Released Date: 10/12/2021
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:
James Jakob
Applicant
and
Aviva Insurance Canada
Respondent
AMENDED DECISION AND ORDER
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
James Jakob, Applicant
Neritan Ciraku, Counsel
For the Respondent:
Eric Grossman Fraser Chorley, Counsel
HEARD: In Person Via Teleconference:
August 18 and 19, 2020
OVERVIEW
1The applicant seeks entitlement to an income replacement benefit and an award pursuant to O.Reg. 664.
2The applicant was injured in a motor vehicle accident on July 26, 2017. He applied for and received an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 3, 2017 to February 1, 2018 from Aviva Insurance Canada (“respondent”) pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 20101 (“Schedule”). The IRB was then stopped based on the strength of various s. 44 insurer’s examinations which concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.
3The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution. The applicant is claiming an award as part of his application as he takes the position that the respondent unreasonably withheld payment of the IRB in dispute. The parties could not resolve the dispute, so the matter proceeded to a hearing.
ISSUES IN DISPUTE
4The following issues are in dispute:
I. Is the applicant entitled to receive an IRB in the amount of $400.00 per week from February 2, 2018 to date and ongoing?
II. Is the applicant entitled to interest on any overdue payment of benefits?
III. Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or denied payment of benefits?
RESULT
5Based on the evidence before me I find that the applicant is not entitled to an IRB from February 2, 2018 to date. As such, the applicant is not entitled to interest or an award.
INCOME REPLACEMENT BENEFIT
6Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his/her employment or self-employment. Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
7The applicant submits that he is entitled to an IRB from February 2, 2018 to date due to the impairments he sustained as a result of the accident. The applicant bears the onus of establishing on a balance of probabilities, that he is entitled to the IRB as claimed.
Entitlement During the First 104 weeks
8Prior to the accident, the applicant was in good physical health. He was employed as a construction labourer on a full-time basis. His job was physically demanding and required him to lift, bend, climb, walk and carry up to 70lbs on a sustained basis.
9The applicant was injured in a motor vehicle accident on July 26, 2017. He was travelling northbound at approximately 40km/hour when a vehicle exited a plaza parking lot just ahead of him. The vehicle attempted to make a left-hand turn and came to a sudden stop directly in the applicant’s path. The applicant struck this vehicle broadside and his airbags deployed striking him in the face. The applicant felt dazed but did not lose consciousness. He exited the vehicle independently and was taken to the Humber River Hospital (“Humber River”) by ambulance.
10The Humber River Emergency Record notes bruising around the applicant’s right eye, shoulder, elbow and wrist pain as well as neck pain and a sore right hip. Radiographs were taken of the applicant’s cervical spine, right shoulder, forearm, wrist and elbow. No fractures or abnormalities were seen, and the applicant was discharged home with what appears to be a whiplash diagnosis.
11Dr. Louis, chiropractor, completed a Disability Certificate (“OCF-3”) dated July 28, 2017, which noted the following accident-related injuries and sequelae: sprain and strain of the cervical spine, unspecified injury of the nerve root of the cervical spine, whiplash associated disorder (WAD2) with complaint of neck pain, pain in the thoracic spine, sprain and strain of the thoracic spine, low back pain, sprain and strain of the lumbar spine, sacroiliac joint, right shoulder joint, right shoulder girdle, right rotator cuff, right elbow and right wrist, headaches, unspecified injury to the head, contusion of the right ocular area, non-organic sleep disorder, nervousness, and stress. Dr. Louis indicated that the applicant was substantially unable to perform the essential tasks of his employment as a result of his accident-related injuries and that the applicant could not return to work on modified duties. Dr. Paton noted that the limitations were anticipated to persist for 9 to 12 weeks.
12The applicant saw his family doctor, Dr. Atto, on September 22, 2017. Dr. Atto’s clinical notes and records indicate that the applicant complained of right shoulder pain and that he began engaging in physiotherapy. Dr. Atto prescribed medication to help manage the applicant’s pain.
13The applicant followed up with his family doctor on a number of occasions. He continued to complain of right shoulder, right elbow and low back pain. He continued to attend physical therapy at a rate of approximately once per week. His physical therapy included massage therapy, chiropractic and physiotherapy treatment and exercise on site. The applicant was also given instructions with respect to home exercise which he did once or twice per week.
14The applicant was assessed by Dr. Martin, orthopaedic surgeon, on behalf of the respondent on January 10, 2018. During the assessment, the applicant complained of occasional headaches that occurred approximately one day per month. The applicant indicate that these headaches did not limit his activity. He also complained of continued pain in his neck, shoulder, arm and wrist.
15He indicated that he continues at a clinic where he sees several practitioners including a chiropractor, physiotherapist, massage therapist and others. He described receiving adjustments, massage, electric current, heat, stretches and some light resistance exercises. He indicated that his therapy is helpful and that he feels 75% improved and that is no longer taking prescription medication.
16Dr. Martin’s opined that the applicant sustained a soft tissue strain of the cervical spine of a grade WAD2 severity, strains of the right shoulder, elbow and wrist and a strain of the lower back. His clinical examination found little objective evidence of an ongoing impairment and did not see any objective clinical evidence of an impairment that would limit the applicant’s ability to perform any activity including his pre-accident employment.
17Dr. Koepfler conducted a psychological assessment on behalf of the respondent on January 10, 2018. Dr. Koepfler diagnosed the applicant with mild adjustment difficulties superimposed over chronic sleep deprivation with a newborn baby in the house. The applicant did not describe any psychological impairments that would affect his performance of work. Dr. Koepfler concluded that the applicant did not suffer a substantial inability to perform the essential task of his pre-accident employment.
18In this case I find that the applicant has not satisfied me, on a balance of probabilities, that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. The objective evidence before me suggests that the applicant suffered from uncomplicated soft tissue injuries. The resulting impairments appear to be minimal and do not interfere with the applicant’s ability to perform the essential tasks of his pre-accident employment. The only evidence submitted by the applicant that suggests that he meets the “pre 104 test” is the OCF-3 completed by Dr. Louis which indicated that the applicant’s limitations were anticipated to persist for 9 to 12 weeks. Nothing in the evidence before me has satisfied me that the applicant’s limitations persisted beyond this point.
19I also note that the applicant did not submit any reports that concluded that he met the “pre 104 test” and I have not been directed to any of the submitted clinical notes and records which address this issue.
20The applicant did submit a Chronic Pain Comprehensive Physician’s Assessment Report which was completed by Dr. Blitzer. The assessment took place on August 27, 2019, which is more than 2 years post accident. This report does not speak to the applicant’s limitations and impairments during the time period relevant to a pre 104 analysis. As a result, it does not assist me in determining whether the applicant meets the “pre 104 test”.
21I acknowledge the applicant’s testimony with respect to the pain he experiences when lifting and/or bending or after continuous sitting or standing for prolonged periods of time. However, the applicant’s self-reports of pain, when taken into context with the rest of the objective evidence before me, is not sufficient enough to persuade me on a balance of probabilities that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment. The reports of Dr. Martin and Dr. Koepfler, which concluded that the applicant has not met the “pre 104 test” further confirm my finding that the applicant is not entitled to a pre 104 IRB.
22Since I have found that the applicant is not entitled to a pre 104 IRB, it is not necessary to do a post 104 analysis. The applicant is also not entitled to interest or an award since I have found that no benefit is owing.
CONCLUSION
23For the reasons outlined above, I find that:
I. The applicant is not entitled to receive an IRB in the amount of $400.00 per week from February 2, 2018 to date and as a result is not entitled to interest or an award.
Released: October 12, 2021
__________________________
Paul Gosio
Adjudicator