Ababio v. TD Insurance Meloche Monnex, 2021 CanLII 97247

Citation: Ababio v. TD Insurance Meloche Monnex, 2021 ONLAT 20-001415/AABS

Release date: 10/07/2021

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:

Kelson Ababio

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Yanira Monterroza, Paralegal

For the Respondent: Andrez Belloso, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kelson Ababio ("applicant") was involved in an automobile accident on August 27, 2018 ("accident"), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2TD Insurance Meloche Monnex ("respondent") advised the applicant that income replacement benefits ("IRB") would stop March 12, 2019 as it had determined him ineligible for IRB but in error paid the applicant and later asked the applicant for repayment. The respondent also denied the applicant other benefits.

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for dispute resolution.

ISSUES

4The issues to be decided are:

i. Is the applicant entitled to IRB of $400.00 per week from September 4, 2018 to January 29, 2020, less amounts paid?

ii. Is the respondent entitled to a repayment of $1,619.99 for its payment of IRB benefits for the period of September 4, 2018 to April 1, 2019?

iii. Is the applicant entitled to $2,739.41 for psychological services recommended by Knead Wellness in a treatment plan (OCF-18) submitted to the respondent on October 21, 2019?

iv. Is the applicant entitled to the assessments recommended by Knead Wellness as follows:

a. $1,600.00 for an occupational therapy in-home assessment, in a plan submitted to the respondent on May 8, 2019?

b. $1,600.00 for a Functional Abilities Evaluation, in a plan submitted to the respondent on July 25, 2019?

c. $2,200.00 for a chronic pain assessment in a plan submitted to the respondent on August 26, 2019?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant is not entitled to IRB for the period claimed. The respondent is entitled to repayment from the applicant for IRB in the amount of $1,619.99 plus interest under subsection 52 (5). The applicant is not entitled to $2,739.41 for the disputed psychological treatment plan, $1,600.00 for the occupational therapy in-home assessment, $1,600.00 for the functional abilities evaluation, or $2,200.00 for the chronic pain assessment. No interest is payable to the applicant.

LAW

IRB

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.

Repayment of Benefits

10Section 52(1) of the Schedule provides that an insured is liable to repay benefits paid by an insurer as a result of error, wilful misrepresentation or fraud. Section 52(1)(a) of the Schedule provides that a person is liable to repay to the insurer any benefit paid as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud.

11Section 52(2)(a) provides that the insurer shall give person notice of the amount required to be repaid. Section 52(3) provides for a 12 month limitation unless the amount was originally paid as a result of wilful misrepresentation or fraud. Interest is provided for in s. 52(5).

12Section 53 permits an insurer to terminate the payment of benefits to or on behalf of an insured if the insured person has wilfully misrepresented material facts relating to the application for benefits provided notice is given which sets out the reason for termination.

13The onus is on the insurer to prove that the benefit was overpaid on a balance of probabilities.

Medical and Rehabilitation Benefits

14Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Is the Applicant Entitled to IRB of $400.00 per Week from September 4, 2018 to January 29, 2020, Less Amounts Paid?

15The applicant submits he stopped working at Citymark Construction & Drywall Ltd. ("Citymark") August 31, 2018 because of the injuries he sustained in the accident. The applicant submits that although the International Union of Painters and Allied Trades ("union") file shows payment for 219 hours post-accident in September, October and November, 2018, the applicant submits that he did not return to work after the accident and that these hours reflect "banked hours" for work performed pre-accident that Citymark owed him and paid to him once he had stopped working, a common practice of his employer with him and other employees. The applicant submits that he declared these hours to the union in September, October and November, 2018. The applicant received IRB until March 12, 2019 when the respondent determined him to be ineligible. Because the applicant returned to work with a new employer on January 29, 2020, he claims IRB from September 4, 2018 to January 29, 2020, less amounts paid, which is a period less than 104 weeks post-accident. The applicant relies on the August 29, 2018 OCF-3, disability certificate, by Vipul Delvadiya, applicant's physiotherapist, which indicates the applicant is substantially unable to perform the essential tasks of his employment and an anticipated duration of disability of nine to twelve weeks. The applicant also relies on the December 14, 2018 disability certificate by Robert Bilow, chiropractor, to the same effect.

16The applicant also disputes the quantum of IRB calculated by the respondent and submits that it should be $400.00 per week not $307.38, a difference of $92.62 per week for the period during which he received IRB, as well as the period prior to his return to work, which he quantifies as follows:

i. September 4, 2018 to March 12, 2019 (stoppage date) (27 weeks) x $92.62 per week = $2,500.74, and

ii. March 13, 2019 to January 28, 2020 (46 weeks) x $400.00 = $18,400.00 Total: $20,900.74

17The applicant also submits he had to obtain a loan because his IRB was stopped and owes some $5,859.81 to a creditor as of January 29, 2021.

18The respondent submits that the applicant continued to work for Citymark following the accident while collecting IRB and that he stopped working later because of a work shortage, not accident-related injuries. The respondent claimed repayment of $1,619.99 by letter dated September 5, 2019 because it paid IRB of $9,221.38 to the applicant between September 4, 2018 and March 19, 2019 when the payment should have been $7,601.39 according to it's report by Pricewaterhouse Coopers LLP.

19Regarding quantum, the respondent concedes that the proper quantum of benefits is $400.00 per week, less any earnings during those weeks.² However, the applicant's entitlement to IRB is in dispute before me.

What were the essential tasks of the applicant's employment?

20At the time of the accident, the applicant was an apprentice drywall finisher/plasterer sponsored by the Interior Finishing Systems Training Centre ("IFSTC") and employed by Citymark. Citymark's OCF-2 dated September 17, 2018 lists the applicant's job title as "taper" but contains no information at all under the heading "Essential Tasks of Job". The dates of employment shown are from August 2, 2018 to August 31, 2018.

21IFSTC's program material indicates that drywall finishers & plasters prepare drywall for painters by applying a compound over seams and screw heads and reinforcing by using a perforated or mesh compound, fabricate and install cornices and ornamental and prefabricated plaster moldings, apply special coatings and repair drywall blemishes. The applicant submits that this entailed heavy work such as heavy lifting, standing long periods of time, climbing stairs, ladders, pushing, pulling, kneeling, bending.

Does the applicant suffer a substantial inability to complete the essential employment tasks as a result of the accident?

22I find that the applicant is not eligible for IRB in the amount of $400.00 from September 4, 2018 to January 29, 2020, less amounts paid, based on a lack of medical evidence establishing he has substantial inability to complete the essential tasks of his pre-accident employment because of injuries caused by the accident.

23Although the applicant submits he did not return to work until January 28, 2020, the weight of the evidence indicates otherwise.

Citymark

24The records from the applicant's union establish that he worked 48 hours in September, 2018, 163.5 hours in October, 2018 and 7.5 hours in November, 2018 for a total of 219 hours in the first three months post-accident.

25I find unpersuasive the applicant's explanation that he did not return to work after the accident and that these hours reflect "banked hours" for work performed pre-accident that Citymark owed him and paid to him once he had stopped working, a common practice of his employer with him and other employees. The applicant submits that he declared these hours to the union in September, October and November, 2018. The applicant did not point to any evidence from either Citymark or the union to corroborate this. Given the lack of corroboration, I find this evidence to be not credible.

26The applicant's record of employment from Citymark shows his last day of work as November 5, 2018 for "shortage of work/end of contract or season".

27The applicant's application for employment insurance ("EI") filed May 9, 2020 indicates his last day at Citymark was November 23, 2020 due to "shortage of work".

28Further, I find that it is more likely than not the applicant worked at his pre-accident employment with Citymark until terminated November 5, 2018 for shortage of work/end of contract or season as shown on his record of employment which establishes that the applicant clearly did not suffer a substantial inability to complete the essential employment tasks as a result of the accident.

Knead Wellness

29The records from Knead Wellness on September 20, 2018 refer to back pain increases "after work."

Dr. Goldstein

30On August 28, 2018, the applicant saw Dr. Goldstein, his family physician, who diagnosed soft tissue injuries and prescribed hot showers, Advil and rehabilitation.

31It appears that the applicant was not truthful about his work status with Dr. Goldstein after the initial post-accident visit, based on the evidence. On September 13, 2018, Dr. Goldstein noted "drywall taper went back to work – couldn't tolerate heavy lifting, bending, etc and no modified duties apparently available." After this Dr. Goldstein appears to continue in the belief that the applicant is not working in the fall of 2018 when the applicant was working. After noting in October, 2018 that the applicant is "off work" and "lawyer working on income replacement – requests note indicating inability to work", Dr. Goldstein provided a note dated October 16, 2018 which simply states the applicant has been unable to attend work since August 28, 2018 as a result of the accident, specifically due to a low back injury and a neck injury (WADII) and that the applicant is "...currently unable to perform duties of drywall taper". Dr. Goldstein does not include any details of how the applicant suffers a substantial inability to complete his essential employment tasks as a result of the accident nor does he identify the essential employment tasks of the applicant.

32Dr. Goldstein provided a note dated October 10, 2018 which recommends physio sessions 2-3 times a week but qualifies his recommendation with "if clinically indicated and time available".

33Approximately one year post-accident, on September 27, 2019, Dr. Goldstein noted "no followup in this office since last entry October 16, 2018. No reports received from physiotherapy or any other health practitioners." On November 5, 2019, Dr. Goldstein notes that the applicant self-reported that he was "not working since accident in construction field", hasn't considered alternative jobs, in apprenticeship program – didn't want to jeopardise program. Didn't qualify for EI because he hadn't put in enough hours. Has been off since 8/18 with no plan for rtw!". Dr. Goldstein indicates that there were no further visits beyond November 5, 2019.

34Dr. Goldstein's records do not establish that the applicant has a substantial inability to complete the essential tasks of his pre-accident employment and are significantly undermined by the apparent lack of truthful self-reporting by the applicant to Dr. Goldstein and the lack of medical followup noted by Dr. Goldstein.

The applicant's physiotherapist and chiropractor

35The August 29, 2018 OCF-3, disability certificate, by Vipul Delvadiya, applicant's physiotherapist, which indicates the applicant is substantially unable to perform the essential tasks of his employment and an anticipated duration of disability of nine to twelve weeks and the December 14, 2019 disability certificate by Robert Bilow, applicant's chiropractor, to the same effect are insufficient to establish that the applicant has a substantial inability to complete the essential tasks of his pre-accident employment. Neither a physiotherapist nor a chiropractor is able to medically diagnose injuries. Neither disability certificate gives a sufficiently detailed explanation of why the applicant might be considered substantially unable to perform the essential tasks of his employment.

Inconsistencies within the applicant's evidence

36The finding that the applicant was working at his pre-accident occupation post-accident is consistent with the social media postings under the name "Kelz Kelz" filed by the respondent. These photographs show the applicant wearing construction site safety equipment at a construction site on October 12, 2018, June 27, 2019 and August, 2019, a period during which the applicant says he was unable to work. Although the applicant submits that these are old photos that he posted when reminiscing about his work days, there is no evidence to support this explanation or to establish that the dates of posting the photos on social media are different than the dates the photos were taken. I find this explanation unpersuasive.

37The fact that the applicant did not declare any income on his 2019 income tax return is not, in this particular case, persuasive evidence that the applicant was not working at that time in the context of this particular hearing. Absent audit or other investigation, the Canada Revenue taxation system depends on truthful reporting by individuals, something which the applicant appears not to have been doing to either Dr. Goldstein or the respondent with respect to his work status. The report of applicant's accountant, ADS Forensics Income Replacement Benefit Calculation Report dated January 7, 2019, does not establish the applicant's earnings because it is based on the assumption that the applicant has not worked post-accident,³ a fact which I have found to be untrue.

38Any physical and/or any psychological injuries the applicant may have sustained in the accident did not render the applicant substantially unable to complete the essential tasks of his pre-accident employment. The following medical evidence supports this conclusion.

The respondent's medical evidence

39Dr. Naaman, respondent's physiatrist, opined that aside from limited lumbar range of motion, the applicant's physical assessment was essentially normal and there were no objective findings of ongoing impairment as range of motion is a subjective measure.

40Dr. Lee, respondent's psychologist, concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Dr. Lee also noted that testing revealed some problems with validity measures.

41Dr. Bain, respondent's chiropractic assessor, concluded that the applicant's overall effort was inconsistent and unreliable, putting into question the validity of results.

42All of these assessments were conducted February 26, 2019, some four months after the applicant had been terminated by Citymark for shortage of work. I prefer the evidence of the respondent's assessors because their conclusions were substantially consistent with each other and each brought their specialized training and expertise to the assessment of the applicant's entitlement to IRB. Although the applicant submits that Dr. Naaman did not have the benefit of seeing Dr. Goldstein's records, the helpfulness of Dr. Goldstein's records is seriously undermined by the applicant's apparent lack of truthfulness about his work status and the lack of followup which Dr. Goldstein noted. I find that this does not significantly affect Dr. Naaman's opinion.

Conclusion about the applicant's entitlement to IRB

43In totality, the weight of the medical evidence fails to establish that the applicant meets the eligibility test for IRB. Even if there may be some tasks of his employment that the applicant might not be able to return to as a result of the accident, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. The onus of proof is on the applicant and I find that he has failed to meet it.

44Lastly, although the applicant submits he had to obtain a loan because his IRB was stopped and currently owes some $5,859.81 to his creditor as of January 29, 2021, I find this is not relevant to the issue of the applicant's entitlement, or lack of entitlement, to IRB under the Schedule.

Is the Respondent Entitled to Repayment of $1,619.99 for an overpayment of IRB for September 4, 2018 to April 1, 2019?

45The applicant submits that repayment is not warranted. The applicant submits that he returned to work on January 28, 2020 and not before.

46After considering all of the evidence, submissions and cases put forward by both parties, I find that the respondent has met its burden to prove on a balance of probabilities that it overpaid IRB to the applicant in the amount of $1,619.99 in error as a result of the applicant's wilful misrepresentation of his return to work status. The following are my reasons.

47There is no evidence before me that the applicant communicated to the respondent or through his legal representative that he had returned to work in September, 2018, approximately one month post-accident. To the contrary, the applicant maintained his position that he did not work post-accident throughout this hearing, a fact which I have found to be untrue.

48Further, the applicant continued to accept weekly IRB payments post-accident until the respondent stopped the payments, even though he was working post-accident.

49The applicant had a clear duty to advise the respondent that he had returned to work and made no attempt to do so at any time and continued to give the impression he was not working.

50The Tribunal has stated before that misrepresentation is "any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts" or a silence or failure to report facts.⁴ I agree with that description.

51I find that the applicant wilfully misrepresented his work status while continuing to collect IRB even though no longer eligible under ss. 5 and 37(2)(e) of the Schedule. Here, I find that by failing to advise the respondent that he had returned to work approximately one month post-accident and by putting forward misleading and misrepresentative documentation indicating he had not returned to work, the applicant misrepresented his true work status to the respondent.

52I also find that the respondent gave the required s. 52(2)(a) notice by correspondence dated April 1, 2019 requesting repayment of $878.23, even though the quantum of the repayment sought increased later as more information became available to the respondent. A second notice by correspondence dated September 5, 2019 corrected the quantum of the requested repayment to $1,619.99. Section 52(3) provides that if the notice is not given within 12 months after payment of the amount sought to be repaid, the person to whom notice would have been given ceases to be liable unless it was originally paid to the person as a result of a wilful misrepresentation or fraud. I have already found that the respondent paid the applicant because he wilfully misrepresented his work status while continuing to collect IRB. The exception in s. 52(3) applies here. As a result, I find that the applicant is liable to repay to the respondent $1,619.99 for the period September 4, 2018 to April 1, 2019 plus interest pursuant to s. 52(5).

Is the Applicant Entitled to $2,739.41 for Psychological Services?

53The applicant submits that this psychological service and the assessments are reasonable and necessary. The respondent's position is the opposite.

54I find on the evidence before me that this disputed treatment plan is not reasonable and necessary. This treatment plan proposes a third round of treatment comprised of eight psychotherapy sessions with the stated goals of pain reduction and return to pre-accident level of psychological functioning.

55This treatment is not supported by the records of Dr. Goldstein who noted some self-reported anxiety and other psychological issues but did not refer the applicant to any mental health specialist for assessment or treatment. This treatment is also not supported by the report of Dr. Lee who noted that testing revealed some problems with validity measures in February, 2019. There is insufficient medical evidence put forward by the applicant to support that this proposed treatment is reasonable and necessary more than 14 months post-accident.

56As a result, I find the goals, treatment proposed and cost of this disputed treatment plan are not reasonable and necessary.

Is the Applicant Entitled to $1,600.00 for Occupational Therapy Assessment, $1,600.00 for Functional Abilities Evaluation, $2,200.00 for Chronic Pain Assessment?

57I find on the evidence before me that these disputed treatment plans are not reasonable and necessary.

58The disability certificates submitted by the applicant are not persuasive evidence of the need for any of these three treatment plans because their authors are not qualified to medically diagnose injuries. Although Dr. Goldstein has recommended physiotherapy and other physical therapies in his note dated August 28, 2018, Dr. Goldstein qualified his recommendation in his note dated October 10, 2018 by stating "if clinically indicated and time available". This is not an unqualified endorsement of any of these proposed treatment plans. Further, despite noting some tenderness and pain self-reported to him by the applicant, Dr. Goldstein gives no indication that any of these three proposed assessments are reasonable and necessary. Although Dr. Goldstein notes that the applicant has been unable to work, I have already found this to be untrue so Dr. Goldstein's records are undermined by the applicant's lack of truthfulness to him.

59I prefer the evidence of Dr. Naaman who is familiar with the applicant from his in-person examination of the applicant regarding IRB. Dr. Naaman found that the chronic pain assessment was not reasonable and necessary on September 17, 2019. Dr. Naaman found that the functional abilities evaluation is not reasonable and necessary on August 27, 2019. Dr. Naaman found the occupational therapy assessment (for attendant care) was not reasonable and necessary on June 19, 2019.

60Even though the treatment plan for proposed chronic pain assessment is made by Dr. Wilderman, a physician, and proposes a total body examination of the applicant, there is insufficient support in Dr. Goldstein's records showing that this is reasonable and necessary. Dr. Goldstein did not refer the applicant to any specialist for assessment or treatment as proposed in these treatment plans.

61There is insufficient medical evidence put forward by the applicant to support that these proposed treatment plans are reasonable and necessary. As a result, I find the goals and treatment proposed not to be reasonable and necessary and as a result, incurring the cost of these disputed treatment plans not reasonable and necessary.

Interest

62As no benefits are payable, no interest is payable.

ORDER

63For the above reasons, I find that the applicant is not entitled to IRB for the period claimed. The respondent is entitled to repayment from the applicant for IRB in the amount of $1,619.99 plus interest under subsection 52 (5). The applicant is not entitled to $2,739.41 for the disputed psychological treatment plan, $1,600.00 for the occupational therapy in-home assessment, $1,600.00 for the functional abilities evaluation, or $2,200.00 for the chronic pain assessment. No interest is payable to the applicant.

Footnotes

1. 1O.Reg. 34/10
2. 2Written Submissions of the Respondent, dated January 22, 2021, para 54.
3. 3ADS Forensics Income Replacement Benefit Calculation Report, dated January 7, 2019, para 1.3.
4. 4For example: Aviva General Insurance Company v. Muthusamythevar, 2020 CanLII 94791 (ON LAT).