Citation: K.Y v. Aviva Insurance Company, 2022 ONLAT 19-001720/AABS

Released Date: 01/07/2022

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:

[K.Y]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

[K.Y] Yoni Silberman, Counsel Shanil Patel, Counsel

For the Respondent:

Almeda Lucas, Litigation Specialist Jean-Claude Rioux, Counsel Violet Levin, Articling Student

Court Reporters:

Marisa Kwan (March 22 and 24, 2021) Michelle Beck (March 23, 25 and 26, 2021)

HEARD:

March 22-26, 2021 and April 1, 2021 by way of Videoconference

BACKGROUND

1The applicant, [K.Y], was injured in an automobile accident on November 1, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from the respondent, Aviva Insurance Company.

2The respondent terminated the applicant’s weekly income replacement benefits (IRBs) effective July 16, 2019. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on July 30, 2019 and the matter was scheduled for an in-person hearing on March 30, 31 and April 1-3, 2020. The hearing was subsequently adjourned twice and ultimately proceeded by way of videoconference on March 22-26 and April 1, 2021.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to receive IRBs in the amount of $400.00 per week for the period of July 17, 2019 to date and ongoing?

(ii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5I find that the applicant is entitled to IRBs in the amount of $400.00 per week from July 17, 2019 to date and ongoing plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to an award.

ANALYSIS

Income Replacement Benefits (IRBs)

6The applicant is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.

7For the reasons that follow, I find that the applicant is entitled to IRBs from July 17, 2019 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (July 17, 2019 to November 1, 2019)

8The test for eligibility to receive IRBs within 104 weeks of the accident 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.

9I find that the applicant has proven on a balance of probabilities that he suffered a substantial inability to perform the essential tasks of his pre-accident employment from July 17, 2019 to November 1, 2019 and, therefore, he is entitled to IRBs for this period.

Essential tasks of the applicant’s pre-accident employment

10At the time of the accident, the applicant was self-employed as a painter and general construction labourer at his incorporated [Contracting company]. The applicant had worked in this position for more than ten years pre-accident.² The applicant testified that the work he completed for his residential, property management, and commercial customers was 80% painting and 20% miscellaneous construction work. The applicant testified that:

(i) Other than himself, there were no full-time employees at the [Contracting company].;

(ii) He worked mostly by himself; and

(iii) He had previously hired subcontractors on an occasional, as needed basis.

11The parties did not agree on the essential tasks of the applicant’s work at [Contracting company]. The applicant testified regarding a number of his pre-accident employment tasks at [Contracting company]. which included:

(i) Renting a cube van, loading it with his paint supplies such as paint pails (weighing 25 lbs), ladders (weighing 10 lbs), a spray machine (weighing 20-25 lbs), and driving it to transport material from storage to job sites;

(ii) Driving his personal vehicle (a small SUV) to and from jobsites; and

(iii) Driving subcontractors to job sites if they required transportation.

12While the respondent agreed that the applicant was required to drive for his pre-accident work, its position was that the applicant could have had someone else, such as a subcontractor, drive for him post-accident. Therefore, the respondent’s position was that driving was not an essential task of the applicant’s pre-accident employment. I disagree.

13I accept the applicant’s evidence that he worked primarily on his own prior to the accident and only hired subcontractors on an as-needed basis. As a result, I find that driving to and from job sites to transport himself as well as equipment and supplies was an essential task of the applicant’s pre-accident employment. I agree with the applicant’s submission that he could not have simply gotten onto a streetcar, bus, or other means of public transportation with his equipment and supplies to fulfill his employment responsibilities. There is also no evidence that anyone had ever completed the task of transporting equipment and supplies to job sites other than the applicant prior to the accident even when he had hired subcontractors. In fact, it was the applicant’s testimony that he provided transportation on occasion for subcontractors to job sites, not the converse. For these reasons, I find that an essential task of the applicant’s pre-accident employment was driving himself, supplies and equipment to job sites.

Substantial inability to perform the essential tasks of his pre-accident employment

14I also find that the applicant has proven on a balance of probabilities that he was substantially unable to drive himself and his painting supplies and equipment to job sites within the 104-weeks post-accident period.

15In the July 5, 2019 Psychiatry Insurer’s Examination (IE) Assessment Report by Dr. Bruce Ballon, psychiatrist,³ Dr. Ballon diagnosed the applicant with a specific phobia – driving as a driver – as a direct result of the accident.⁴ Dr. Ballon also opined that the applicant would benefit from an in-vivo on-road driving desensitization program as he had not received any treatment as of the date of his assessment for his specific phobia.⁵

16Despite this diagnosis and his recommendation, Dr. Ballon opined that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a direct result of the accident because the applicant’s specific phobia did not appear to be a factor for his job.⁶ When Dr. Ballon was challenged in cross-examination on this opinion, Dr. Ballon conceded that his understanding was that the applicant had other employees and that these employees, in Dr. Ballon’s opinion, could have transported the equipment and supplies as well as the applicant to job sites. Dr. Ballon conceded that if driving was an essential task of the applicant’s pre-accident employment then this fact would change his opinion and he would agree that the applicant had a substantial inability to perform the essential task of driving of his pre-accident employment. Therefore, I find that Dr. Ballon’s diagnosis of the applicant with a specific phobia – driving as a driver and Dr. Ballon’s testimony in cross-examination supports a finding that the applicant has proven on a balance of probabilities that he was substantially unable to perform the essential task of driving himself, supplies and equipment to job sites within the 104 weeks of the accident.

17Moreover, I am not persuaded by the respondent’s position on causation of the applicant’s diagnosis of a specific phobia – driving as a driver as this argument completely contradicts its own expert. Dr. Ballon confirmed in his July 5, 2019 report that the applicant drove a vehicle without issue prior to the accident⁷ and that the applicant sustained his specific phobia as a direct result of the accident.⁸ As a result, I am satisfied that but for the accident, the applicant would not have sustained his specific phobia of driving as a driver.

18The respondent also submitted that there was no viable job for the applicant to return to post-accident as the [Contracting company]. had a debt owing to the Canada Revenue Agency in excess of $110,000.00. Based on this debt, the respondent submitted that the [Contracting company] was “doomed” even if the accident had never happened and that there was no point in the applicant returning to his pre-accident position. Whether I agree with the respondent about the financial state of the [Contracting company]. or not, this evidence is immaterial to the test for entitlement to IRBs in the post-104-week accident period. The applicant is only required to prove on a balance of probabilities that he was substantially unable to complete the essential tasks of his pre-accident employment and, in this case, the applicant has met his burden.

19Finally, the respondent relied upon the January 26, 2018 clinic report by Dr. Mitra Niroumand, physician (respirology and sleep disorders)⁹ to call into question the applicant’s reporting of his post-accident driving. Specifically, Dr. Niroumand stated that the applicant was driving a vehicle daily.

20I do not place weight on Dr. Niroumand’s clinical note regarding the applicant’s post-accident driving. The applicant has consistently reported to all of the s. 44 and the s. 25 assessors that he had not driven post-accident except for a very few short attempts. Even the surveillance conducted of the applicant on May 16, 2019 and June 24, 2019 showed the applicant travelling in a vehicle as a passenger and not as a driver.¹⁰ Indeed, Dr. Niroumand’s clinic note is truly a standalone document and for this reason, I give it little weight on the issue of whether or not the applicant was credible in reporting his post-accident driving.

21For all these reasons, I find that the applicant is entitled to IRBs in the amount of $400.00 per week for the period of July 17, 2019 to November 1, 2019.

Entitlement to IRBs beyond 104 weeks of the accident (November 2, 2019 to date and ongoing)

22To be eligible to receive IRBs after 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which they are reasonably suited by education, training, or experience.¹¹ This is referred to as the “complete inability” test and is more stringent than the pre-104 week IRB test.

23I find that the applicant has proven on a balance of probabilities that he is entitled to IRBs for the period from November 2, 2019 to date and ongoing.

The applicant’s education, training, and experience

24The applicant testified that he immigrated to Canada from Turkey in 1999 and that his first languages are Turkish and Kurdish, but he was able to participate in the hearing in English without the assistance of an interpreter. The applicant testified that his highest level of education was high school, and that he completed two years of a four-year business university program in Turkey. In Turkey, the applicant worked in an oil refinery for eleven years completing physical tasks.

25Once he immigrated to Canada, the applicant took an English as a second language course for approximately two to three months until he started working at a [coil processing company] in 1999. The applicant worked there as a machine operator until 2006 with no desk duties. After this position, the applicant worked in a logging job in the Rocky Mountains driving a heavy truck trailer transporting logs. The applicant described this position as very physical as he was required to tie down the loads of logs to the truck beds.

26In 2008, the applicant returned to Ontario and started his painting and construction business. The applicant testified that not only was he responsible to complete the painting and construction work for the [Contracting company], he was also required to attend prospective job sites, provide estimates for jobs which included taking measurements with a measuring tape, ordering paint, addressing any customer service issues that arose, preparing written and/or computer generated invoices (from templates), and providing invoices to customers. The applicant testified that while he did not have a computer at the time of the hearing, he previously owned a laptop that he used for invoicing. The applicant also had experience in retaining paralegal representation to pursue bad debts owed to the [Contracting company] and hiring subcontractors on an as-needed basis.

27After the accident, the applicant attended job sites to provide project ideas and estimates to previous customers. The applicant testified that the previous customers would drive him to their location but that he was never paid for these services nor did he complete any of the actual painting/construction work. The applicant estimated that he attended job sites for such purposes three to five times maximum per year.

28The applicant testified that he never worked a “desk job” in his life, he types using one finger, he had no internet or computer in his home at the time of the hearing, and he participated in the hearing at a friend’s house by using their internet and device. The applicant, however, confirmed that he is able to access the internet and his email on his outdated blackberry device.

29The applicant also worked on an ad hoc basis as a musician playing keyboard at weddings and parties from 2008 until the accident. He testified that this ad hoc role only comprised 10% to 15% of his total earnings. The applicant stated that he sold his keyboards following the accident as he needed the money and also because he no longer enjoyed playing keyboard.

30I accept the applicant’s testimony that he would be suited for heavy physical jobs based on his education, training, and experience. I also agree with the applicant’s submissions that he has limited English skills and a limited resume. I also find, however, that as an owner and operator of his own small business that the applicant also has experience and expertise in hiring and managing subcontractors, providing estimates and invoices, ordering supplies, and addressing customer service issues.

The applicant’s position

31The applicant relied upon the opinions of Dr. Dilkhush Panjwani, the applicant’s treating psychiatrist, and Dr. Shmuel Bergman, the applicant’s family physician, in support of his position that he is completely unable to engage in any employment for which he is reasonably suited by education, training, or experience from November 2, 2019 to date and ongoing.

32The applicant first began treatment with Dr. Panjwani on January 2, 2020.¹² On this date, Dr. Panjwani diagnosed the applicant with the following conditions as a result of the accident:

(i) Major depressive disorder, single continuous episode, severe with general anxiety;

(ii) Pain disorder, chronic;

(iii) Post-traumatic stress disorder, chronic; and

(iv) Post-traumatic concussion syndrome.¹³

33In a clinical note dated March 12, 2021,¹⁴ Dr. Panjwani confirmed that the applicant had continued treatment with him from January 2, 2020 to March 12, 2021. At that the time of his note, Dr. Panjwani stated that the applicant’s persistent pain perpetuated his depression and anxiety symptoms which gradually worsened over the years and had become pervasive in nature and was negatively affecting most areas of his life.¹⁵ For example. Dr. Panjwani confirmed that the applicant had severe impairment in his ability to:

(i) Concentrate on a task, retain new information, multi-task, and follow instructions;

(ii) Interact with others, participate in social activities, and negotiate or discuss an opinion;

(iii) Tolerate stress and frustration; and

(iv) Live autonomously, completing domestic tasks, and adapting to change.¹⁶

34Dr. Panjwani also opined that the applicant was unable to perform work tasks due to pain and his impaired cognitive and executive functions, and that he was totally disabled to perform any gainful occupation.¹⁷ Dr. Panjwani also stated that the applicant’s long-term prognosis was poor due to the severe and prolonged nature of his mental and physical disorders.¹⁸ On March 12, 2021, Dr. Panjwani diagnosed the applicant with:

(i) Mild Neurocognitive Disorder due to Traumatic Brain Injury (Post concussive Syndrome);

(ii) Major Depressive Disorder, continuous single episode, severe, without any psychotic features;

(iii) Generalized Anxiety Disorder;

(iv) Post-traumatic Stress Disorder, chronic; and

(v) Chronic Pain Disorder associated with both psychological factors and general medical conditions.¹⁹

35The applicant also relied upon Dr. Bergman’s March 1, 2021 Report²⁰ which summarized the applicant’s medical history since the accident. In his report, Dr. Bergman confirmed the following post-accident diagnoses:

(i) Post-traumatic headaches, dizzy, tinnitus;

(ii) Decreased concentration;

(iii) Post-concussion syndrome;

(iv) Post-traumatic vestibulopathy;

(v) Cervicogenic headaches;

(vi) Chronic migraines;

(vii) TMJ (temporomandibular joint syndrome);

(viii) Neck pain;

(ix) Shoulder pain in the left arm with numbness, tendinitis of the shoulder;

(x) Degenerative disc disease, spinal stenosis of the lumbar and cervical spine;

(xi) Chronic pain disorder;

(xii) Fibromyalgia;

(xiii) Tense, sadness, and a sleep disorder;

(xiv) Post-traumatic Stress Disorder; and

(xv) Major depressive disorder.

36It was Dr. Bergman’s opinion the applicant was totally disabled as a result of the accident and unable to return to any type of gainful employment as of November 1, 2017 due to a number of medical conditions which caused secondary limitations on function such as bending, lifting, walking, dressing, and performing activities of daily living (ADLs).

37The applicant regularly saw Dr. Bergman post-accident for accident-related complaints. Between February 13, 2020 and February 28, 2021, the applicant saw Dr. Bergman twelve times with ongoing back and neck pain complaints, psychological complaints, and complaints of decreased concentration, headaches, dizziness, difficulty with walking, bending, lifting, dressing and completion of ADLs, and fatigue.

38During the post-104-week accident period, Dr. Bergman also completed a medical report in support of the applicant’s application for Canada Pension Plan (CPP) Disability Benefits dated June 15, 2020.²¹ Dr. Bergman listed the majority of the conditions listed above in paragraph [35] and noted that the applicant was impaired in regards to lifting, walking, bending, and sitting. Dr. Bergman also reported that the applicant had functional limitations regarding dressing, cleaning himself, and completing his ADLs, and that he was walking slow, was required to rest frequently, could not stand or sit for long periods, was unable to prepare meals, had decreased concentration, and lacked energy to leave his home. Dr. Bergman stated that the applicant was totally disabled and was unable to return to gainful employment due to a combination of factors including his chronic pain, chronic headaches, and difficulty concentrating. Dr. Bergman noted that the expected duration of the applicant’s impairment was greater than one year and that his condition was likely to deteriorate.

39The applicant also saw Dr. David Morgenthau, neurologist, on January 25, 2021 regarding his ongoing headaches.²² The applicant complained of worsening headaches in recent months such that he would have headaches around three days in duration a couple of times per month that required him to rest for relief. Dr. Morgenthau opined at that time that the applicant required prophylactic therapy for his ongoing headaches.

The respondent’s position (Causation)

40The respondent’s submitted no medical evidence dated within the post-104-week accident period as its position was that the applicant’s injuries were not caused by the accident but instead were pre-existing.

41In order to determine whether the applicant is entitled to IRBs from November 2, 2019 to date and ongoing, the applicant is first required to prove on a balance of probabilities that his impairments that he claims render him completely unable to engage in any employment were caused by the accident. The applicable test in making this determination is the “but for” test: whether the applicant would have had the impairments but for the accident.²³ Moreover, the accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the accident need only to have been a “necessary cause.”²⁴

42Prior to the accident, the applicant:

(i) Suffered from atrial fibrillation (which was diagnosed in his childhood), hypertension, thyroid disease, a thyroid nodule, sinus problems, moderate sleep apnea, and gastritis duodenitis;

(ii) Reported shortness of breath when climbing stairs, the week prior to the accident;²⁵ and

(iii) Agreed that he attended a hospital in January 2017 for left scapular pain although no records were obtained to confirm this visit.

43I find that none of the applicant’s physical pre-existing medical conditions set out in paragraph [42] above had any impact on the applicant’s areas of physical pain complaints post-accident. Post-accident, the applicant complained of physical injuries to his neck, back and right shoulder. None of these areas were symptomatic prior to the accident. Indeed, even Dr. Pravesh Jugnundan, general practitioner, opined in his July 5, 2019 General Practitioner’s IE Assessment Report²⁶ that the applicant’s soft tissue injuries were caused by the accident.²⁷ Dr. Jugnundan stated, “based on current findings, but for the accident, the current level of impairment function would not exist.”²⁸

44The respondent also questioned whether the applicant sustained a concussion, a mild traumatic brain injury or even hit his head in the accident. The respondent relied upon the December 2, 2020 Neurology Consultation Note by Linda Johnson, Neurology Nurse Practitioner,²⁹ where Johnson noted, “The patient reports he felt that he was jolted in the vehicle but he did not hit his head.”³⁰ Despite this report, Johnson diagnosed the applicant with, among other conditions, a mild traumatic brain injury, post-concussion syndrome, chronic migraines, and cervicogenic headaches.

45I place little weight on Johnson’s Neurology note for several reasons. First, Johnson made all the diagnoses of the applicant based solely on his self-reports as her assessment was conducted virtually and the physical examination was deferred. Johnson also did not list any documents reviewed as part of her assessment of the applicant and no information of her credentials was provided. The lack of information on documents reviewed is highly problematic as Dr. Bergman noted the day following the accident that the applicant reported hitting his head against the seat but that he did not lose consciousness after the accident.³¹ In any event, it is clear on the evidence that the applicant did not complain of any headaches or cognitive issues prior to the accident. Therefore, even if I agreed with the respondent that the applicant did not sustain a concussion or TBI as a result of the accident, there is still an overwhelming amount of evidence before me that the applicant suffered from significant headaches and migraines, and made repeated cognitive complaints post-accident.

46The respondent also relied upon the July 5, 2019 Psychiatry Assessment Report by Dr. Bruce Ballon, psychiatrist³² to support its position that the applicant’s psychological conditions were not caused by the accident. In his report, Dr. Ballon opined that the applicant’s adjustment disorder was due to numerous factors not directly related to the accident including stress with dealing with his son’s health issues (Friedreich’s Ataxia), the applicant’s pre-existing medical conditions, feelings of isolation once his daughter and her family moved to Turkey, ongoing legal proceedings regarding debts owed to the [Contracting company], an unclear alcohol intake, cultural influences to not accept certain forms of help for his medical conditions including financial resources, and medication intake that could worsen his psychological complaints.³³

47I place little weight on Dr. Ballon’s opinion regarding the cause of the applicant’s adjustment disorder. Not only is Dr. Ballon’s report the only psychological or psychiatric report before me that calls into question the cause of the applicant’s adjustment disorder, Dr. Ballon’s opinion in this regard contradicts the January 19, 2018 IE Psychology Assessment Report by Dr. Mohammad Nikkhou, psychologist.³⁴ In his report, Dr. Nikkhou diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood and features of specific phobia (in-vehicular type) as a result of the accident³⁵ while being aware of the applicant’s son’s health condition and the applicant’s pre-existing health conditions.³⁶ Moreover, while Dr. Nikkhou cautioned that his diagnoses should not be considered definitive in this case due a number of factors, Dr. Nikkou’s concerns regarding the validity of his diagnoses was based on the level of symptoms reported by the applicant as opposed to the cause of his symptoms.³⁷

48I also place little weight on Dr. Ballon’s opinion regarding causation of the applicant’s adjustment disorder because there are no psychological complaints in Dr. Bergman’s clinical notes and records (CNRs) from July 31, 2017 to the date of the accident.

49For all of these reasons, I find that the accident was a necessary cause of the applicant’s impairments as he has proven on a balance of probabilities that but for the accident, both his physical and psychological impairments (except for his sleeping disorder as this condition was clearly pre-existing and symptomatic) would not have arisen.

The applicant’s complete inability to engage in employment

50As I have found that the applicant has proven that the accident caused his physical and psychological injuries (except his sleeping disorder), the applicant’s evidence for the 104-week period post-accident is persuasive and remains uncontradicted. As a result, I find that the applicant has proven on a balance of probabilities that he was completely unable to engage in heavy physical jobs.

51I also find that the applicant has proven that he is completely unable to engage in owner/operator-type duties which he has experience in from owning and operating the [Contracting company]. I accept the testimony of Dr. Steven Blitzer, the applicant’s treating pain specialist, that while the applicant was able to complete a token task, he was not able to undertake continuous, regular work. Dr. Blitzer also testified that it was his opinion that the applicant was still not able to work at the time of the hearing based on how badly the applicant feels, seeing how the applicant functions, and knowing that the applicant has difficulty completing simple tasks and regular everyday activities. Dr. Blizter’s opinion is consistent with Dr. Panjwani’s opinion that the applicant has severe impairment in his ability to concentrate on a task, to retain new information, to multitask, and to follow instructions.³⁸

52On the evidence, I find that the applicant has proven on a balance of probabilities that he was completely unable to engage in any employment for which he is reasonably suited by education, training, or experience from November 2, 2019 to date and ongoing. As a result, the applicant is entitled to IRBs for this period in the amount of $400.00 per week.

Award

53Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

54It is well settled, however, that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

55I find that the applicant is not entitled to an award in this matter. The applicant submitted that the respondent unreasonably withheld his IRB payments. Specifically, the applicant submitted that the respondent failed to properly review Dr. Ballon’s July 5, 2019 report and his diagnosis of specific phobia – driving as a driver, which would have made it obvious that he was entitled to IRBs at least for the 104-week post-accident period since the applicant was required to drive to job sites to work. While this may be true, I was not directed to any evidence that this issue was brought to the attention of the respondent such that it failed to consider it once the issue was raised by the applicant. In my opinion, applicants cannot simply reply upon their silence and inaction for a finding that the respondent has acted excessively, imprudently, stubbornly, inflexibly, unyieldingly, or immoderately without anything more in support of their claim for an award. Moreover, the applicant did not specify the amount of the award claimed or made any submissions on quantum.

Interest

56The applicant is entitled to interest in accordance with s. 51 of the Schedule for the payment of IRBs in the amount of $400.00 per week from July 17, 2019 to date and ongoing.

CONCLUSION

57For the reasons outlined above, I find that the applicant:

(i) Is entitled to IRBs in the amount of $400.00 per week from July 17, 2019 to date and ongoing plus interest in accordance with s. 51 of the Schedule; and

(ii) Is not entitled to an award under Regulation 664.

Released: January 7, 2022