Citation: James v. Aviva General Insurance, 2022 ONLAT 20-008130/AABS

Licence Appeal Tribunal File Number: 20-008130/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Jason James

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake, Vice Chair

APPEARANCES:

For the Applicant:

Nivedita Misra, Counsel

For the Respondent:

Candace Mak, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Jason James, was injured in an automobile accident on May 30, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva General Insurance, the respondent.

2The respondent terminated the applicant’s income replacement benefits (IRBs) effective October 28, 2017. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on November 16, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is the applicant entitled to IRBs of $147.87 per week from October 29, 2017 to May 30, 2019?

(ii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is not entitled to IRBs from October 29, 2017 to May 30, 2019, no interest is payable, and this application is dismissed.

ANALYSIS

Income Replacement Benefits (IRBs)

6The applicant is seeking IRBs for the period of within 104-weeks of the accident. The test for eligibility to receive IRBs during this period is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104-weeks after the accident.

7I find that the applicant has failed to prove on a balance of probabilities that he is entitled to IRBs for the period from October 29, 2017 to May 30, 2019 for the following reasons:

(i) At the time of the accident, the applicant worked as a plumber apprentice with Vitullo Plumbing.³ I am unable to engage in the first step of the analysis to determine if the applicant is entitled to IRBs during the 104-weeks post-accident period, however, because I have no evidence before me of what the essential tasks of the applicant’s work as a plumber apprentice were. The applicant submitted that as a plumber, he was required to undertake plumbing repair, which involved manual running and cutting of pipes, and the maneuvering of his body into awkward positions but his submissions are not evidence;

(ii) Even if I had this information before me or accepted the applicant’s submissions, which I do not, the applicant failed to submit any contemporaneous compelling evidence to support a finding that he was substantially unable to perform the work of a plumber apprentice during the period in dispute. For example, the applicant relied upon a November 23, 2017 clinic note by Dr. Mark Bryer, neurologist,⁴ which found a negative neurological functional inquiry as well as a normal clinical and electrophysiological study. The applicant also submitted clinical notes and records (CNRs) of Dr. Andrew Korda, the applicant’s family physician, from September 1, 2017 to August 28, 2018.⁵ The only entry dated during the period is dispute, however, is from December 6, 2017 at which time Dr. Korda prescribed physiotherapy to the applicant. Dr. Korda made no remarks about the applicant’s employment in this CNR entry;

(iii) The applicant also submitted CNRs from Dr. Badwal, a subsequent family physician, and alleged that the respondent failed to re-evaluate its position regarding his entitlement to IRBs based on these CNRs. Dr. Badwal’s CNRs, however, begin on January 29, 2020 and are dated well outside the period of dispute. Therefore, I find they are of little weight in determining the applicant’s function and abilities during the period for which he is claiming IRBs;

(iv) The respondent submitted a July 11, 2018 s. 44 Physician Examination Assessment Report by Dr. L. Todd Walters, family physician.⁶ In his report, Dr. Walters found that there were no essential tasks of the applicant’s pre-accident employment as a plumber that he would be restricted from despite providing no information on the essential tasks of the applicant’s pre-accident employment.⁷ This deficiency of Dr. Walter’s report was highlighted by the applicant in his submissions, but the burden never shifts to the respondent to disprove the applicant’s entitlement to IRBs; and

(v) It is undisputed that the applicant returned to work post-accident.⁸ The only evidence before me of the applicant’s absence from work during the period in dispute is found in a November 10, 2017 letter from an unknown author of Vitullo Bros. Plumbing Co.⁹ This letter stated that the applicant was absent from work on October 30 and 31, 2017. While it is not altogether clear as to the reason for the applicant’s absences on these dates, at most the letter only shows that the applicant missed two days of work during the period in dispute and does not assist me in determining his entitlement to IRBs.

Interest

8As there are no benefits owing, no interest is payable.

CONCLUSION

9For the reasons outlined above, I find that the applicant is not entitled to IRBs from October 29, 2017 to May 30, 2019, no interest is payable, and this application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2In his written submissions, the applicant withdrew issues 1 and 3 as set out in the Tribunal’s November 16, 2020 Case Conference Report and Order.
3. 3August 1, 2017 Employer’s Confirmation Form (OCF-2), Submissions of the Applicant, tab 6.
4. 4Submissions of the Applicant, tab 3.
5. 5Ibid.
6. 6Written Submissions of the Respondent, tab 2.
7. 7Ibid. at page 6.
8. 8Submissions of the Applicant, para. 11.
9. 9Submissions of the Applicant, tab 7.