were recommended.

ISSUES

4The issues to be decided in the hearing are:

Is the applicant entitled to an income replacement benefit of $386.53 per week from March 6, 2018 to date and ongoing?
Is the applicant entitled to $2,004.96 for physiotherapy recommended by Avni Parmar in a treatment plan (OCF-18) dated March 1, 2018?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me and on a balance of probabilities, I find the following:

i. The applicant is not entitled to an income replacement benefit of $386.53 per week from March 6, 2018 to date and ongoing.

ii. The applicant is not entitled to $2,004.96 for physiotherapy recommended by Avni Parmar in a treatment plan (OCF-18) dated March 1, 2018.

iii. The applicant is not entitled to an award under Ontario Regulation 664.

iv. The applicant is not entitled to interest as no benefits are payable.

ANALYSIS

Essential tasks of Ms. Sidiura’s pre-accident employment

6At the time of the accident, Ms. Sidiura was working full-time as an Associate Merchant for Loblaws. She did not return to work following the accident and was paid IRBs at the rate of $386.53 per week from September 22, 2017 to March 6, 2018. Ms. Sidiura received physiotherapy treatment for her neck and back from Wanless Rehab and Wellness Centre from September 2017 - June 2018². A disability certificate (OCF-3) dated October 5, 2017³ was completed by this clinic, noting she had a substantial inability to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident.

7To address the issue of entitlement to income replacement benefits (“IRBs”) from March 6, 2018, the essential tasks of Ms. Sidiura’s employment need to be identified before I can address whether she has a substantial inability to perform those activities within 104 weeks of the accident as a result of the injuries she sustained from the accident. This is necessary to determine whether she meets the substantial inability test as set out in s. 5(1) of the Schedule.

8Ms. Sidiura submits her pre-accident duties as a full-time Associate Merchant at Loblaws included: mostly data entry work and replying to emails, all of which involved prolonged sitting in front of a computer. She also attended meetings and prepared daily reports related to pricing/cost issues. She submits this work required concentration/attention to detail, the ability to sustain attention for prolonged periods, and multi-tasking. I accept these were the essential tasks of her pre-accident employment. She submits she was unable to return to work for one-and-a-half years following the accident. She was hired for a new job in February 2019 and another job in January 2020 but submits her employers let her go from both these jobs due to poor performance.

Is Ms. Sidiura entitled to income replacement benefits within 104 weeks of the accident?

9On a balance of probabilities, I find Ms. Sidiura has not established that she is substantially unable to perform the essential tasks of her pre-accident employment for the following reasons:

i. Ms. Sidiura relies on the CNRs of family physician, Dr. F. Khan⁴. While I accept that she sustained neck/back pain and psychological impairments as a result of the accident, I do not find the CNRs establish she has a substantial inability to perform the essential tasks of her pre-accident employment. The CNR of Dr. F. Khan dated October 6, 2017⁵ notes that Ms. Sidiura requested an OCF-3 from Dr. F. Khan. In this CNR, Dr. F. Khan notes “explain that she is not eligible for disability, but she wants us to fill the form…will do same”. An OCF-3 signed by Dr. F. Khan was not produced for the hearing. From this evidence, I find the CNR entry dated October 6, 2017 supports that Dr. F. Khan most likely did not find Ms. Sidiura’s injuries sustained from the accident support entitlement to IRBs. I also draw an adverse inference that Ms. Sidiura did not produce the OCF-3 alluded to within the CNR entry of October 6, 2017.

ii. The CNR of Dr. F. Khan dated November 6, 2017⁶ notes persistent upper back pain, radiating to her neck due to the accident and that she suffers from sleep deprivation. Dr. F. Khan notes she is getting anxious, restless, irritable all the time, and excessively crying. She reported to Dr. F. Khan that she is unable to start work or attend any public place as she cannot sit for very long. Dr. F. Khan diagnosed her with depression. On December 6, 2017, Dr. F. Khan also diagnosed her with post-traumatic stress disorder. She reports to Dr. F. Khan on January 4, 2018⁷ ongoing musculoskeletal pain and sleep difficulties since the accident. She is diagnosed with depression and mechanical backache. Dr. F. Khan notes persistent pain complaints relating to neck and back, low mood and difficulty sleeping over the next few months⁸. Dr. F. Khan advises lifestyle changes, going to the gym, practicing relaxation techniques, and for her to be busier with volunteer work⁹. Based on this evidence, I accept Dr. F. Khan diagnosed her with accident-related impairments and provided recommendations. Despite Ms. Sidiura reporting to Dr. F. Khan that she is unable to return to work, Dr. F. Khan does not note in the CNRs that she is unable to return to work or that she requires any modifications to her pre-accident job duties. As a result, I do not find Dr. F. Khan’s CNRs support she is unable to perform her pre-accident employment tasks.

iii. Ms. Sidiura produced a psychological assessment report completed by psychologists Dr. S. Singh and Dr. S. Padda, dated March 21, 2018¹⁰. Ms. Sidiura is diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder, Persistent with Predominant Pain, Moderate. Twelve sessions of psychotherapy combined with cognitive behaviour therapy were recommended. I find this report provides little persuasive value regarding Ms. Sidiura’s entitlement to IRBs. This is because the report does not mention the essential tasks of Ms. Sidiura’s pre-accident employment. Further, the report does not provide an opinion on whether she has a substantial inability to perform her pre-accident job duties. As a result, I afford little weight to this report in assisting with the determination of IRB entitlement.

iv. Ms. Sidiura submits she was unable to return to her pre-accident job at Loblaws following the accident as a result of her impairments sustained from the accident. However, I am not persuaded by the applicant’s submissions on this point. This is because she has not produced a copy of her employment file, nor a Record of Employment (ROE) from Loblaws. I find this information is relevant to be able to determine her pre-accident job duties and her ability to perform these duties prior to the accident. In addition, this information is also directly relevant to establish the reasons why her employment ceased at Loblaws following the accident. I find this information relevant for determining IRB entitlement. As a result of the applicant failing to produce this information, I draw an adverse inference.

v. Ms. Sidiura relies on a chronic pain assessment report completed by Dr. G. Karmy, chronic pain specialist, dated August 27, 2020¹¹. The assessment was performed virtually due to the Covid-19 pandemic. Dr. Karmy diagnosed Ms. Sidiura with chronic pain. Under the section titled Document Review on page 3 of the report, Dr. Karmy notes “Records from Dr. F. Khan, and Cooper Ridge Medical from September 2014 - December 2019 (there were no clinical notes of Dr. Khan)”. Dr. Karmy reviewed the following contained in the file: the CNRs of Dr. A. Memon, psychiatrist, dated March 13, 2018 which notes she was diagnosed with post-traumatic stress disorder. Dr. Karmy reviewed the psychological assessment report of Dr. S. Singh, and Dr. S. Padda, psychologists. Dr. Karmy also reviewed the treating psychologist records from November 8, 2017 to July 4, 2018 from Triloka Psychology and Integrative Health Care and the CNRs of Wanless Rehab & Wellness Centre from September 16, 2017 - June 21, 2018. He notes that some of the handwritten notes from both clinics were illegible. Dr. Karmy performed a virtual physical examination and his report notes stiffness with neck movement and pain exacerbation with flexion and hyperextension of the dorsolumbar spine. On page 10, Dr. Karmy notes “Chronic Pain Syndrome is usually developed when psychological complications further increase the original pain”. I find Dr. Karmy ‘s report does not identify the criteria he utilized in reaching the conclusion that she suffers from a functional impairment precluding her from performing the essential tasks of her pre-accident employment. I find this makes his report less persuasive.

vi. Dr. Karmy notes that Ms. Sidiura reported that she started working as a Fund Accountant for Royal Bank (“RBC”) in February 2019. She reported it involved working in front of a computer and that it was cognitively demanding. She reported she could not sit continuously for longer than 30 minutes due to neck and back pain. The report further notes her headaches were triggered by prolonged computer screen viewing. The report notes her contract was not renewed and she was let go due to poor performance in May 2019. She reported she was hired as an Operations Officer at Toronto Dominion Bank (“TD Bank”) in January 2020. She reported she was unable to perform the essential job duties at full-capacity due to her post-accident limitations, psychological, and sleep problems and was laid off due to poor performance in March 2020¹². She also reported symptoms of driver, passenger and pedestrian anxiety which impact her ability to commute to work. Dr. Karmy opines that as a result of her being unable to sit continuously for more than 30 minutes as it significantly aggravates her back pain, issues with headaches, cognitive difficulties and psychological problems, these all pose “unsurmountable barriers” to being able to perform the essential tasks of her pre-accident employment.¹³ On Page 12 of the report, Dr. Karmy notes that prior to the accident she was able to work in her occupation without any limitations. I find the information she self-reported is not corroborated by the documentary evidence. For example, the CNRs of Dr. F. Khan make no reference to chronic pain, nor that the applicant’s accident-related impairments have caused her to suffer a substantial inability to return to her pre-accident job duties. Further, neither the employment file nor the ROE from Loblaws, where she was working at the time of the accident, were produced. As a result, I am unable to determine her ability to perform her job duties pre-accident. For these reasons, I am not persuaded by this report that the applicant suffers from chronic pain causing a functional impairment that prevents her from performing the essential tasks of her pre-accident employment.

vii. The applicant produced post-accident employment files from RBC and TD Bank,¹⁴ which Ms. Sidiura relies on to support that she was unable to perform the essential job duties due to post-accident limitations, including psychological impairments and sleep problems. The RBC employment file contains offers of employment for 2013 and 2015. While Ms. Sidiura reported to Dr. Karmy she was terminated in May of 2019 from RBC, I do not see the termination letter contained in the employment file and I find a majority of the information in the file relates to prior employment with RBC from 2013 - 2016 which pre-dates the accident. I find the RBC employment file is not helpful in determining her entitlement to IRBs within 104 weeks as a result. The TD Bank employment file notes her employment commenced January 6, 2020 and was terminated March 11, 2020. While the termination letter dated March 11, 2020 confirms she was terminated from TD Bank on this date, I do not find this evidence persuasive that her termination was as a result of impairments sustained from the accident, causing a substantial inability to perform her pre-accident job duties. This is because accommodations made to perform her job duties and her subsequent inability to continue being able to perform them are based on self-reported information to Dr. Karmy and the CNRs of Dr. F. Khan do not support that she has an inability to perform her pre-accident job duties. Therefore, I am not persuaded by the RBC and TD employment files that she was terminated from these roles because she suffered a substantial inability to perform the essential tasks of her employment as a result of impairments sustained from the accident.

10Following the receipt of the OCF-3 dated October 5, 2017, the respondent scheduled multidisciplinary insurer examination (“IE”) assessments to assess ongoing IRB entitlement. The multidisciplinary report dated February 5, 2018¹⁵ was completed by Dr. H. Khan, general practitioner, and Dr. A. Syed, neuropsychologist.

11Dr. H. Khan performed a clinical interview and a physical assessment of Ms. Sidiura and concluded she sustained soft tissue injuries as a result of the accident. From her pain symptoms, she demonstrated reduced range of motion in her back, neck, and shoulders. She was diagnosed with: Whiplash Associated Disorder II, Thoracic Spine strain/sprain, and Lumbar Spine strain/sprain. Dr. H. Khan noted she was working full-time at Loblaws prior to the accident as an Associate Merchant in which she was stationed at a desk and worked at a computer, except for a couple times per month she would carry a box of meat up one flight of stairs. Dr. H. Khan opined that her job was essentially sedentary in nature, primarily working at a desk. Dr. H. Khan concludes that her soft tissue injuries, reported pain symptoms and resulting reduced range of motion do not result in her suffering from a substantial inability to perform the essential tasks of her employment as a direct result of the accident. I note the documents reviewed by Dr. H. Khan do not include the CNRs of the family doctor, Dr. F. Khan. However, I found that the CNRs of Dr. F. Khan did not support that she suffered a substantial inability to perform the essential tasks of her pre-accident employment. I find Dr. H. Khan’s findings more closely align with the findings noted by Dr. F. Khan. I prefer Dr. H. Khan’s report over the chronic pain assessment report of Dr. Karmy as a result.

12Ms. Sidiura also underwent a psychological IE assessment by Dr. A. Syed. The assessment was based on a clinical interview and objective psychometric testing. Dr. Syed diagnosed her with Unspecified Adjustment Disorder, and that she is at risk for Major Depressive Disorder, and Post-traumatic Stress Disorder. Dr. Syed opined that the psychological conditions and their severity were consistent with the mechanism of the accident. She reported working as an Associate Merchant at Loblaws since February 2017 up until the time of the accident. The essential tasks of her employment as reported by Ms. Sidiura were noted as office duties, computer tasks/analyzing data, and administrative duties. She reported to Dr. Syed that if she were to return to a similar type of employment, the difficulties she would have include: sitting for prolonged periods of time, focusing, concentrating on a computer, and being distracted by her pain or how she is feeling. Dr. Syed concluded that the nature and severity of Ms. Sidiura’s psychological impairments do not result in her suffering from a substantial inability to perform her pre-accident employment tasks. I prefer Dr. Syed’s psychological IE report to Dr. Singh and Dr. Padda’s psychological report as Dr. Syed identified what the applicant’s essential pre-accident employment tasks were and provides an opinion which I find to be supported by the results/data from Dr. Syed’s assessment. I find Dr. Syed’s report persuasive that Ms. Sidiura does not suffer from a substantial inability to perform the essential tasks of her pre-accident employment.

13I find Ms. Sidiura does not suffer from a substantial inability to perform the essential tasks of her pre-accident employment. I have found the CNRs of the family doctor, Dr. F. Khan do not support entitlement to IRBs. I found the psychological report of Dr. Singh and Dr. Padda have little persuasive value in assisting with the determination of entitlement to IRBs as the report fails to identify the essential tasks of her pre-accident employment, and no opinion is provided as to whether she suffers from a substantially inability to perform her pre-accident employment tasks. I have addressed the reasons why I am not persuaded by Dr. Karmy’s report. I prefer the findings within the multidisciplinary IE report dated February 5, 2018 for the reasons I addressed above.

Is the applicant entitled to income replacement benefits 104 weeks post-accident?

14Section 6(2)(b) of the Schedule stipulates that an insurer is not required to pay for an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self employment for which he or she is reasonably suited by education, training or experience.

15I do not find the applicant is entitled to post 104 week IRBs because I find the applicant has not established she suffers a complete inability to engage in any employment or self employment for which he or she is reasonably suited by education, training or experience.

16Ms. Sidiura relies on the chronic pain assessment report of Dr. Karmy, dated August 27, 2020¹⁶. Dr. Karmy opines that the combination of her physical and psychological impairments resulting from the accident have resulted in her having a complete inability to engage in any employment or self employment for which he or she is reasonably suited by education, training or experience. Dr. Karmy notes she is unable to perform any physically demanding job duties as a result of the accident and that this has affected important bodily functions, cognitive abilities, and emotional status which would be essential for any employment. Dr. Karmy opined she would not be able to perform lighter jobs, usually more sophisticated in nature. He notes that seated jobs would require her to be seated and sustain focus for prolonged periods¹⁷. Dr. Karmy’s report contains limited information regarding her education. His report simply notes she has a university arts degree. His report identifies her pre-accident job with Loblaws and what the duties were as referenced through her self-reporting. He further based his conclusion on her inability to sustain employment at jobs with RBC and TD Bank in 2019 and 2020 and he notes her contracts were not renewed or she was laid off due to poor performance. This information was based on Ms. Sidiura’s self-reporting.

17I have already determined the applicant does not meet the test for entitlement to IRBs within 104 weeks of the accident. I am not persuaded by Dr. Karmy’s opinion that she meets the test for post-104 week IRBs as his report only notes one sentence regarding her education level attained. I find the basis of his conclusion that she meets the post-104 week test for entitlement to IRBs is based largely upon her self-reporting which I have found is not corroborated by the documentary evidence. As a result, I do not find Ms. Sidiura has met her burden of proof in establishing she meets the test for entitlement to post-104 week IRBs.

Is Ms. Sidiura entitled to a treatment plan in the amount of $2,004.96 for physiotherapy?

18I do not find Ms. Sidiura has established this treatment plan¹⁸ is reasonable and necessary for the following reasons. In part 6 of this treatment plan, her injuries and sequelae include: multiple superficial injuries to the neck, sprain/strain of cervical, thoracic, and lumbar spine, superficial injury of shoulder/upper arm, tension-type headaches, and post-traumatic stress disorder. The treatment plan further notes that these impairments prevent her from carrying out her pre-accident employment activities and her activities of normal life. Part 9 notes the following goals of the treatment plan: pain reduction, increased range of motion/strength, and a return to pre-accident work-activities and activities of normal living.

19Ms. Sidiura submits that pain relief is a reasonable and legitimate treatment goal and that this is consistent with the proposed treatment plan goals. She relies on the Ontario Superior Court decision, Cubello v. Guidolin¹⁹. I find this case distinguishable because one of the claimants Fulvio Cubello was employed as a landscaper, was in good physical shape, and suffered from ongoing pain. The other claimant, Mary Cubello was also in strong physical shape pre- and post-accident but suffered from ongoing pain. The claimants were entitled to receive benefits including massage therapy, chiropractic treatment, and gym memberships to assist with reducing their ongoing pain. In contrast, I find Ms. Sidiura had a sedentary job, and I am unable to determine based on the evidence before me if she was in strong physical shape prior to the accident. I am not persuaded by this decision. Ms. Sidiura also relies on 16-001031 v. Aviva Insurance Canada²⁰ in which a treatment plan for chiropractic treatment and assistive devices was found to be reasonable and necessary to reduce pain and increase range of motion. The applicant was only able to work in a modified capacity of 20-30 hours/week compared to 60 hours/week worked prior to the accident. The applicant also experienced a heart attack and second motor vehicle accident. I find the facts of that case distinguishable and as a result, I do not find it persuasive. Ms. Sidiura did not suffer a heart attack, nor a subsequent motor vehicle accident. Further, the evidence before me does not support that she requested modified job duties, or that they were recommended.

20I find the CNRs of the treating physiotherapist, Avni Parmar of Wanless Rehab and Wellness Centre²¹ persuasive that ongoing physiotherapy was not producing significant or lasting results. Avni Parmar completed this disputed treatment plan. The CNRs completed by Avni Parmar from February - April 2018 note Ms. Sidiura subjectively reported that she feels the same. I find this supports that Ms. Sidiura was not improving or deriving benefit from ongoing physiotherapy treatment 6 months post-accident when this treatment plan was submitted.

21I find the IE report of Dr. H. Khan, dated March 20, 2018²² persuasive as Dr. H. Khan found this treatment plan not reasonable and necessary because he determined Ms. Sidiura sustained soft tissue injuries which typically resolve in 9-12 weeks. He noted that psychological sequelae in her case may have delayed the resolution of symptoms but found no compelling indication for the proposed facility-based physiotherapy treatment. I find Dr. H. Khan’s finding aligns with the subjective reporting noted within Avni Parmar’s CNRs from February – April 2018 and generally supports Ms. Sidiura was not improving or deriving benefit from ongoing physiotherapy treatment.

22The March 1, 2018 CNR of the family physician, Dr. F. Khan, notes Ms. Sidiura is still going to physiotherapy. Further CNR entries dated April 5 and 12, 2018 note she is attending the gym and that Dr. F. Khan advises going to the gym and lifestyle changes. There are no recommendations for further physiotherapy treatment by Dr. F. Khan around the time this treatment plan was submitted. For all of the above reasons, I find the applicant has not met her onus in establishing this treatment plan is reasonable and necessary.

Is the applicant entitled to an award under Ontario Regulation 664?

23I do not find the applicant is entitled to an award under Ontario Regulation 664 because I have found no benefits are payable. Ms. Sidiura has not produced any particulars or evidence to support that the respondent has unreasonably withheld benefits or delayed payment.

24Ontario Regulation 664 provides that, if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

25The applicant submits that the respondent ignored the opinions of Ms. Sidiura’s treating physicians/psychologists, and treatment providers and unreasonably withheld or delayed the payment of benefits. The respondent submits Ms. Sidiura has not adduced any evidence that the respondent withheld or delayed any payment of benefits. Further, the respondent submits the applicant has not established that the conduct of the respondent is excessive, imprudent, stubborn, or inflexible. While the respondent denied the applicant entitlement to IRBs beyond March 6, 2018 and the disputed treatment plan, I do not find Ms. Sidiura has established this equates to the entitlement of an award as no evidence was led to support the conduct of the insurer rises to the level of an award.

Interest

26As no benefits are owed, no interest is payable.

CONCLUSION

27The applicant is not entitled to the following claimed benefits:

i. an income replacement benefit of $386.53 per week from March 6, 2018 to date and ongoing.

ii. $2,004.96 for physiotherapy recommended by Avni Parmar in a treatment plan (OCF-18) dated March 1, 2018.

iii. an award under Ontario Regulation 664.

iv. interest as no benefits are payable.

28The applicant’s claim is dismissed.

Released: July 14, 2021

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