20-010460/AABS - A

Licence Appeal Tribunal File Number: 20-010460/AABS

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:

Medgar Baxter

Applicant

and

Royal Sun Alliance Insurance

Respondent

AMENDED DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Meghan Walker, Counsel

For the Respondent:

Jennifer Sweitzer, Counsel

Symone Marlowe, Counsel

HEARD:

By Way Of Written Submissions

BACKGROUND

1The applicant, Medgar Baxter, was injured in an automobile accident on January 22, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Royal Sun Alliance Insurance, the respondent.

2The respondent terminated the applicant’s income replacement benefits (IRBs) on September 11, 2018. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on January 20, 2021, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to IRBs in the amount of $271.17 per week from September 26, 2018 to date and ongoing?²

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

RESULT

5The applicant is not entitled to IRBs from September 26, 2018 to date and ongoing. The applicant is also not entitled to an award or interest, and the application is dismissed.

ANALYSIS

Income Replacement Benefits

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.

Entitlement to IRBs within 104 weeks of the accident (September 26, 2018 to January 22, 2020)

7The 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.

8The applicant bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from September 26, 2018 to January 22, 2020.

9The applicant submits that at the time of the accident, she was working full-time at a spa as an esthetician. In her submissions, the applicant described the essential tasks of her employment as performing facial and body treatments designed to enhance a person’s appearance, including waxing and massage treatments. She was also required to apply makeup, receive stock inventory, perform general cleaning of the treatment rooms, and laundering items.

10The applicant reports being employed at this spa since September 2017 up until the accident. She submits that she attempted a brief return to work following the accident (dates not provided) unable to continue working because of her inability to stay in prolonged bending and standing positions. The applicant submits that she would like to work but she cannot due to her significant and ongoing injuries which include severe and frequent headaches, persistent pain in her neck, mid back and lumbar spine.

11The applicant submits that the s. 25 assessment completed by pain practitioner Dr. Gary Shapero on July 8, 2019, found that the accident caused the applicant severe and dramatic limitations to her lifestyle, including her employability. Dr. Shapero noted that the applicant has not been able to return to work and that she suffered a serious and permanent impairment of an important physical mental and/or psychological function. Dr. Shapero’s prognosis for a full recovery was extremely guarded and he opined that the applicant’s competitive advantage within the workplace has been substantially compromised, given that she has been not able to work since the accident.

12The respondent’s position is that the applicant has not established that she suffered a substantial inability to complete her pre-accident employment after September 25, 2018. The respondent noted inconsistencies with the applicant’s Application for Accident Benefits (OCF-1) dated January 31, 2018. The respondent submitted that the OCF-1 indicates that the applicant was self employed as a skin care therapist from November 2016 to November 2017, working 25 hours a week, whereas her Record of Employment indicated that she was employed at a spa working 20 to 40 hours biweekly until January 30, 2018. Additionally, the applicant’s Record of Employment indicates that she quit her pre-accident employment at the spa on January 30, 2018. The respondent submits that had she left her employment due to sickness or injury the Record of Employment could have reflected this by utilizing the code “D”. The respondent further submits that the applicant’s family physician’s clinical notes and records indicate that she went back to work at a spa at some point (the date is unclear) but that in March 2020 she was off due to COVID-19. The respondent submits that despite several requests, the applicant has not provided an Employers Confirmation Form (OCF-2) or any other employment documentation apart for her Record of Employment to address these discrepancies.

13The respondent also submits that Dr. Shapero’s report should be given very little weight because he failed to list the documents that he reviewed, he did not complete any objective testing, and he made no objective observations during the assessment. The respondent submits that Dr. Shapero noted that the applicant was unable to return to work since the accident, which the respondent submits is not an accurate refection of the record.

14The respondent also noted that the applicant’s Disability Certificate (OCF-3) dated June 21, 2018, indicated that her period of disability was 5-8 weeks. Further, the applicant underwent various types of insurer’s examinations (IEs) with three different assessors to determine the applicant’s entitlement to IRBs. The IE all assessors found that the applicant was able to return to her pre-accident employment. These reports were dated September 11, 2018.

15Based on the evidence before me I do not find that the applicant has proven on a balance of probabilities that she suffers a substantial inability to complete her pre-accident employment after September 25, 2018. There are discrepancies and missing information with respect to the applicant’s pre- and post-accident employment. The applicant has also failed to produce objective evidence of what the essential tasks of her employment are or what her specific post-accident limitations were. The only information provided by the applicant in this regard are in her submissions. Submissions are not evidence. The last OCF-3 submitted by the applicant was dated June 21, 2018, which limits her period of disability to approximately August 2018. No other OCF-3 was provided. I also agree with the respondent and place little weight on Dr. Shapero’s report given its limitations as highlighted in paragraph [13] above. Furthermore, Dr. Shapero’s report is undated and, therefore, it is unclear as to when it was authored. In comparison, all of the IE assessors that examined the applicant were consistent in their opinion that the applicant was able to return to her pre-accident employment and I am more persuaded by this evidence.

Entitlement to IRBs beyond 104 weeks of the accident (January 22, 2020 to date and ongoing)

16To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training, or experience.³

17I find that the applicant has failed to prove on a balance of probabilities that she was completely unable to engage in any employment for which she is reasonably suited by education, training, or experience for the period of January 22, 2020 to date and ongoing. The applicant failed to provide sufficient evidence that she would meet the stricter post-104-week IRB eligibility test, as she submitted no information on her education, training, or experience, or any reports or medical documentation from the period in dispute that addressed her ability to work in any other employment.

Award

18Section 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.

19The applicant is seeking an award as part of her appeal. This issue was not listed as an issue in dispute in the Case Conference Report and Order issued on January 21, 2021 and would be improper to add at this stage in the proceeding. That being said, as I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

20As there are no benefits owing, no interest is payable.

CONCLUSION

21For the reasons outlined above, I find that:

(i) Is not entitled to IRBs from September 11, 2018 to date and ongoing;

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

(iii) No interest is payable; and

(iv) The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2While the applicant claimed IRBs from September 11, 2018, it is undisputed that the respondent paid IRBs up until September 25, 2018. As a result, the correct period in dispute is from September 26, 20218 to date and ongoing.
3. 3Schedule, s. 6(2)(b).