Citation: Lemesko v. Aviva General Insurance, 2023 ONLAT 20-008063/AABS

Licence Appeal Tribunal File Number: 20-008063/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:

Pavlo Lemesko

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Marcello Novello, Paralegal

For the Respondent: Andrea Bandow, Counsel

HEARD By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on December 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the Aviva General Insurance, (“respondent”), and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be decided:

a. Is the applicant entitled to an income replacement benefit (“IRB”) of $400.00 per week from November 17, 2018 to date and ongoing?

b. Is the applicant entitled to $2,871.03 for other goods and services (fitness membership and personal training sessions), recommended by Ontario Independent Assessment Centre in a treatment plan (“OCF-18”) denied on January 16, 2019?

c. Is the applicant entitled to $2,200.00 for a chronic pain assessment, recommended by Ontario Independent Assessment Centre in OCF-18 denied on September 7, 2018?

d. Is the applicant entitled to $1,850.00 for a functional cognitive assessment, recommended by Ontario Independent Assessment Centre in an OCF-18 denied on April 15, 2019?

e. Is the applicant entitled to $5,950.00 for a neuropsychological assessment, recommended by Ontario Independent Assessment Centre in an OCF-18 denied on April 27, 2020?

f. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is not entitled to:

a. An IRB of $400.00 per week from November 17, 2018 to date and ongoing;

b. $2,871.03 for other goods and services;

c. $2,200.00 for a chronic pain assessment;

d. $1,850.00 for a functional cognitive assessment;

e. $5,950.00 for a neuropsychological assessment; and

f. Interest on any overdue payments of benefits.

ANALYSIS

Income Replacement Benefit

4I find that the applicant is not entitled to an IRB for the following reasons.

5Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)1(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of her employment or self-employment.

6Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

7The applicant bears the onus of demonstrating on a balance of probabilities that he is entitled to an IRB.²

8The applicant’s claim for an IRB is from November 17, 2018, and ongoing. The applicant submits that as a result of the accident, he suffers a pre-104 substantial inability and a post-104 complete inability to return to any employment as evidenced through his medical records. The applicant provides medical records from Dr. James Ferlisi, physician, dated December 11, 2017, Dr. Sonia Katyal, physician, dated December 12, 2017, with complaints of throbbing headaches, back, neck, and right knee pain. The applicant was also referred for a psychological assessment with Dr. Nina Belyakova, psychologist on August 13, 2018, which noted that the applicant suffered from post-accident psychological impairment. Despite the doctors that the applicant visited there is nothing in the medical reports that outline what his essential task is and how the applicant is unable to substantially perform those tasks as a result of his injuries.

9On September 23, 2020, the applicant underwent a neuropsychological assessment by Dr. David Kurzman, psychologist. Dr. Kurzman opined that the applicant sustained a mild traumatic brain injury and the applicant suffers a complete in ability to work in any capacity.

10The applicant acknowledged that following the accident he returned to the same employment he held at the time of the accident. His record of employment confirms he was employed with Toonbox Entertainment (“Toonbox”) as a senior visual effects technical director/artist until November 16, 2018, almost one full year after the accident.

11To further support his claim the applicant submits that he was terminated from by his employer Toonbox in November 2018 as they could not longer accommodate his need for ongoing modified duties and hours. No evidence from Toonbox was provided by the applicant to substantiate this explanation for his termination. Rather, the applicant’s record of employment from Toonbox states that the reason the applicant was laid off was “shortage of work/end of contract or season”³ and the applicant applied for regular EI benefits checking off “shortage of work” as the reason he was no longer working.⁴

12The respondent relies on D.D.D. v. RBC which provides that an applicant believed she was let go from her employment due to her impairments from the accident. However, no evidence was presented to support her position, leaving the Tribunal to conclude that the applicant was not laid off because of her inability to perform her employment tasks, noting that the applicant gave evidence that she was available for work even after she was laid off.⁵

13The respondent submits that in line with D.D.D., the applicant did not meet his burden to prove that he was let go from Toonbox because of his inability to perform his employment tasks as a result of the accident. Rather, the evidence before the Tribunal suggests that the applicant continued to work with Toonbox post-accident until he was laid off on November 16, 2018, due to a shortage of work. There is no evidence to suggest that the lay off was related to the impairments the applicant suffered as a result of the accident.

14Furthermore, the respondent relies on the clinical notes and records (“CNRs”) of Dr. Naidu, the applicant’s family doctor. The CNRs reveal that the applicant did not complain to Dr. Naidu of an inability to work due to his accident injuries, or that he reported his job performance was affected by accident-related injuries. Dr. Naidu did not recommend that the applicant not return to work or that the applicant only work modified hours or duties.

15The respondent relies on the Insurer’s Examinations of Dr. Mark Watson, neuropsychologist, dated March 26, 2020, and Dr. Mohammad Nikkhou, neuropsychologist, dated April 12, 2019.⁶ Both tests were concluded in person and the test results by Dr. Watson and Dr. Nikkhou did not confirm consistent and valid evidence of an accident-related formal cognitive diagnosis. The respondent submits that more weight should be afforded to these two conclusions then Dr. Kurzman’s report as that interview of the applicant was conducted virtually.

16Lastly, the respondent also highlights that the applicant returned to work on January 25, 2021 at another animation studio in a similar position to one that he held at Toonbox.

17In my view, I have no doubt that the applicant has suffered as a result of the accident. However, there must be contemporaneous evidence in support that his impairments prevent him from substantially performing the essential tasks of his employment. In reviewing the evidence before me, I find no evidence that suggests the applicant was terminated from Toonbox as a result of modifications required from the accident, all evidence suggests it was due to a shortage of work. Furthermore, the applicant has returned to work as of January 2021 in a similar position. I am not persuaded that the applicant has a substantial inability to perform the essential tasks of his employment.

18Since the applicant has not satisfied his onus that he is entitled to a pre-104 week IRB, he is therefore not entitled to claim a post-104 week IRB. Even if I were to find that the applicant met the substantial inability test to claim a pre-104 week IRB, I find that the evidence the applicant relies on does not support a claim that he has a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. Rather, the applicant has returned to work full-time at Tangent Animation, an animation studio, in a position similar to the one he held at the time of the accident.⁷ Therefore, I find that the applicant’s evidence does not support his claim for a post 104-week IRB.

19The applicant bears the onus of proving, on a balance of probabilities, that the proposed OCF-18s are reasonable and necessary. I find that the applicant has failed to meet his onus for the following reasons.

20The applicant did not submit into evidence any of the four disputed OCF-18s. The applicant’s submissions merely reference the goals of the treatment plans to vaguely include, pain reduction, increased range of motion, and increase in strength to achieve a return to activities of normal living, return to regular work duties and reduce functional intolerance. Each of the individuals who prepared the OCF-18 would have been asked to identify the goals of the proposed treatment, how the treatment will achieve those goals, and how the identified goals would be evaluated. There were no details of these questions in evidence.

21The respondent submits that this warrants a dismissal of all disputed OCF-18s. The respondent points me to Tribunal decision, 17-001309 v. Aviva Insurance Canada⁸ that provides OCF-18s are “of vital importance in determining whether proposed goods and services are reasonable and necessary.” 17-001309 v. Aviva Insurance Canada also refers to the criteria used by Financial Services Commission of Ontario arbitrators when determining whether treatment is reasonable and necessary. While this is not binding on me, I do find the criteria to be reasonable, including:

a. The treatment goals must be identified, the goals must be reasonable and should be met to a reasonable degree.

b. The treatment should be appropriate to the goals and to the person.

22As such, the respondent submits that the applicant’s failure to submit OCF-18s in evidence for a hearing deprives the Tribunal of its ability to fully and properly assess the reasonableness and necessity of the disputed plans, such that the applicant did not meet the onus of proving the OCF-18s are reasonable and necessary.

23In the reconsideration decision of J.R. v. Certas Home and Insurance Company,⁹ the Executive Chair stated:

Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured’s request, the Tribunal generally requires the same document in order to properly understand both the insured’s request and the insurer’s response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties’ dispute.¹⁰

24I find that in this matter I need the four OCF-18’s to be before me for a full and satisfactory understanding of the issue in dispute. I also find that I am not obligated to go back to the applicant for the OCF-18’s, as the applicant did not submit or rely on any details of the OCF-18s and made only vague submissions in evidence. It is unclear to me whether the applicant even meant to rely on the information contained within, and, therefore, this matter is similar to J.R. v. Certas.

25Furthermore, the applicant was put on notice on November 1, 2021, by the respondent that the OCF-18’s were not part of its application and the applicant had the option to provide reply submissions to include the OCF-18’s but failed to do so.

26The OCF-18 in my view is of vital importance in determining whether the proposed services are reasonable and necessary, as it would determine the goals of the proposed treatment, how the treatment would achieve those goals and how the identified goals would be evaluated. It has been previously held by this Tribunal that assertions, not supported by evidence, ought not to be considered.¹¹

27I am persuaded by the respondent’s submissions. I find that the applicant’s failure to submit the OCF-18s into his evidence for this hearing has deprived me of the ability to fully and properly assess the reasonableness and necessity of the disputed treatment plans. Accordingly, I find that the applicant has not met his onus of proving that the four treatment plans are reasonable and necessary.

Interest

28Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.

ORDER

29The application is dismissed, and I find the applicant is not entitled to: