Reyhani v. Allstate Insurance Company of Canada, 2022 CanLII 92732

Citation: Reyhani v. Allstate Insurance Company of Canada, 2022 ONLAT 20-008996/AABS

Licence Appeal Tribunal File Number: 20-008996/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:

Shahrokh Reyhani

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Shahrokh Reyhani, Applicant James Klein, Counsel

For the Respondent: Kevin D. H. Mitchell, Counsel

HEARD: by Videoconference: October 18, 2021

OVERVIEW

1Shahrokh Reyhani, (“the Applicant”), was involved in an automobile accident on August 25, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).The Applicant was denied income replacement benefits, (“IRBs”), by Allstate Insurance Company of Canada, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute to be decided in this hearing are as follows;

a. Is the Applicant entitled to IRBs in the amount of $400.00 per week for the period from August 25, 2019 to-date and ongoing, less any post-accident income?

b. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

3I find that the Applicant is not entitled to IRBs as claimed.

BACKGROUND

4The Applicant was the driver of a vehicle which was struck from behind while stopped at a suburban intersection. The collision caused the airbag in the headrest to deploy and strike the Applicant in the back of his head. The Applicant pulled the vehicle over to the side of the road following the collision and exchanged information with the other driver. No police or ambulance attended at the scene of the accident and the Applicant drove the vehicle home after the incident.

5The Applicant saw his family physician, Dr. L. Grossman, on September 6, 2017. He complained of bilateral shoulder pain, a stiff neck, and right thigh and hand pain. He was diagnosed with neck and back strains and referred for imaging and physiotherapy. Imaging later showed degenerative changes only. The Applicant started treatment pursuant to the Minor Injury Guideline (“the MIG”). Yet, the Applicant’s soft-tissue pain persisted to the point that he was later diagnosed with chronic pain syndrome by Dr. D. Berbrayer, physiatrist.

6The Applicant missed about a week of work immediately following the accident. When he returned to his role at work as Vice President, Operations, the Applicant reduced his workload to approximately two-thirds of his pre-accident hours, or about 25 hours a week. He claims that chronic pain syndrome prevents him from returning to work on a full-time basis and at full duties. According to the Applicant’s testimony, his duties were reduced to accommodate his accident-related impairments – he managed fewer departments and the had fewer people reporting to him, was no longer responsible for managing overseas contracts, and was no longer involved in certain contract negotiations. Additional to this, the Applicant was off work from May 2020 to September 2021 as a result of the Covid-19 pandemic. The Applicant received temporary government benefits during the pandemic.

7The Applicant submits that he meets the test for IRBs but, to-date, has mitigated his losses by returning to work on a part-time basis. The Applicant’s position is that his post-accident earnings do not disentitle him from IRBs because it is possible that he meets the disability test for IRBs despite returning to work.

8Pursuant to section 7(3)(b) of the Schedule, the Respondent is permitted to deduct 70 per cent of any income from employment earned by the Applicant during the period in which he is eligible to receive IRBs. The Applicant concedes that, should he meet the disability test, his current earnings would negate any quantum of IRBs payable.

9The Respondent submits that the Applicant is not entitled to IRBs because he does not meet the more strict “post-104” test, as outlined in section 6(2)(b) of the Schedule.

10Lastly, and as a preliminary issue, the Respondent submits that the Applicant seeks declaratory relief, which would protect the Applicant from a stoppage of benefits, which he is not entitled to do.

MOTION TO DISMISS – DECLARATORY RELIEF

11The Respondent, at the start of the hearing, moved to dismiss the Applicant’s claim for IRBs. It submits that the Applicant has fully mitigated his loss, and therefore entitlement to IRBs, because he returned to work and that any entitlement would be nil due to deductions related to his post-accident earnings. According to the Respondent, the application should be dismissed because the Applicant seeks declaratory relief only.

12The Respondent submitted that this matter is akin to 17-001937 v Primmum Insurance Company¹. The application in that case was dismissed because the adjudicator determined that there were no issues in dispute because the Respondent paid the benefits in dispute to the Applicant in full, effectively conceding the position. The payment of benefits happened after the application was submitted but before the hearing.

13In response to the preliminary motion, the Applicant submitted that I shouldn’t hear the motion because it was raised improperly. To the Applicant, this was a live issue since the Application was made and the Respondent has not given him proper notice of the motion. He submits that he is prejudiced by this motion whereby he must reply at the last minute without all the evidence for the motion before him. If the motion is to be heard, the Applicant submits that the Tribunal has jurisdiction over the dispute because it involves his entitlement to IRBs. To the Applicant, he is subject to the limitation period in section 56 of the Schedule and he must dispute his entitlement now or be barred from doing so in the future should his situation change. I agree with the Applicant on both points.

14The Respondent’s preliminary motion was dismissed for the following reasons.

15I find that the case at hand is different than 17-001937 v Primmum Insurance Company because, here, the Respondent here does not concede entitlement to the benefit. Instead, the Respondent maintains that the Applicant is not entitled to IRBs because he does not meet the “post-104 test” in section 6(2)(b) of the Schedule.

16I also find that the Respondent’s motion is untimely. The jurisdictional issue raised has been live since the Application was submitted and, certainly, at the case conference. Yet, the motion was brought to me at the outset of the hearing. As a result, the Applicant has not received a timely notice of the motion, nor has he had an opportunity to properly review the reasons for the motion and supporting evidence. This prejudiced the Applicant in providing a fulsome response. I was also not satisfied that adjourning the hearing of the motion to a later day would adequately minimize the prejudice to the Applicant. The circumstances persuaded me that refusing an adjournment is consistent with the parties’ and the public’s interest in ensuring disputes are resolved in a timely, cost-effective way.

17Pursuant to rule 15.2 of the Common Rules of Practice & Procedure (“the Rules”), “a party may have a motion heard at a hearing, provided the party files the Notice of Motion and all supporting materials with the Tribunal at least 10 days in advance, or in accordance with any other schedule as may be determined by the Tribunal, and serves the Notice and supporting materials on all other parties.” Rule 3.1 states that the Tribunal should ensure disputes are resolved in an efficient, proportional and timely way. Thus, the respondent’s untimely motion is inconsistent with rule 3.1.

18While it was not addressed by the parties, I remind them that jurisdictional issues must be clearly detailed in a response to an AABS claim, pursuant to rule 20.4 of the Rules. Thus, it was incumbent on the Respondent to raise a jurisdictional issue at the case conference. Here, there is no evidence that it was raised at any time prior to the motion before me.

INCOME REPLACEMENT BENEFITS

19Pursuant to section 6(2)(b) of the Schedule, the Applicant may be entitled to IRBs if he can prove on a balance of probabilities that he suffers from 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 accident-related impairments (“the post-104 test”).

20The Applicant submits that he suffers from chronic pain syndrome and that no employer, acting reasonably, would employ him in the same or similar capacity based on his education, training, and experience.

21The Respondent suggests that the Applicant is not disabled by chronic pain and that the Applicant misconstrues a loss of status with a complete inability to engage in any employment or self-employment for which he is reasonably suited for.

ANALYSIS

22I find that the Applicant suffers from chronic pain syndrome, but the resulting impairment does not rise to the level 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. Thus, I find that the Applicant does not meet the post-104 test.

Education, Training, and Experience

23The Applicant holds two undergraduate degrees. He obtained a Bachelor of Science in Math and Computers from the University of London and a Bachelor of Arts in Economics from McMaster University. While his education training may be dated, he nevertheless achieved these degrees and, as discussed later, demonstrated during testing that he is a quick learner.

24The Applicant’s work experience is predominated by his current role as he has been there since 2001. He started his career working with Environment Canada for about seven years as a systems analyst. After that he worked as a systems manager with a pharmaceutical company for about five years. He has not worked as a systems analyst or a systems manager since he left that position some time in 2000.

25After working as a systems analyst, the Applicant started his own company, promoting concerts. In that role he managed tours of various international musicians for about a year. He met his current employer during that time and started to work in sales and business development. By 2004 or 2005, the Applicant was the VP of operations and felt as if he was the “face of the company.” During the course of the Applicant’s work, he developed various projects ranging from printing and IP phone systems, the implementation of a datacentre, prepaid long distance calling cards, and an online television channel with over 400 contracted content providers located around the world.

Injuries and Impairments

26Dr. D. Berbrayer, physiatrist, who testified on behalf of the Applicant, and Dr. M. Khan, physiatrist, who testified on behalf of the Respondent, both concluded that the Applicant suffers from chronic pain syndrome or some form of chronic pain condition. Dr. Berbrayer assessed the Applicant on two occasions and produced reports dated November 22, 2018 and February 6, 2020. In the November 2018 report, Dr. Berbrayer determined that the Applicant suffered from chronic pain syndrome and was predominantly impaired by myofascial upper back and bilateral shoulder pain and mechanical lower back pain with radiculopathy down the right leg. Also in that report, Dr. Berbrayer recorded that the Applicant complained of numbness and tingling in his right hand with an occasional tremor. Later investigations revealed that the Applicant’s right-hand issues were identified as an action tremor which Dr. Berbrayer agreed was not accident-related.

27Dr. Berbrayer concluded that the Applicant’s back and shoulder pain limits his overall mobility and ability to sit or stand for prolonged periods. Because of this, Dr. Berbrayer opined that the Applicant was not fit to return to full-time duties in 2018, was operating at his maximum functionality, and that he would deteriorate over time. For the most part, Dr. Berbrayer’s opinion remained the same after the second assessment, in 2020. His prognosis in that report was guarded because he felt that the Applicant’s symptoms will continue to persist and that he would deteriorate over time due to degenerative changes associated with aging. In testimony, Dr. Berbrayer agreed that the Applicant’s limited sit tolerance is self-reported and that the Applicant is not medically restricted from working; however, he also testified that he felt he would have reported that the Applicant could increase his working duties if that were determined during the assessment.

28Dr. Khan assessed the Applicant on behalf of the Respondent and issued a report dated September 16, 2018. Dr. Khan reported that the Applicant should return to his regular day to day activities and, during testimony, said that the Applicant’s physical injuries were not disabling and that his prognosis for the Applicant was generally favourable. He found no pathology in which to impose workplace limitations. Dr. Khan testified that the Applicant will not further injure himself due to prolonged sitting and that he may employ coping techniques such as stretching, changing positions, using pain medication, or taking advantage of ergonomic devices. Dr. Khan recognized the Applicant’s pain complaints, going so far as to agree that an accident-related pain syndrome is preventing a return to full activities and agreed that it is possible pain can impact information processing, judgement, concentration, and focus. However, he felt that opining on the psychological component, such as the impact to the Applicant’s information processing, judgement, concentration and focus, is outside of his scope. Dr. Khan maintained that the Applicant should engage in stretching and exercise and to return to regular day to day activity as soon as possible and recommended that the Applicant engage in yoga or Pilates. During testimony, Dr. Khan suggested that a lack of exercise or activity will likely result in deconditioning and a loss of stamina or endurance.

29I prefer Dr. Khan’s opinion over Dr. Berbrayer. In his report, Dr. Berbrayer mostly re-stated the Applicant’s complaints when addressing his ability to work. During testimony, Dr. Berbrayer stated that he felt that the Applicant was not fit to return to work on full-time hours and duties (but agreed that no records state he was medically restricted from work or that he would be harmed by continuing to work). Dr. Berbrayer declined to opine on the Applicant’s fatigue and lack of concentration and noted that he would rely on a psychologist to evaluate those reported symptoms. Dr. Berbrayer never opined in the report that the Applicant could increase his hours but testified that the report would’ve indicated so if that was the case. Likewise, Dr. Berbrayer agreed that he made no comment on whether the Applicant could continue working at his current capacity.

30I find insufficient evidence to demonstrate that the Applicant’s information processing, judgement, concentration, and focus are impaired as a result of chronic pain syndrome or a chronic pain condition. The Applicant testified that the pain in his back and shoulder preclude him from completing a full workday. He testified that he has an inability to concentrate when experiencing fatigue and must take pain medication before work and usually experiences fatigue in the early afternoon, between 1:00-3:00 p.m. The Applicant renegotiated his role and duties with his employer as a result of his accident-related issues, the result being that he maintained the same title as pre-accident, but has less responsibility. He reduced his weekly work hours from 40 to about 25 hours per week, stopped overseas travel, and believes that he was not assigned to lead a new project because he could not travel overseas for meetings related to the project.

31The Applicant’s testimony is credible but is not evidence of a complete inability to engage in suitable employment. Consider, the Applicant returned to work in a similar role, at the same pay rate which is commensurate with his reduced working hours. The Applicant’s reports regarding his issues with his information processing, judgement, concentration, and focus, are broad and fall short or meeting the test considering no medical practitioner has assessed these impairments and the Applicant has returned to work.

32No medical practitioner has assessed whether the Applicant is impaired from working due to psychological symptoms such as information processing, judgement, concentration, and focus impairments. Dr. Berbrayer testified that he observed psychological symptoms exhibited by the Applicant but diagnosed no psychological issues as they are outside of his scope. Similarly, Dr. Khan would not opine on whether the Applicant suffers from psychological impairments because they fall outside of his scope or practice. Neither party sought the opinion of a psychologist as it relates to the Applicant’s psychological impairments and the Applicant’s family physician records include no compelling assessment of the Applicant’s psychological health.

33The testimony by the CFO at the Applicant’s employer suggests that the Applicant does not have a complete inability to engage in suitable work. The CFO described the Applicant as valuable and loyal and is someone who lessens her workload. The CFO spoke about a decrease in the Applicant’s responsibilities at work, post-accident, the biggest change being the decrease in the number of people directly reporting to him. Instead, those people now report to the company President. Other changes to his role or duties include fewer meetings with the president of the company, no more overseas travel, and a reduction in working hours. She stated that the Applicant remains involved in new projects but not as much as prior to the accident. However, the CFO also testified that the Applicant remains an after-hours contact for the business despite each department having a dedicated after-hours contact. In conclusion, she agreed that keeping the right people is important to maintain a high level of success and that it included keeping the Applicant as an employee.

34I find that the reports and testimony from vocational experts does not demonstrate that the Applicant suffers a complete inability to engage in suitable employment.

35Mr. D. Remedios assessed the Applicant and produced a report dated January 27, 2020. The purpose of the assessment was to evaluate the Applicant’s employability, specifically his aptitudes and ability to learn. He concluded that the Applicant, if not working at his current place of employment, would not be a suitable candidate to return to any other form of competitive gainful employment due to physical neck pain, poor sleep, chronic fatigue, and pain. Mr. Remedios is not a medical practitioner and is unable to render a medical diagnosis.

36I find the Remedios report uncompelling as it pertains to the post-104 test. On a surface-level analysis, one can conclude from the report that the Applicant does not meet the post-104 test because, as the report acknowledges, the Applicant has returned to and is currently at his pre-accident employment.

37A deeper analysis suggests that the Applicant is able to engage in suitable employment. Mr. Remedios characterized the Applicant as very intelligent and well-spoken, multilingual, and driven. The Remedios report states that the Applicant complained of memory difficulties and limited concentration when overwhelmed with pain. The report notes that the Applicant appeared to have difficulty remaining comfortable during the process and was easily distracted when doing certain surveys during formal testing. Mr. Remedios testified that he felt that the Applicant had decision making and processing issues due to chronic pain and that it would be almost impossible to maintain employment with a new employer. Mr. Remedios noted that the Applicant complained of difficulties with his “working memory”, becoming increasingly forgetful and absent-minded, and has limited concentration and cognitive focus while engaged in multi-tasking events or complex cognitive situations. Yet, Mr. Remedios found that the Applicant tested very well. The Wonderlic Cognitive Ability test was completed without any cognitive difficulties or complaints. He also felt that the Applicant responded positively when completing the aptitude model but was reported to have some difficulty with reading speed and distraction during the interest and temperament modules. In testimony, Mr. Remedios stated that the Applicant was employable, in some capacity, but he was concerned with the Applicant’s ability to maintain employment or reemploy in the event he loses his current position.

38Aptitude testing conducted by Mr. Remedios found that the Applicant had unrestricted formal and informal learning mechanisms with respect to cognitive and perceptual aptitudes. From a skills perspective, Mr. Remedios stated that the Applicant scored in the “slightly below average” range for motor skills, finger dexterity, and manual dexterity. He also finds the Applicant’s training to be outdated, noting that he has not engaged in any additional skills training since 2000. Mr. Remedios felt that the Applicant will push himself as far as he can to ensure the job is done right. However, he was unsure how long the Applicant can work without experiencing cognitive decline. Mr. Remedios testified that he believed that the Applicant was struggling at work while on reduced hours and felt that he would probably get worse over time.

39The Remedios vocational report does not provide compelling evidence of cognitive impairments which would equate a substantial inability to perform the essential tasks of employment. The report noted that the Applicant exhibited no cognitive difficulties on testing and unrestricted formal and informal learning mechanics. The other relevant cognitive findings were that the Applicant was observed to be easily distracted during testing and in the 46th percentile for cognitive factors such as reasoning, verbal and numeric intelligence. I find it contradictory to report no cognitive difficulties on testing and a remarkable adaptability and ability to learn, but still conclude that difficulty with forgetfulness, limited concentration and cognitive focus will likely act as a barrier to maintain competitive employment.

40Dr. Holland’s IE reports dated July 11, 2018 conclude that the Applicant exhibits stooping deficits and has issues with prolonged sitting. An assessment of the Applicant’s employment found that it was largely cognitive, involving the use of a computer and participating in meetings. In testimony, Dr. Holland deferred to Dr. Khan with regards to any opinion on whether the Applicant could work full-time hours, though he inferred that a modified workstation would benefit the Applicant.

41The Applicant is not medically restricted from working. As noted by Dr. Berbrayer and Dr. Khan, the Applicant had no medical restrictions to return to work. No medial practitioner has opined that returning to work would harm the Applicant. The Applicant testified that he attempted to use assistive devices in the workplace by using devices from other employee’s offices, but found them unhelpful. However, this does not usurp the benefit of having a proper medical professional assess the Applicant’s workspace and provide accommodation recommendations, such as a modified workstation as suggested by Dr. Holland in testimony. Notably, the CFO confirmed that there are no employment records which speak to the Applicant’s ability to work or a need for any accommodations such as reduced working hours.

42I find on the evidence that the Applicant is not impaired from completing his work tasks due to physical injuries. The Applicant’s most relevant physical impairment is an inability to sit for prolonged periods. He suggests that his employment requires prolonged use of a computer, which requires him to sit for the duration. To me, his employment requires him to use a computer, which can be done without prolonged sitting. As suggested by Dr. Holland, it appears that the Applicant would benefit from devices in the workplace that would allow him to use a computer while either sitting or standing and other assistive devices for the modern office space. He can also take breaks from sitting and is able to do stretches in his personal office, as required.

43From a physical perspective, virtually all medical professionals involved in the Applicant’s case recommended that he engage in exercise to address his soft-tissue injuries and that it would have a positive impact on him. It is difficult to know for certain if the Applicant would be able to work longer hours if he engaged in an exercise program as recommended; however, I conclude from the reports and testimony of the medical professionals at this hearing that ongoing exercise would benefit the Applicant and it is worth pursuing in order to increase his stamina. Unfortunately, the Applicant stopped facility-based treatment in November of 2019, despite having funding for it, and does not engage in at-home exercises. I acknowledge that the Applicant testified that he stopped treatment because of the COVID-19 pandemic and his inability to complete the recommended physical exercises and strength training alone, and that he restricted his post-accident treatment to stretching and no other modality. To me, the recommendations from the medical professionals are paramount to the Applicant’s complaints.

44The Applicant has mostly maintained his status and reward from employment, despite the changes to his employment. The Applicant maintained his title with the company and continues to manage employees and be an after-hours contact for the company, albeit to a lesser extent than prior to the accident. The Applicant returned to his previous role, albeit with reduced duties and two-thirds hours. However, his status and reward remain virtually the same. The Applicant’s rate of pay remains the same and has been reduced to two-thirds due to his reduced working hours. Yet, the Applicant’s reduced working hours is not based on a medically recommended restriction.

45The Applicant has not established that working full-time hours is required for his role as a Vice President, Operations, and that an inability to work full-time hours equates to a complete inability to engage in suitable work. In fact, the Applicant has established that, by returning to work, he can be successful in the role at his current two-thirds capacity.

46In the end, the Applicant is concerned for himself and his family considering he is the primary earner, and seeks a safety net in the event he is no longer employed by his current employer. These are valid concerns in light of the Applicant’s chronic pain syndrome and other health issues unrelated to the accident. Yet, the Applicant has returned to work, albeit at two-thirds his full-time hours. Thus, he has demonstrated that he does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. He has demonstrated that an employer, acting rationally, would employ him in the same or similar capacity. The Applicant’s claims of cognitive issues impairing his ability to work are not supported by any compelling medical evidence or opinion. Thus, I find that the Applicant is not entitled to IRBs as claimed.

CONCLUSION

47The Applicant was involved in a rear-end collision and sustained sprain and strain injuries to the back, neck, and shoulders, which have developed into chronic pain syndrome.

48However, I find that the Applicant has not met his onus to prove that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. He does not meet the test for post-104 IRBs that he claims and therefore I dismiss this application.

Footnotes

1. 12018 CanLII 140991 (ON LAT)