Vinod Kumar v. Aviva Insurance Company, 2023 CanLII 15063

Citation: Kumar v. Aviva Insurance Company, 2023 ONLAT 21-002087/AABS

Licence Appeal Tribunal File Number: 21-002087/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:

Vinod Kumar

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Vinod Kumar, Applicant

Cary Schneider, Counsel

For the Respondent:

Aviva Insurance Company

Parthenia Magharious, Counsel

Interpreter (Punjabi language):

Arshad Hashmi

Court Reporter:

Jason Evelyn

HEARD: by Videoconference:

September 6 to 8, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on September 13, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2On September 13, 2018, the applicant was a passenger on a transit bus which was rear-ended. He was able to leave the vehicle independently. Police and emergency services attended the scene, transporting the applicant to the William Osler Emergency Department for an assessment following complaints of neck, shoulder and back pain.

ISSUES

3The issues in dispute are:

(a) Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from January 13, 2021, to date and ongoing?

(b) Is the applicant entitled to interest on any overdue payments?

(c) Is the applicant entitled to an award under section 10 of the Regulations?

RESULT

4I find that the applicant is not entitled to an IRB for the period in dispute, as he has not satisfied his onus to prove, on a balance of probabilities, that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

5The applicant is, therefore, not entitled to interest or an award under section 10 of the Regulations.

OVERVIEW

6Within 104 weeks of the accident, an income replacement benefit was paid by the insurer on the basis of a Disability Certificate OCF-3,¹ completed by Physiotherapist Gursharan Khaira of Northview Physiotherapy, listing the injuries to the applicant as sprain and strain to cervical spine, lumbar spine, shoulder joint, hip, sacroiliac joint, ribs, sternum, pain in thoracic spine, dizziness and giddiness. The Physiotherapist determined that the applicant was substantially unable to perform the essential tasks of his employment and could not return to work on modified duties.

7The applicant was paid a pre-104 week IRB until the respondent completed Insurer’s Examinations (“IE”s) determining that the applicant was not substantially unable to perform the essential tasks of his pre-accident employment.² In correspondence from Aviva dated January 10, 2021,³ Aviva stopped paying IRB’s on January 13, 2021, following a section 44 IE Orthopaedic Surgery Assessment by Dr. Jacqueline Auguste, dated July 15, 2020, and Psychology Assessment by Dr. Jonathan Seigel, dated September 2, 2020, which opine and conclude that the applicant does not suffer a substantial inability to complete the essential tasks of his pre-existing employment. The respondent communicated in correspondence dated October 26, 2020, that because 104 weeks had past since the accident, in the event that the applicant applied for an IRB following payment of the pre-104 week IRB, the post-104 IRB test would apply.⁴ The applicant applied for a post-104 week IRB on February 19, 2021.

PREVIOUS TRAINING, EDUCATION, AND EXPERIENCE

8At the time of the accident, the applicant was employed by a construction company, packing and assembling fencing parts, wooden skids, and cutting steel. The applicant testified that he has a Grade Eight level of education, and his first language is Punjabi. He testified that since his arrival in Canada, he held a series of positions performing manual labour, construction and as a machine operator.

9The applicant testified that he is unable to meet the physical demands of his pre-accident employment and his transferrable skills are limited by language and education. He testified that he suffers from chronic pain syndrome and that he suffered a fracture to his thoracic spine resulting from the subject accident.

SUBMISSIONS & LEGAL ANALYSIS

10To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, because of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test. To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate 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 previously stated, there was a stoppage of the IRBs as of January 13, 2021, following section 44 IEs concluding that the applicant did not suffer a substantial inability to complete the essential tasks of his pre-existing employment, which is the pre-104 test.

11The applicant submits that the accident caused a T11 fracture of the vertebrae, and that the fracture will cause accelerated deterioration of the thoracic spine, in addition the applicant submits that the accident caused him Chronic Pain Syndrome. The applicant submits that he suffers from depression and Post Traumatic Stress Disorder (“PTSD”) as a result of the accident, in addition persistent somatic disorder with severe predominant pain, situational vehicular phobia, and Chronic Adjustment Disorder with Mixed Disturbance of his emotions and conduct. However, the applicant provided insufficient evidence, on a balance of probabilities, demonstrating how the alleged impairments resulted in a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the accident. The applicant’s submissions relate to physical and psychological impairments alone without addressing the nexus to the alleged inability to engage in any employment which he is reasonably suited for.

12The applicant submits that no IE was completed respecting the applicant’s alleged Chronic Pain Syndrome, and that Dr. Jacqueline Auguste, who completed an Orthopaedic Surgery Assessment, is not an expert qualified to testify relating to Chronic Pain Syndrome. Dr. Auguste described in her report, that at the time of her report issued on June 14, 2021, that she had considered the report by Dr. Wong dated September 18, 2020. Dr. Auguste tesified respecting Dr. Wong’s findings in each of his reports, including his addendum report of February 5, 2021.

13The respondent submits that the applicant was determined by the previously referenced IEs of Dr. Jacqueline Auguste, and Dr. Jonathan Seigel, not to suffer a substantial inability to perform the essential tasks of his pre-accident employment. The insurer did not complete IEs to determine post-104 IRBs, however, the IE assessments prepared by Dr. Auguste issued on June 14, 2021, and the report by Dr. Seigel issued on August 13, 2021, were prepared several months following the appeal by the applicant applying for post-104 IRB’s (application dated on February 19, 2021). The IE reports are in response to treatment plans, however, the IE reports consider the reports of Dr. Wong and Dr. Waxer respecting the applicant’s reported impairments, and Dr. Auguste and Dr. Seigel’s reports offer more recent medical and psychological findings.

14The respondent submits that the applicant offered no evidence during the examination-in-chief respecting suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. Other than alleging injuries sustained as a result of the accident, on a balance of probabilities, the applicant did not lead sufficient evidence describing the extent to which he suffers a complete inability to pursue any employment or self-employment for which he is reasonably suited by education, training or experience. The applicant referred to having experience as a store clerk in India before he immigrated to Canada, but as submitted by the respondent, no evidence or other prospective employment-related information was led by the applicant respecting the possibility of pursuing other types of employment he would be suited for by training or experience and the IE reports opine, as stated, that the applicant is capable of resuming his pre-accident employment. The respondent submits that the claim fails on the basis alone of no evidence being led by the applicant respecting the post-104 week IRB test pertaining to a complete inability to pursue any employment or self-employment for which he is reasonably suited by education, training or experience.

15The respondent argues that the applicant can return to work. Aviva conducted Insurance Examinations in 2019 to assess the applicant’s entitlement to IRBs. Mr. Robert Bullard, Registered Kinesiologist, assessed the applicant on March 19, 2019,⁵ with the assistance of an interpreter, by conducting functional capacity tests. The applicant did not provide a full employment history to Mr. Bullard, including his employment in India before he came to Canada where he was employed full-time as a retail salesclerk at a jewellery store, which he described to Dr. Seigel as his employment for a fifteen-year period. The applicant provided more detailed information regarding his vocational experience to Dr. Seigel for the purpose of a Psychological Assessment completed on September 2, 2020, than he did to Mr. Bullard for the purpose of functional testing.⁶

16In addition, despite having the opportunity to address vocational testing with Mr. Bullard for the purpose of the IE, the applicant did not attempt the majority of the functional tasks nor did he provide an accurate and detailed work history as mentioned. The only occupational category provided by the applicant to Mr. Bullard was that of Construction Trades Helper and Laborer. The applicant was self-limited throughout the functional testing in that category, resulting in insufficient valid data to provide an accurate vocational and functional finding for the purpose of the IE. Because the applicant declined most components of the Kinesiologist’s evaluation, Mr. Bullard was unable to objectively identify limitations respecting the applicant’s pre-accident employment. The Tribunal notes the lack of evidence provided by the applicant with a nexus to the post-104 test of a complete inability to do any employment that he is reasonably suited for; in addition, the Tribunal notes the applicant’s lack of cooperation and unwillingness in the provision of reliable information for the purpose of the functional testing by the Kinesiologist. It was the opinion of Mr. Bullard that the capabilities that the applicant demonstrated during the IE assessment were not an accurate representation of the applicant’s capabilities.

17The IE assessments by Dr. Jacqueline Auguste and Dr. Jonathan Seigel⁷ respond to the Insurance Company’s inquiry whether an IRB is payable within 104 weeks of the accident, and whether the applicant meets the pre-104 week IRB test. It was determined by the noted IE assessments that the applicant was not substantially unable to perform the essential tasks of his employment and could return to his pre-accident employment. The respondent takes the position that the applicant does not meet either the pre-104 test of substantial inability to perform the essential tasks of pre-accident employment nor the post-104 test of a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the accident. The Tribunal agrees with the respondent’s submissions for reasons that follow.

18The applicant’s failure to participate and take advantage of functional testing performed by Mr. Robert Bullard does not assist the Tribunal in assessing the branch of the post-104 test related to the applicant’s capability to engage in any employment for which he is reasonably suited by education, training or experience. The applicant advanced negligible vocational evidence addressing his education, training or experience and the applicant’s submission of a complete inability to pursue any employment or self-employment for which he is reasonably suited by education, training or experience, was not supported by evidence. In order to meet the burden of proof the applicant is required to provide vocational evidence which takes into account the applicant’s educational background, skills and employment experience in relation to the job market and supports the applicant’s position that he suffers a complete inability to engage in any employment he is reasonably suited for. The failure to provide the evidence as described in the respondent’s submissions, weighs against the Tribunal finding that the applicant has met the burden of proof that he suffers from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. The Tribunal finds, on a balance of probabilities, that the claim fails to address with persuasive evidence the post-104 week IRB test.

PHYSICAL IMPAIRMENTS

19In reviewing the Clinical Notes and Records (“CNR”s) of the applicant’s family physician Dr. K. Myat,⁸ the applicant is described as a diabetic, who before the accident suffers “chronic back pain” improved by massage (CNRs of Dr. Myat dated January 28, 2018).⁹ Pre-accident, the applicant reports a workplace accident where his left thumb was injured, for which he was hospitalized and a plaster cast placed on his forearm and left thumb (CNRs of Dr. Myat dated May 31, 2018). Dr. Frank Loritz mentions that the employer reported that while cutting wood with a saw, wood bounced off the saw and hit the applicant’s left thumb.¹⁰ By August 4, 2018, the applicant reported that following the workplace injury, he will return to work within a month’s time with modified duties. The applicant reported the motor vehicle accident to his family physician on September 19, 2018, after which he describes back pain at subsequent visits.

20Dr. Wong opines in a report issued on February 5, 2021,¹¹ that the applicant’s chronic middle back pain and spinal fracture of the T11 vertebra is a result of the accident, referencing a CT scan of the applicant’s thoracic spine, and the report by a Dr. Lansang. The Tribunal places less weight on Dr. Wong’s report because the Physiatrist states that he referenced Dr. Myat’s CNRs, in making his causation finding, which CNR’s contain information in contradiction to the Physiatrist’s causation finding.¹² Dr. Wong makes the causation finding in his report that the applicant had no chronic back pain before the accident. However, the CNRs of Dr. Myat specifically reference the applicant’s complaints of chronic back pain before the accident (CNR dated on January 28, 2018). Therefore, the Tribunal places less weight on Dr. Wong’s opinion relating to the causation of the applicant’s impairments being the accident and his finding of chronic pain syndrome. The Tribunal places greater weight on the findings of Dr. Jacqueline Auguste respecting causation. Dr. Wong was not called as a witness to address the inconsistency within his medical opinion relating to the information in the family doctor Dr. Myat’s CNRs.¹³ In addition, in the context of Dr. Jonathan Seigel’s assessment interview with the applicant,¹⁴ the applicant stated that he had pain in his lower back and neck before the subject accident as a result of heavy lifting at work, which pain he managed with medication.

21The respondent relied on the Orthopaedic Assessment Report and in person testimony of Dr. Jacqueline Auguste, Orthopaedic Surgeon.¹⁵ As a result of the assessment conducted, Dr. Auguste found, with a review of diagnostic imaging and an x-ray dated November 13, 2018, that the applicant’s sacroiliac joints, pelvis, and lumbar spine, show evidence of a mild degree of degenerative disc disease in the lumbar spine. On an x-ray dated July 27, 2019, anterior and lateral osteophytes at all levels of the thoracic spine from T8 to T12 show evidence of degenerative disc disease, in addition to a slight anterior compression of the T11 vertebra.¹⁶ Dr. Auguste found that the applicant suffered a lumbar strain/sprain at the time of the accident, in the face of underlying pre-existing degenerative changes through the thoracolumbar spine. Dr. Auguste found no clinical evidence of shoulder injuries and on orthopaedic testing, no validated impairments causally linked to the accident. She addressed in her two assessments, that in her opinion, the applicant did not suffer a substantial inability to perform the essential tasks of pre-accident employment.¹⁷

22The Tribunal agrees with the respondent that the applicant did not provide sufficient evidence on a balance of probabilities demonstrating a complete inability to engage in any employment or self-employment for which the applicant is reasonably suited by education, training or experience nor preventing the applicant’s return to his pre-accident employment. Dr. Auguste opined based on her examination of the applicant that he was self-limited and pain-focused. The applicant displayed 5/5 indicators of nonorganic pain on Waddell’s scale.¹⁸ Dr. Auguste offered in person testimony regarding what she observed in her examination of the applicant that his exaggerated pain responses had a non-organic basis, meaning that there was no objective basis in terms of physical impairments to support the applicant’s self-reported exaggerated indications of pain. She testified that the applicant under-represented his functional abilities on examination and alleged pain without an objective basis.

23Significantly, Dr. Auguste testified that the fracture to the T11 vertebra, described by the applicant as a direct result of the accident, is a flexion injury unlikely to result from the motion described by the applicant at the time of the accident. The applicant described being thrown forward in his seat on the bus and grabbing the front of the seat directly ahead of him without falling off his seat or hitting his head. The applicant testified that he did not fall off the seat of the bus at the time of impact when the bus was rear-ended. The ambulance report describes the bus travelling at a slow speed at the time of impact and minimal damage as a result of the bus collision, when the applicant was a passenger. Dr. Auguste opined that a fracture to T11 vertebra would occur if an individual fell forward from an upright position, rather than moved forward from a seated position and in the circumstances described by the applicant. In addition, Dr. Auguste opined that there would have been inflammation around the T11 vertebra visible in the diagnostic imaging performed on January 30, 2019, by MRI, had the fracture to the T11 vertebra been caused by the motor vehicle accident.¹⁹ I prefer the evidence of Dr. Auguste to Dr. Wong, as she thoroughly explains the basis for her objective findings with reference to diagnostic tests during her examination-in-chief. I am persuaded that the fracture to the T11 vertebra was not caused by the accident and the applicant is exaggerating pain symptoms without an objective basis as described in Dr. Auguste’s evidence.

24Dr. Auguste opined that although the applicant may have suffered a mild anterior wedge compression fracture of the T11 vertebra, that healing times for this type of injury range from nine to twelve weeks. Dr. Auguste opined that there was no compelling clinical evidence of any validated impairments causally linked to the subject accident. The Tribunal places evidentiary weight on Dr. Auguste’s evidence by reason of her comprehensive review of clinical notes and records and reports as listed in her assessments.

25The issue of the applicant exaggerating his pain symptoms and the question of malingering was addressed in the psychological assessment of Dr. P.H. Waxer,²⁰ where, although Dr. Waxer did not opine directly that the applicant was malingering or misrepresenting information, Dr. Waxer does opine that it was evident on the basis of testing that the applicant engaged in exaggeration of his pain symptoms.²¹ On the basis of Dr. Waxer’s opinion following the administration of memory malingering testing that the applicant is exaggerating his pain symptoms, in addition and most significantly, on the basis of Dr. Jacqueline Auguste’s expert evidence delivered at the hearing and in her reports, I find that the applicant’s self-reports of pain are not a reliable indicator of his objective condition and I prefer the evidence of Dr. Auguste regarding the applicant’s Waddel scale level, which is corroborated by the psychological testing of the applicant by Dr. Waxer opining on results that demonstrate that the applicant exaggerates his experience of pain.

26I am persuaded by the evidence of Dr. Auguste, in addition taking into consideration the previous documented pre-accident chronic back pain described in the CNRs of Dr. Myat, that the applicant’s alleged issues with chronic pain do not have a causal nexus to the motor vehicle accident. In addition, given Dr. Auguste’s evidence that there were no objective validated impairments causally linked to the subject accident and no compelling clinical evidence of any residual exacerbations of pre-existing conditions, that the Tribunal agrees with the respondent’s submission that the causal connection between the applicant’s entitlement to an income replacement benefit has not been made out and as such I find that the applicant is not entitled to the income replacement benefit claimed under either the pre-104 test or the post-104 test. In addition, as stated, there was negligible evidence provided by the applicant to establish a nexus to the post-104 test of a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience. The applicant provided little evidence of a nexus to the post-104 test by means of vocational information referencing his employment experience and training although he had the opportunity to do so with Mr. Robert Bullard, as earlier referenced. I find that the applicant has failed to address even a nexus to the question of how his alleged impairments prevent him from completing the essential tasks of his pre-accident employment. In addition, the applicant failed to establish 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. The Tribunal finds that the applicant is not entitled to post-104 week IRBs.

27I do not find the applicant suffers from chronic pain syndrome based on Dr. Wong’s report. After reviewing Dr. Wong’s report, Dr. Auguste’s opinion remained unchanged, from what is stated in her addendum report and on examination and cross-examination at the hearing. She found that the applicant’s self-reported physical impairments were not objectively based following her examination.²² I also do not find evidence to support a finding of the applicant suffering Chronic Pain Syndrome, on a balance of probabilities, having reviewed the consultation report and CNR’s of Dr. Farhan Siddiqui, which, consist of the applicant self-reporting pain without Dr. Siddiqui being employed to perform a comprehensive section 25 assessment of the applicant’s medical records and expert reports, as was the case with Dr. Auguste. The report prepared by Dr. Farhan Siddiqui on November 2, 2021, opines that the applicant’s self-reported chronic pain may be addressed by chronic pain self-management, which remained pending in the last CNR in evidence from Dr. Siddiqui dated on April 26, 2022. The applicant received treatment from Dr. Siddiqui who in the latest CNR dated April 26, 2022, recommends stretching and yoga to the applicant. Dr. Siddiqui regularly recommends exercise as treatment to the applicant in Dr. Siddiqui’s CNRs. Dr. Siddiqui notes in the CNR dated February 22, 2022, that the applicant has stopped his prescription for Tylenol 3 medication and Cymbalta. I do not find there is persuasive evidence of the existence of Chronic Pain Syndrome provided by the applicant.

28The applicant is entitled to an income replacement benefit only if the accident caused him to sustain an impairment that renders him completely unable to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. As stated, the IEs determined that the applicant did not meet the pre-104 IRB test relating to a substantial inability to perform the essential tasks of the applicant’s pre-accident employment. The applicant would only be entitled to a post-104 income replacement benefit if the accident caused him to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.²³ The Tribunal finds that the claim fails to address with persuasive evidence the post-104 week IRB test for the reasons stated.

Psychological Impairments

29The applicant refers to psychological impairments, contributing to his complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. Dr. P. Waxer opines on July 20, 2019, in his assessment that the applicant suffers Persistent Somatic Symptom Disorder, a Specific Phobia of Vehicular Situations, and Chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.²⁴ Dr. Waxer opines in July 2019, that the applicant’s level of emotional distress constitutes a substantial psychological impairment interfering with his efforts to return to gainful employment and to return to his previous activities. At the time when Dr. Waxer interviewed the applicant, the applicant’s wife interpreted from the Hindi language rather than an interpreter being available. Beyond the issue of interpretation by a family member influencing the reliability of the information provided at the interview to Dr. Waxer, the information provided by the applicant in the report varies markedly from the applicant’s testimony at the hearing and the information the applicant provided regarding the circumstances of the accident in all other contexts in expert reports. Dr. Waxer reports that the applicant stated at his interview, that at the time of the accident, he was propelled onto the floor of the bus between the bus seats. This information is inconsistent with the applicant’s testimony in all other contexts, where the applicant states consistently that he remained in his seat at the time of the accident. This discrepancy and the issue with interpretation results in the Tribunal according Dr. Waxer’s opinion less probative weight than the assessments by Dr. Jonathan Seigel which is, in addition, more recent and Dr. Seigel, had an interpreter available at the interviews with the applicant on September 2, 2020, and on August 4, 2021, resulting in information and findings which the Tribunal finds more reliable.

30On November 4, 2019, Dr. Jagtaran Singh Dhaliwal²⁵ performed a Psychiatric Consultation with the applicant diagnosing a DSM-1 opining that what the applicant suffered from was not an adjustment disorder with anxiety nor depression nor a stress disorder, but rather that the applicant’s major symptoms related to depression and Post Traumatic Stress Disorder (PTSD) affecting his self-esteem. Dr. Dhaliwal opines, at the time of his assessment in November 2019, that the applicant requires more time before returning to his pre-accident employment as opposed to the applicant, over a year later, by January 13, 2021, being completely unable to engage in any employment for which he is reasonably suited by education, training or experience. Dr. Dhaliwal recommends psychotherapy to address issues with self-esteem. On September 2, 2020, Dr. Jonathan Seigel,²⁶ prepared a psychological report IE assessment where he opined that while the applicant reports a broad range of psychological adjustment difficulties associated with pain, there was an absence of overt signs of pain behaviours on interview. Dr. Seigel opined that the applicant does not have a substantial psychological disability as a direct result of the accident that would prevent him from carrying out his pre-accident work following the interview on September 2, 2020.

31Dr. Seigel opines in his most recent report that the applicant had symptoms of Somatic Symptom Disorder with Predominant Pain, with signs of symptom magnification. The applicant at the most recent examination with Dr. Seigel on August 4, 2021, would not respond to questionnaires in a reliable or valid manner. Dr. Seigel opines that it is reasonable to posit that the accident of September 13, 2018, exacerbated but was not the sole cause of symptoms associated with the diagnosis of Somatic Symptom Disorder following the workplace accident on May 31, 2018. Dr. Seigel noted that the applicant catastrophized about pain and that the degree of disability described by the applicant was at variance with information in the medical and rehabilitation file referencing the absence of any objective validated impairments (referencing the report by Dr. Auguste, Orthopaedic Surgeon, June 2, 2021). In his previous report addressing the pre-104 IRB test, Dr. Seigel arrived at the same diagnosis finding that the applicant does not suffer a substantial psychological disability as a result of the accident that would prevent him from carrying out his pre-accident work.

32The Tribunal prefers the opinion of Dr. Siegel by reason of the more recent nature of the assessment of the applicant’s mental health, determining that the applicant did not have a substantial psychological disability preventing his return to his pre-accident employment.²⁷ For the reasons noted, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the accident or by reason of any psychological disability.

CONCLUSION

33I find the applicant failed to meet his onus to prove that he is entitled to an IRB for the period in dispute nor that he has demonstrated that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the accident. Accordingly, no award or interest is payable.

Footnotes

1. 1Applicant’s Brief, Disability Certificate OCF-3 signed by Gursharan Khaira on October 22, 2018.
2. 2Respondent’s Brief, Aviva letter dated July 22, 2019, Tab 8.
3. 3Respondent’s Brief, letter from Aviva dated January 10, 2021, Tab 3.
4. 4Respondent’s Brief, letter from Aviva dared October 26, 2020, Tab 4.
5. 5Applicant’s Brief, Workwell Functional Capacity Evaluation, Dr. Robert Bullard, R. Kin..
6. 6Respondent’s Brief, Psychological Report of Dr. Jonathan Seigel, September 15, 2020.
7. 7Respondent’s Brief, Psychological Report of Dr. Jonathan Seigel, dated September 15, 2021.
8. 8Applicant’s Brief, Tab 3, Dr. Myat CNR’s from October 1, 2017 to March 14, 2022.
9. 9Ibid.
10. 10Respondent’s Brief, General Practitioner, Assessment of Dr. Frank Loritz, page 5 of 39.
11. 11Applicant’s Brief, Tab 9, Report of Dr. S.W. Wong, Allied-Medical Trauma Evaluations Inc., dated February 5, 2021.
12. 12Applicant’s Brief, Tab 3, Dr. Myat CNR’s from October 1, 2017 to March 14, 2022.
13. 13Applicant’s Brief, Tab 8, Report of Dr. S.W. Joseph Wong, Allied-Med Trauma Evaluations Inc., dated September 18, 2020, page 6.
14. 14Respondent’s Brief, Report of Dr. Jonathan Seigel, dated September 2, 2020, page 10 of 22.
15. 15Respondent’s Brief, Tab 12, Orthopaedic Surgery Assessment, Dr. Jacqueline Auguste, issued on September 15, 2020.
16. 16Ibid, Page 4 of 22.
17. 17Respondent’s Brief, Tab 14, Orthopaedic Surgery Assessment by Dr. Jacqueline Auguste, issued on June 14, 2021, page 3 to 5 of 10
18. 18Respondent’s Brief, Tab 14, Orthopaedic Surgery Assessment by Dr. Jacqueline Auguste, issued on June 14, 2021, page 3 to 5 of 10
19. 19Respondent’s Brief, Tab 14, Orthopaedic Surgery Assessment by Dr. Jacqueline Auguste, issued on June 14, 2021, page 5 of 10.
20. 20Applicant’s Brief, Tab 10, Assessment of Dr. P.H. Waxer, MediAssess Evaluations Inc., dated July 20, 2019.
21. 21Applicant’s Brief, Tab 10, Assessment of Dr. P.H. Waxer, MediAssess Evaluations Inc., dated July 20, 2019, p. 9, psychological testing section.
22. 22Respondent’s Brief, Tab 14, Orthopaedic Surgery Assessment by Dr. Jacqueline Auguste, issued on June 14, 2021, page 8 of 10.
23. 23Respondent’s Brief, Tab 14, Orthopaedic Surgery Assessment by Dr. Jacqueline Auguste, issued on June 14, 2021, page 3 to 5 of 10.
24. 24Applicant’s Brief, Tab 10, Dr. Waxer Psychological Report dated July 20, 2019.
25. 25Applicant’s Brief, Report of Dr. Jagtaran Singh Dhaliwal, Psychiatric Consultation, November 4, 2019.
26. 26Respondent’s Brief, Psychological Report of Dr. Jonathan Seigel, dated September 2, 2020, and August 4, 2021, issued on August 13, 2021.
27. 27Respondent’s Brief, Psychological Report of Dr. Jonathan Seigel, dated September 2, 2020, and dated August 4, 2021, issued on August 13, 2021.