Release date: 09/15/2021
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:
Jason Foster
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Nathan Ferguson
APPEARANCES:
For the Applicant:
Jason Foster, Applicant
Josh Lang, Counsel
Nicolas Canizares, Counsel
For the Respondent:
Jason Brumwell, Claims Representative
Danielle Ralph, Counsel
J.C. Rioux, Counsel
Violet Levin, Student-at-Law
Court Reporter:
Queenie Tsui
Heard by Videoconference:
June 7, 8, 9 and 10, 2021
OVERVIEW
1The applicant (“JF”) was involved in an automobile accident on May 8, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). JF requested Income Replacement Benefits (“IRBs”) and chiropractic treatment, and this was denied by the respondent (“Aviva”). JF submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.
2For the reasons that follow, I find that JF is entitled to IRBs up to 104 weeks after the accident. However, I find that he is not entitled to the chiropractic treatment plan sought. I also did not find the circumstances sufficient to entitle JF to an award, which was also claimed in his application.
PRELIMINARY ISSUES
3JF requested a removal from the Minor Injury Guideline (“MIG”) in his application and the parties agreed at the beginning of this hearing that, because he was previously removed from the MIG, this issue ought not to be considered by the Tribunal.
ISSUES
4The issues to be determined are:
i. Is JF entitled to a medical benefit in the amount of $2,974.44 for chiropractic services recommended by Activa Brampton in a treatment plan (OCF-18) submitted on September 17, 2019?
ii. Is JF entitled to IRBs in the amount of $400.00 per week from April 14, 2020 to date and ongoing?
iii. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to JF?
iv. Is JF entitled to interest on any overdue payment of benefits?
v. Is the CRB/CERB deductible from entitlement to IRBs?
ANALYSIS
Is JF Entitled to the Chiropractic Services Treatment Plan (Issue i)?
5JF did not lead any direct evidence relating to the chiropractic treatment in dispute. Aviva argued in closing submissions that JF bears the onus to show a treatment plan is reasonable and necessary and did not do so as the treatment plan was not discussed in the hearing. I agree and find on a balance of probabilities that the chiropractic treatment plan was not reasonable and necessary in this instance.
6The treatment plan alone is not sufficient to demonstrate the treatment proposed is reasonable and necessary. JF testified, and surveillance details confirmed, that he was able to walk, stand, sit, push a cart, independently function with respect to attending appointments and self-care, and to attend the gym for physical rehabilitation as necessary.
7Dr. Walters, an expert general practitioner for the purposes of the hearing, testified that JF was assessed on January 23, 2020 and despite some physical limits would not benefit from further chiropractic intervention. This is consistent with the February 3, 2020 report authored by Dr. Walters.
8There was no indication on any examination or assessment before me that the chiropractic treatment proposed would result in any significant functional gain or cause a lasting improvement in any symptom of JF’s impairments beyond that which was already achieved. Indeed, JF’s evidence (both oral and documentary) emphasized that his limitations are truly a result of a concussion and not any other physical impediment attributable to the accident. The chiropractic treatment does not propose to address any lingering issues directly attributable to his concussion.
Is JF Entitled to Income Replacement Benefits (Issue ii)?
9In order to qualify for IRBs, JF must show that he suffered a substantial inability to perform the essential tasks of his employment. This test applies for the first 2 years (104 weeks) following the accident.
10After that time, to continue to qualify JF must demonstrate that that he has a complete inability to engage in any employment for which he was reasonably suited by education, training, or experience.
Nature of JF’s Employment
JF’s Entitlement to IRBs for the First 104 Weeks (May 8, 2019 to May 8, 2021):
11JF relies on his concussion and concussion-related symptoms in support of the assertion that he is substantially incapable of performing the essential tasks of his employment. The parties generally agreed that the nature of his employment was physically strenuous labour, largely performed at heights. He was a drywall taper and plasterer who did work at some residential, but primarily commercial, properties. He was a self-employed sub-contractor. This was a position he held for several years and had the benefit of a family member’s influence in acquiring and retaining the position.
12After his accident, there is no dispute that he continued in this employment, at a part-time and modified level, until April 14, 2020. As of April 14, 2020, JF stopped working. There is no dispute regarding IRBs before April 14, 2020. Dr. Akladios is a general practitioner and first saw JF on May 9, 2020, one day after the accident. On February 11, 2020 Dr. Akladios indicated: “Patient feels he is ready to try going back to work on light duties”.
13Aviva asserts that JF stopped working because of the global Covid-19 pandemic and directed me to JF’s undisputed receipt of Canada Emergency Response Benefit (“CRB/CERB”), a benefit only available in case an individual is not able to retain employment because of the pandemic. JF argues that he was unable to continue working as a result of his concussion and that the CRB/CERB is simply the benefit available to mitigate his loss of employment. Aviva argues that JF either lost his employment because of the pandemic, and not because of the accident, or was untruthful in his application for CRB/CERB and is therefore untrustworthy as a witness.
14I do not agree with Aviva’s characterization in this instance. There is no dispute that JF did not return to full-time hours following the accident, or to his full capacity in his employment. JF testified that he was unable to work at height, unable to carry heavy objects, and required assistance in many of his routine tasks following the accident, as a result of the concussion he attributes to the accident. Aviva did not provide any other evidence or account of his working situation. Therefore, I find that JF’s return to work was limited and that he was limited in his stamina, strength, and overall capacity to complete tasks. JF testified that his employer no longer offered modified duties after the pandemic as his work was compromised.
15Aviva requested that I make an adverse inference regarding the content of the CRB/CERB application as JF failed to disclose this document. I find that JF must have asserted in the CRB/CERB application(s) that his loss of employment was because of the pandemic – this is the undisputed basis for entitlement to those benefits.
16While it is true that the CRB/CERB is available only to individuals that lost employment due to the pandemic, I do not consider this mutually exclusive of JF’s accident-related symptoms.
17I find that JF’s account, that he was not able to work at his previous ability level and was on modified duties, is supported by his decreased income and all evidence surrounding the hours he worked after the accident. I further find that his description of being unable to continue in his modified duties after the onset of the pandemic persuasive.
18That is, his employer (a particularly accommodating and supportive employer as a result of familial connections) was willing to provide the applicant with modified duties until the onset of the pandemic. At that point, the employer no longer offered such employment. His employer simply stopped offering this type of employment, and as he had no familial contacts or direct history with any alternate employer in his field, he was not able to secure an alternate and similar position.
19Dr. Gooden’s December 29, 2020 Psychology Examination confirmed that JF reported light duty was not available at the time, as did Dr. Kaufman in the November 20, 2020 report which indicated work was less available to the applicant because of the pandemic. In addition, Dr. Gooden confirmed JF’s report of a lack of sleep and headaches along with other pain.
20This is also consistent with his reporting to his family physician at that time. Dr. Akladios’ April 20, 2020 note states: “laid off work now as they cannot modify his duties due to limited work at this point”. Again, on April 30, 2020 Dr. Akladios wrote that JF was “unable to return to regular duties… would benefit from being off work for now… workplace not able to accommodate his modified duties…”
21Aviva argues that JF’s workplace limitations are not the result of the accident, but related to other injuries, specifically a hernia. While there are specific references to limitations attributable to an unrelated hernia (see June 9, 2020 note for example), this appears to be a specific factor considered by Dr. Akladios at the time and not an exhaustive list of complications. In fact, Dr. Akladios confirmed in his testimony that there were reasons beyond a hernia that kept JF from returning to work. JF also had surgery to remove the hernia in August of 2020 and had a mass removed from his neck in September 2020. I agree with Aviva that these medical concerns likely impacted his function as well, but I do not find that this negates the impact of his concussion or brain trauma.
22I find on a balance of probabilities that JF suffered a substantial inability to perform his workplace duties after the accident, but he remained employed because his employer was accommodating and tolerant of his limited capacity. After the pandemic, likely anticipating economic pressures, his employer was no longer able or willing to accommodate JF. This is an unusual situation in that JF’s substantial inability to perform his duties preceded his unemployment by a significant time period.
Was there a Concussion?
23Aviva also argued that JF could not be limited because of his concussion as he did not experience a concussion related to this accident. There were no clinical notes and records prepared concomitantly with the date of the accident to show that JF struck his head or lost consciousness.
24Indeed, Aviva requested a specific finding as to whether JF lost consciousness or struck his head in this accident. However, this is not an issue in dispute. I am not able, or qualified to, make a diagnostic finding in my capacity as a Tribunal Member.
25Dr. Akladios, saw JF very close to the date of the accident (May 9, 2020) and indicated there was no loss of consciousness, although he had fogginess and photophobia. Dr. Akladios also testified at this hearing that JF was foggy on examination but that he was not referred for further investigation until June 22, 2020 because the focus of his complaints were neck and back pain, so the focus of treatment was also on this pain. I am able to find that the totality of the evidence surrounding the accident supports the notion that JF was jostled and experienced soft-tissue injuries.
26The clinical notes and records prepared at the date of the accident indicate that JF denied losing consciousness or striking his head. In his testimony at this hearing and in his account to various treatment providers, JF recalls now striking his head and presumes he lost consciousness at least briefly. On the other hand, JF also acknowledges that his recall of the accident is muddled and the medical professionals that have assessed him since confirm a level of fogginess or confusion which most attribute to a concussion.
27Regarding headaches, Dr. Akladios acknowledged his treatment regarding headache initially focused on cervicogenic headaches which are different from those related to any concussion. At the same time, Dr. Akladios explained that it was difficult to say what caused his symptoms and considered it entirely possible that his neck and head pain were related to an underlying concussion which was not known at the time. In September and October of 2020, Dr. Akladios’ notes indicate JF was experiencing headaches and was prescribed Amitriptyline for this which gave him some improvement. Dr. Akladios acknowledged his headaches might have been related to uncontrolled hypertension which existed before the accident but could not say with any certainty. That is, the source of JF’s headache is not clear or helpful in determining the nature of his accident-related impairments.
28Given Dr. Akladios evidence that JF’s confusion is entirely consistent with the presence of a concussion, I did not find his credibility compromised by his limited and sometimes contradictory recollection. However, I also did not find his current direct account of the accident persuasive or reliable. That is, while I do not consider JF untruthful as his presentation appears generally in keeping with the diagnosis of the medical professionals, I was also not able to rely solely on his account, as it is not clear or consistent.
29It is not clear whether JF hit his head or not in the accident, but a head impact is not essential in order for JF to have experienced a concussion. I find the balance of medical evidence supports that he did experience a concussion regardless of any direct impact to his head.
30The medical professionals that testified at this hearing consistently indicated that the SPECT scan performed by Dr. Mehdiratta is generally reliable and demonstrates that in JF’s instance he did experience a concussion. The medical professionals also agreed that it is not necessary to strike one’s head or lose consciousness to be concussed. This can be the result of a shake to the head causing bruising or trauma internally in the brain. The experts agreed that JF’s scan results are consistent with such a trauma internally.
31Dr. Mehdiratta conducted the SPECT scan relied upon by JF during an assessment on November 3, 2020. It is a type of scan used to valuated cerebral vascular disease – or blood flow abnormalities. Dr. Mehdiratta concluded that JF’s scan was in keeping with a mild traumatic brain injury, or concussion and confirmed the findings on this scan were not compatible with hypertension. Dr. Mehdiratta also considered JF’s presentation largely in keeping with a concussion and his report of difficulty in heavy work and especially work at heights in keeping with the symptoms typical of concussion (including blurry vision, fogginess or a sort of cloud mentally and persistent headaches).
32Dr. John is a neurologist accepted as an expert at this hearing and assessed JF in October 2020. Dr. John testified that JF did report neck and back pain, headaches, photosensitivity and a light-headedness or dizziness, intermittent memory difficulty and a lack of sleep. Although she did not observe any obvious concussion-related symptoms, she noted that this is not the sort of thing that would be observed in her assessment typically, although JF did need to call his spouse to ask for some information after forgetting what he wanted to say.
33However, while noting it was strange not to have a report of concussion-related symptoms for a period of several months Dr. John also testified that it may well be that an individual was simply bothered more by some other symptom(s) and therefore focused on other problems.
34Dr. John also conducted paper reviews on December 30, 2020 and April 29, 2021 following the submission of additional treatment plans. In her testing, Dr. John did not observe obvious symptoms that would preclude employment, but having now reviewed the SPECT scan, Dr. John testified that JF “most probably” experienced a concussion and that he “definitely” has headache that is impairing him. Pressed for a numeric probability on cross-examination Dr. John agreed that the likelihood of concussion at some point is in the 99th percentile.
35The clinical notes and records regarding JF’s medical status before the accident do not refer to or suggest any concussion or similar symptoms.
36Therefore, I find on a balance of probabilities that JF did experience a trauma to his brain and find no other explanation for the trauma than the accident in question. The accident is the most likely source of JF’s concussion symptoms on a balance of probabilities.
Did JF Experience Symptoms Related to His Concussion Between July 2019 and July 2020?
37Aviva argued that there are no medical records relating to the concussion symptoms experienced by JF between July 2019 and July 2020 and as a result JF experienced no such symptoms. JF argued that he did experience these symptoms but did not always think to report the symptoms to treating professionals. I find that the balance of evidence available in this instance suggests that JF did experience some level of symptom despite the absence of specific notations in the medical records.
38Dr. Mehdiratta testified that JF likely experienced some level of symptom which may have fluctuated in severity at any point. Dr. John did not contest that this is a possibility and confirmed he might not have reported these symptoms simply because of a focus on other more pressing matters (such as his hernia and more immediate neck and back pain). All the available assessments and reports demonstrate that JF was limited at least to a degree, and some of this is likely attributable to his concussion given the presence of ongoing headache and neck pain which Dr. Mehdiratta and Dr. John agree are often related to concussion.
39Dr. Gooden, a clinical psychologist who assessed JF on December 11, 2020, was unable to make a diagnosis or determination as JF’s rumination and pain focus exceeded the acceptable norms. There was a possibility of malingering or feigning. Dr. Gooden was not able to comment on any explanation for this and did not suggest there was no underlying diagnosis present, simply that the results of testing were not reliable in this instance. Although this evidence gives me some pause, I find that it is not persuasive enough considering the remainder of the evidence to detract significantly from JF’s position. That is, he was consistently foggy, and limited in his ability to do physically strenuous work, the sort at which he was employed for several years before the accident.
40In light of the foregoing, I find on a balance of probabilities that JF suffered a concussion, his concussions rendered him substantially unable to perform the essential tasks of his employment and that he is therefore entitled to IRBs for the period April 14, 2020 to May 8, 2021. It follows that he is entitled to interest on the IRBs for this period.
Post 104 Week Entitlement:
41JF did not lead evidence regarding his ability to perform any form of employment other than that described above. That is, there is no evidence available to me that he is completely incapable of engaging in any employment for which he was reasonably suited by education, training, or experience. In fact, he testified that he previously worked in a couple of unspecified “warehouse” settings and no evidence was led to describe the nature of this work or his ability to return to the same. Thus, I find the evidence is insufficient to determine he is completely incapable of any form of employment for which he is reasonably suited. Therefore, his entitlement to IRBs must be confined to the 104-week period, or May 8, 2021.
Is Aviva Liable to Pay an Award (Issue iii)?
42To be entitled to an award, JF must show that Aviva unreasonably withheld or delayed a payment to which he was entitled. JF did not do so in this instance.
43While a portion of Aviva’s decision is reversed as a result of this hearing, that decision does not appear to me unreasonable or intended to delay or withhold a benefit to which JF was entitled.
44I find that the dispute as to the presence of JF’s concussion and whether his employment was impacted by the same was reasonable in light of the gaps in the notes and records provided regarding symptomatology. There was also understandable confusion or hesitation on the insurer’s part in light of JF’s receipt of CRB/CERB which is on its face a benefit related to the pandemic and not this accident. This is also reasonable in light of the assessment reports obtained and considered by Aviva. Specifically, Dr. John’s assessment which concluded that the applicant was likely capable, from a neurological perspective, of his pre-accident employment. In addition Dr. Walters concluded (February 3, 2020 report) that JF was not physically precluded from his pre-accident employment. It was not therefore unreasonable to conclude that he was not entitled to IRBs for the period in question, although I note that neither Dr. John nor Dr. Walters was, at the time of assessment, considering the impact of concussion.
45I find no reason to conclude that the decision made was not subject to ongoing assessment and consideration by Aviva over time. A difference in opinion (even where it is eventually altered by the Tribunal’s order) is not in isolation unreasonable conduct.
46Therefore, I am not satisfied that this is an appropriate instance in which to order an award against the respondent on a balance of probabilities. I find that the behaviour demonstrated by the respondent in this instance does not warrant an award.
Is JF Entitled to Interest on any Overdue Payment (Issue iv)?
47Because JF was entitled to IRBs from April 14, 2020 to May 8, 2021, he is also entitled to interest on the overdue benefits owed during that period. JF is not entitled to interest on the balance of benefits in dispute as they are not payable and therefore are not overdue.
Is CRB/CERB Deductible (Issue v)?
48The parties requested a determination of whether the CRB/CERB received by JF is deductible from IRBs. No case law or significant argument was presented. Aviva intended to reduce any entitlement to benefits by some portion as a result of JF’s receipt of these benefits. JF requested that no such reduction be ordered.
49The CERB provides temporary income support to employed and self-employed individuals who were directly affected by COVID-19. If eligible, an individual can receive $2,000.00 for a four-week period ($500.00 a week). The CERB is taxable.
50Pursuant to subsection 4(1) of the Schedule, “gross employment income” means salary, wages and other remuneration from employment, including fees and other remuneration for holding office, and any benefits received under the Employment Insurance Act (Canada), but excludes any retiring allowance within the meaning of the Income Tax Act (Canada) and severance pay that may be received.
51Section 7(3)(a) of the Schedule, allows the insurer to deduct from the amount of an income replacement benefit payable to an insured person, (a) 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit.
52I find that CERB is tantamount to other remuneration from employment, and therefore deductible. Although not exactly the same, it is essentially akin to Employment Insurance (“EI”) benefits in the context of the Schedule.
53I am aware of a case regarding damages for wrongful dismissal which is somewhat on point.1 In that instance, the Court held that the CERB was not deductible from damages for wrongful dismissal as it “cannot be considered in precisely the same light as [EI] benefits when it comes to calculating damages for wrongful dismissal”. I find this distinguishable from the CERBs treatment in the context of IRBs or the broader Schedule.
54There is no component of IRBs which is designed to approximate damages. This is not a punitive or deterrent remedy, but a benefit to which an applicant is entitled by virtue of paying insurance premiums. IRBs are intended to minimize the impact of a loss of income caused by an accident. To the extent that an individual continues to receive income, IRBs are not applicable or necessary.
55The CERB, much like EI benefits, provides a bridge to individuals out of work. The real difference between the CERB and EI benefits is that the CERB is not paid into. I find that this difference does not take it out of treatment as other remuneration from employment. Therefore, I would treat JF’s receipt of CRB/CERB in the same manner as EI benefits or “other remuneration from employment”.
ORDER
56JF is entitled to IRBs in the amount of $400.00 per week (less the CRB/CERB) from April 14, 2020 until May 8, 2021 and to interest on this benefit.
57JF is not entitled to the chiropractic treatment plan, award or IRBs after the 104-week period or to interest on these disputed issues.
Released: September 15, 2021
Nathan Ferguson, Adjudicator
Footnotes
- Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, at paras. 20-21.