Licence Appeal Tribunal File Number: 19-006035/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:
Victor Mensah
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Applicant:
Salvatore Shaw, counsel
For the Respondent:
Andrew Papadimitropoulos, counsel
HEARD by Videoconference:
June 1, 2021 and October 19, 20, 21, 22, 2021
BACKGROUND
1The child of Victor Mensah (“applicant”) was involved in an automobile accident on November 26, 2014 (“accident”). The applicant sought income replacement benefits (“IRB”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). 1
2TD Insurance Meloche Monnex (“respondent”) paid the applicant IRB in the amount of $400.00 per week until June 1, 2017 when it determined him ineligible.
3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
ISSUES
4The issues to be decided are:
i. Is the applicant entitled to an IRB in the amount of $400.00 per week for the period June 1, 2017 to date and ongoing (“post 104 week IRB”)?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
5I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. No special award is made. No interest is payable. The applicant’s application is dismissed.
LAW
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 an accident-related impairment that results in a substantial inability to perform the essential tasks of that employment. This inquiry is divided into two steps: 1) what are the essential tasks of the applicant’s pre-accident 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)(b) of the Schedule provides that the applicant, a result of the accident, must be suffering from a complete inability to engage in any employment or self 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.
ANALYSIS
Is the applicant entitled to post 104 week IRB in the amount of $400.00 per week?
Submissions of the Parties
10The applicant submits that he remains unable to return to his pre-accident employment as a full-time salesperson and is therefore entitled to post 104-week IRB. The applicant submits that he continues to suffer from physical, psychological and cognitive injuries from the accident.
11The applicant relies on various records including: three OCF-3s (disability certificates) dated May 20, 2015, March 22, 2016 and December 13, 2016; a June 25, 2019 behaviour assessment report of Trisha Di Caro, applicant’s behaviour therapist; an April 14, 2021 psychological assessment report of Dr. Hannah Rockman, applicant’s psychologist; records and a letter from Dr. Lofsky, applicant’s family physician; records of applicant’s physician Dr. Vaid from 2019; records of Oshawa Psychological counselling; records and reports of Dr. Budianto, applicant’s psychologist from 2018 and 2021; records and reports of Dr. Berk, applicant’s psychologist from 2018, 2019 and 2021; a 2020 psychological assessment report of Dr. Jamieson, applicant’s psychologist; and the social work consulting records and reports of Sarah Warren and Heather Condello from 2015, 2017 and 2019. The applicant also submits that by advising the applicant that he may qualify for Canada Pension Plan (“CPP”) benefits, the respondent has acted at odds with its position in this proceeding.
12The respondent submits that the evidence shows that the applicant does not suffer a complete inability to engage in any occupation for which he is reasonably suited by education, training or experience but instead demonstrates that the applicant is an individual capable of employment and self-employment. The applicant has a high school education with some undergraduate courses completed at the University of Toronto who has, post-accident, been involved in several business corporations, obtained his licence to sell insurance and worked in insurance sales, applied and was accepted at another university in Ontario but did not attend, and travelled extensively. The respondent also submits that the applicant failed to inform his physicians and other treatment providers about these employment endeavours. The respondent submits that the applicant stopped working in April, 2015 and has not attempted to return to his pre-accident employment since then and has no incentive to do so because he is the caregiver for his child injured in the accident and is in receipt of CPP benefits. The respondent relies on the reports and records of its assessors including: the 2016 functional abilities evaluation and physical demands analysis; the 2017 labour market survey for post-104weeks IRB; the 2018 vocational assessment and transferable skills analysis for post-104 weeks IRB; the disability reports of its assessor Camille Hadida, rehabilitation counsellor; the 2016, 2017 and 2021 reports and 2020 records of its psychologist Dr. McCutcheon; the 2016 physiatrist report of Dr. Oshidari; and the post-104 week IRB exam executive summary of Dr. Milne to support its submissions that the applicant does not meet the post-104 week IRB test.
13This hearing is to determine the applicant’s eligibility and entitlement to post-104-week IRB.
Applicant’s employment at the time of the accident
14The applicant was at his place of employment, Myron Smarter Business Gifts (“Myron”), on November 26, 2014 when he learned that his young son had been in an accident.
15At the time of the accident, the applicant was employed as a sales representative at Myron and was part of a small team of the most successful salespersons who handled the largest Myron accounts (“ace team”). The applicant’s work required him to work on the telephone with customers and on the computer, promote and handle sales of promotional products for businesses.
16The applicant testified that his employment at Myron was mentally demanding, required him to remember thousands of products and to possess the psychological and cognitive ability to deal with customers and handle orders.
Does the applicant suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience?
17I find that the applicant has not met his onus of demonstrating that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience as a result of the accident based on a lack of persuasive medical evidence.
18Although the applicant testified that he cannot return to work, his long time family physician Dr. Lofsky acknowledged in his testimony that he recommended that the applicant attempt to return to work at Myron, part-time to start, but the applicant chose not to do so after April, 2015. Unbeknownst to Dr. Lofsky, the evidence filed also demonstrates that the applicant had signed a training agreement, passed a test to obtain his licence to sell insurance in 2015 and earned $11,000.00 from selling insurance. Also unbeknownst to Dr. Lofsky, post-accident the applicant became involved in several business corporations as a director and in one case as a financier, tending to indicate a further ability to engage in self-employment.
19The disability certificates, made by the applicant’s occupational therapist Heather Condello, are insufficient to establish that the applicant cannot physically return to work. An occupational therapist is not qualified to diagnose injuries.
20Although the applicant testified that his physical, psychological and cognitive injuries resulting from the accident prevent him from sitting, standing, and being engaged in any occupation, given that he has trouble concentrating, remembering, multi-tasking and comprehending, this is contrary to the opinion of Dr. Oshidari, who opined that the applicant has no physical injuries which would prevent him from returning to work. I prefer the opinion of Dr. Oshidari to that of the applicant’s other physicians and treatment providers given his education and experience.
21Although the applicant testified that he has developed high blood pressure and has had some heart issues, and there is some reference in the medical records to this, the applicant did not provide medical evidence about any specific medical condition or evidence that his issues are not treatable or would prevent him from engaging in any occupation.
22I find unpersuasive the applicant’s submission that by advising the applicant that he may qualify for CPP, the respondent has acted at odds with its position in this proceeding. The test for CPP is found in Federal legislation and is different and not related to the analysis relevant here under s. 6(2)(b) in the Schedule.
23The applicant’s social worker Sarah Warren testified that based on the applicant’s self-reporting to her and her observations, she was of the view that the applicant could not return to work. However, she conceded in cross-examination that as a social worker, she did not do a formal psychological diagnosis but only identified symptoms.
24The opinions of Drs. McCutcheon and Hadida support the respondent’s position that the applicant does not suffer a complete inability to engage in any occupation for which the applicant is reasonably suited. Both testified at the hearing and were not seriously shaken in their testimony. Their reports are substantially consistent with each other and I prefer them to the opinions of applicant’s Dr. Jamieson, Sarah Warren and Heather Condello. Dr. McCutcheon explained in her testimony at the hearing that, even with a diagnosis of some psychological issues of anxiety and depression, the applicant’s issues are not so severe as to render him incapable of engaging in any occupation. Dr. McCutcheon reached this conclusion despite not knowing that the applicant had been engaged post-accident in insurance sales and other corporations which facts bear out her opinion.
25It appears that the applicant’s pre-accident employer still considers the applicant reasonably suited for his pre-accident occupation. Myron has never terminated the applicant’s employment and accommodated him with some modified work conditions post-accident. Beth Wallen, Myron’s human resources manager, testified that Myron has sales work available for the applicant now, although he would have to do some training and would not be started on the ace team because he has been away from Myron for so many years. Although the applicant testified that he had been offered work making “cold calls” to prospective customers, Ms. Wallen testified that the nature of his sales work would have to be determined.
26Even if the applicant cannot return to Myron or does not wish to, Camille Hadida identified several other categories of sales work in her reports for which the applicant appears to be suited.
27Importantly, it appears that the applicant considers himself suitable for sales work. Post-accident, the applicant obtained a licence to sell insurance and earned some $11,000.00 from sales of insurance in 2015 before he decided to stop. Although the applicant submits that this was a failed attempt at employment or self-employment, the level of his earnings in the first year of this new endeavour indicates significant success by the applicant
28It also appears that the applicant considers himself suitable for employment with friends or possibly self-employment. The applicant admitted in cross-examination that he incorporated a company under the Canada Business Corporations Act for a friend, agreed to be a director on two other corporations, loaned money to friend to start one of the businesses in which he is a director and applied, unsuccessfully, to become an immigration consultant. Although he denied receiving any monetary benefit from the corporations of which he is a director and denied doing any work for these corporations, the applicant did admit that he has travelled to South America, Africa and approximately 35 times to the United States post-accident.
29Although he denied any monetary gain from or work performed for the foreign education corporation that his friend Henry Nusetor set up, the applicant also admitted that Henry Nusetor lived at the applicant’s home when he first immigrated to Canada, that he loaned Henry Nusetor money to start his educational company, that he is named as director of that company, that his home address is shown as the Canadian head office on the company’s website and that he currently has a foreign student residing at his home, tending to indicate that the applicant is involved in that business. All of these activities are inconsistent with a complete inability to engage in any employment or self employment for which he is reasonably suited by education, training or experience post-accident.
30The applicant admitted in his testimony that he did not tell Dr. Lofsky or his other treating physicians or the respondent’s assessors about this or the business corporations he has been involved in post-accident and agreed that he should have done so. I find that the opinions of the applicant’s physicians and other assessors and treatment providers are undermined by his admitted failure to be truthful with them about his abilities.
31While it may be that the applicant will have some difficulties to face in returning to full-time employment or self-employment, presuming he is motivated to do so, when viewed in totality, I find that the weight of the applicant’s evidence is insufficient to establish that the applicant suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. Nothing in the case law cited by the appellant is persuasive otherwise.
Interest
32As no benefits are payable, no interest is payable.
Is the Applicant Entitled to an Award?
33Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. Here, I find there was no payment unreasonably withheld or delayed and as a result no award is made.
CONCLUSION
34For the reasons above, I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. No special award is made. No interest is payable. The applicant’s application is dismissed.
Released: January 26, 2022
Avril A. Farlam, Vice Chair