McKay v. Travelers Insurance Company of Canada, 2022 CanLII 6748

Citation: McKay v. Travelers Insurance Company of Canada, 2022 ONLAT 19-009671/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:

Matthew McKay

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Matthew Gervan, Counsel Ashley Dunkley, Paralegal

For the Respondent: Sharon Dagan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant, Matthew McKay, was injured in an automobile accident on December 28, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Travelers Insurance Company of Canada, the respondent.

2The respondent terminated the applicant’s income replacement benefits (IRBs) effective April 29, 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 20, 2020 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 of $400.00 per week from April 29, 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?

RESULT

5The applicant is not entitled to IRBs for the period of January 27, 2018 to date and ongoing. As no payment of benefits are owing, there is no basis upon which to consider an award under Regulation 664 and this application is dismissed.

ANALYSIS

Income Replacement Benefits (IRBs)

6The applicant seeks payment of IRBs after 104-weeks post-accident. To be eligible to receive IRBs 104 weeks post-accident, s. 6(2)(b) of the Schedule requires that an applicant be completely unable to engage in any employment for which they are reasonably suited by education, training, or experience.

7At the time of the accident, the applicant was self-employed. He owned and operated his own business in the communication sector, MSME General Contracting.² In his role, he would climb towers ranging from 300 feet to 1000 feet above ground carrying 50 to 100 pounds of equipment to troubleshoot and repair communication lines.³ The applicant described his position as a heavy physical job.⁴ The applicant reported that he had worked on average 60 hours per week in this capacity for 25 years and that he employed five sub-contractors.⁵ The applicant had a vast catchment area and would be required to drive up to eight hours before arriving at a worksite.⁶

8In the April 8, 2019 Vocational Assessment Insurer’s Examination (IE) Report by Jennifer Kengis, vocational assessor,⁷ the applicant reported that he earned approximately $150,000 to $200,000 per year prior to the accident.⁸ The applicant also reported to Kengis that he had the following previous work experience: marine mechanic apprenticeship with a marine company; rowing coach with University of British Columbia; marine mechanic for a landscaping company; and a residential home builder and renovator.⁹ The applicant graduated from Sir Fleming College with a diploma in marine mechanics in or about 1986/1987, completed his degree in fine arts from Brock University in or about 1990,¹⁰ described his computer skills as adequate, and reported a working knowledge of French.¹¹

9After completing a transferable skills analysis based only on the skills and abilities acquired by the applicant through his work history as reported to Kengis, Kengis opined that there were no other occupations within the National Occupational Classification that would maximize the applicant’s earning capacity and be commensurate with the nature and status of his pre-accident occupation.¹² At the time of her assessment, however, Kengis was not provided with the applicant’s T4 slips or any other taxation documentation to confirm the applicant’s reported pre-accident income.¹³

10On September 16, 2020, the applicant produced to the respondent a January 21, 2014 employment offer letter from CommScope Canada Inc.¹⁴ following a lengthy exchange of production requests concerning the applicant’s pre-accident income. This employment offer letter stated that the applicant would be employed fulltime by CommScope Canada Inc. effective January 27, 2014 in the position of Canadian National Sales Manager with a base salary of $114,840.00 per year, but that he was eligible to earn an additional annual incentive income of up to $76,569.00 based on performance.¹⁵ The applicant would work from a home office and CommScope Canada Inc. would provide him with a laptop, printer with fax capabilities, standard software, modem, cabling, and wiring, and he would be reimbursed for a business telephone line to his home.¹⁶ The applicant’s bank records confirm that he received payments from CommScope Canada Inc. up to June 15, 2015¹⁷ and, therefore, I accept that he was employed with CommScope Canada Inc. up until this time.

11I agree with the respondent that the applicant failed to report his previous work experience as a National Sales Manager to Kengis according to her April 8, 2019 report. As a result, the respondent requested that I draw an adverse inference from the applicant’s failure to advise Kengis of his employment with CommScope Canada Inc. I find that I do not need to draw such an inference as the applicant has failed to provide any evidence of what his experience at CommScope Canada Inc. entailed to allow me to undertake the analysis required by s. 6(2)(b) of the Schedule. The only information provided to me about the experience that the applicant would have gained from his position at CommScope Canada Inc. was provided by way of the applicant’s submissions and submissions are not evidence.

12Moreover, even if I were to infer from the information contained in the January 21, 2014 employment offer letter that the applicant’s role at CommScope Canada Inc. was sedentary, required computer work, and usage of various communication devices such as a telephone, internet, and fax machine, the applicant has provided no medical evidence that he would not be able to undertake this type of work during the period for which he is claiming IRBs. While it is evident that the applicant continued to report leg pain and received local injections every three months during the period in dispute,¹⁸ his ongoing pain did not prevent the applicant from doing “core exercises,” using a rowing machine, keeping active,¹⁹ walking 2 kms,²⁰ and cutting the grass at his cottage in May 2020.²¹ Under surveillance, the applicant was also observed running errands and moving a refrigerator with the assistance of a dolly on November 19, 2020.²² Therefore, while the applicant’s ongoing leg pain from his accident-related injuries may have prevented the applicant from climbing the heights that he did in his role at MSME General Contracting, there is no evidence that the pain would prevent him from completing the basic physical functions required in a sedentary job.

13Psychologically, the applicant was diagnosed with a mild adjustment disorder and a mild somatic symptom disorder as a result of the accident by Dr. David Prendergrast, psychologist, in his April 8, 2019 Psychological Assessment IE Report.²³ Nonetheless, Dr. Prendergrast opined that the applicant was not psychologically prevented from returning to some form of employment as the applicant’s level of distress did not result in a complete inability to engage in any employment or self-employment for which the applicant was reasonably suited by his education, training, or experience as a result of the accident.²⁴

14Dr. Sujay Patel, psychiatrist, completed a s. 25 Psychiatric Paper Review Report dated April 13, 2020.²⁵ Dr. Patel noted that the applicant’s documentation reflected that he was “irate” and “angry,” and that such poor emotional regulation could result in workplace conflict with clients of employees, amotivation and/or avoidance and withdrawal.²⁶ Surveillance dated November 20, 2020, however, showed the applicant having a positive interaction between himself and someone he appeared to know as well as a fast-food location employee without any such outburst or anger.²⁷ While I appreciate that surveillance only captures a moment in time, Dr. Patel’s remarks about the applicant’s potential irritability and anger that could impact the workplace were not observed in the evidence before me.

15In sum, I find that the applicant has failed to meet his onus of proving on a balance of probabilities that he is completely unable to engage in any employment for which he is reasonably suited by education, training, or experience, as I have no evidence of what experience he gained while working for CommScope Canada Inc. Even if I were to infer what the applicant’s work tasks at CommScope Canada Inc. were/are based on the limited evidence before me, I find that the applicant has not submitted any medical evidence that would support a finding that he could not work in a similar sedentary, high-salaried, work-from-home sales position similar to the position that he held at CommScope Canada Inc. Therefore, the applicant is not entitled to IRBs from January 27, 2018 to date and ongoing.

Award

16Section 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.

17As I have found that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

CONCLUSION

18For the reasons outlined above, I find that the applicant is not entitled to IRBs from January 27, 2018 to date and ongoing, there is no basis upon which to consider an award under Regulation 664 in this matter and this application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2April 8, 2019 Orthopaedic Insurer’s Examination (IE) Assessment Report by Dr. Gilbert Yu Ming Yee, Written Submissions of the Applicant, tab 43 at page 5.
3. 3April 4, 2017 Neurology Consultation Note by T. Fitzpatrick, PGY3, Written Submissions of the Applicant, tab 15 at page 7 and May 7, 2018 Neurological IE Assessment Report by Dr. Minh Nguyen, neurologist, Written Submissions of the Applicant, tab 42 at page 6.
4. 4Supra note 2.
5. 5May 7, 2018 Physiatry Assessment IE Report by Dr. Vidya Sreenivasan, physiatrist, Written Submissions of the Applicant, tab 42 at page 7.
6. 6A, page 121, at page 7.
7. 7July 17, 2018 Occupational Therapy Initial Report: In-Home Functional Assessment by Neva Hui, occupational therapist, Written Submissions of the Applicant, tab 25.
8. 8Ibid. at page 3.
9. 9Ibid. at page 12.
10. 10Ibid. at page 3 and October 10, 2018 Psychological Assessment Report by Dr. Tasleem Damji, psychologist, Written Submissions of the Applicant, tab 44 at page 3.
11. 11April 8, 2019 Vocational Assessment Report by Jennifer Kengis, vocational assessor, Written Submissions of the Applicant, tab 43 at page 12.
12. 12Ibid. at pages 22 and 30.
13. 13Ibid. at page 11.
14. 14Written Submissions of the Respondent, tab 7.
15. 15Ibid.
16. 16Ibid.
17. 17Written Submissions of the Respondent, tab 8.
18. 18Written Submissions of the Applicant, tabs 26 and 39.
19. 19Written Submissions of the Applicant, tab 26.
20. 20Supra note 2 at page 6.
21. 21May 29, 2020 Clinical Note and Record (CNR) Entry by Dr. Cohen, Written Submissions of the Respondent, tab 19.
22. 22November 26, 2020 Surveillance Report by Investigative Solutions Network Inc., Written Submissions of the Applicant, tab 55 at page 21.
23. 23Written Submissions of the Applicant, tab 43 at page 9.
24. 24Ibid.
25. 25Written Submissions of the Applicant, tab 45.
26. 26Ibid. at page 37.
27. 27Supra note 22.