Atuahene v. Aviva General Insurance, 2023 CanLII 19829

Licence Appeal Tribunal

Citation: Atuahene v. Aviva General Insurance, 2023 ONLAT 19-010563/AABS

Licence Appeal Tribunal File Number: 19-010563/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:

Kojo Atuahene

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Frank Grande, Counsel

For the Respondent: Catherine H. Zingg, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Kojo Atuahene, the applicant, was involved in an automobile accident on June 16, 2017, and sought benefits from Aviva General Insurance, the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent paid an income replacement benefit (“IRB”) to the applicant for the period from June 24, 2017 to February 4, 2019. The IRB was stopped effective February 4, 2019, based on insurer’s examination (“IE”) reports.

3Given the denial of further IRB, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to an IRB in the amount of $245.00 per week from February 4, 2019 to June 16, 2019?

ii. Is the applicant entitled to an IRB in the amount of $245.00 per week from June 17, 2019 to date and ongoing?

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

iv. Is the respondent entitled to costs pursuant to Rule 19.1 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission (effective October 2, 2017) (the “Common Rules”)?

RESULT

5The applicant is not entitled to an IRB, nor interest for the period(s) claimed.

6The respondent is not entitled to costs pursuant to Rule 19.1 of the Common Rules.

ANALYSIS

Income Replacement Benefits

Pre-104 IRB

7To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment (the pre-104 test). The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

Post-104 IRB

8To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

The applicant has failed to establish he suffered a substantial inability to perform the essential tasks of his employment

9I am not persuaded the applicant has established he qualifies for an IRB benefit for the pre-104 period from February 4, 2019 to June 16, 2019.

10The applicant submits he was self-employed as the sole-proprietor of a shipping and receiving business operated since 2002. He has since been unable to return to work following the accident. The essential tasks of his employment required heavy lifting of items up to 50 pounds.

11The respondent submits the applicant failed to meet the pre-104 test and relies upon the insurer’s examination reports that indicate he sustained no complex injuries in the accident.

12Dr. Y. Charko, chiropractor, completed a Disability Certificate (“OCF-3”), dated June 26, 2017 and indicated the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident, as a result of and within 104 weeks of the accident. The anticipated duration of this impairment was listed as 9-12 weeks. Injuries included strain/sprain of the applicant’s cervical, thoracic, lumbar spine, sacroiliac joint, and shoulder joint. The applicant was also suffering headache, lower back pain and sleep-related disorders.

13The clinical notes and records and diagnostic imaging provided do not support a finding that the applicant was substantially unable to engage in the essential tasks of his employment. The records of the applicant’s family physician, Dr. F. Asekhomhe, only include a solitary, post-accident entry dated June 18, 2017. Dr. Asekhomhe noted the applicant was suffering from shoulder, neck, and back pain following the accident and recommended physiotherapy, massage, and x-rays. Additionally, the applicant relies on only one set of x-rays dated June 20, 2017, of his cervical and lumbar spine which identified degenerative changes that were not linked to the accident. Neither of these documents make any link between accident-related pain and the test for pre-104 IRB.

14The two chronic pain assessment reports relied upon by the applicant are unpersuasive as they are based almost wholly on the applicant’s self-reporting. The first chronic pain assessment report provided by Dr. Pruzanski dated June 15, 2018 indicated he had “received a few medical documents regarding this patient”, but upon further examination, the totality of the post-accident documents consisted of the sole June 18, 2017 clinical note by Dr. Asekhomhe and the June 20, 2017 x-ray of the applicant’s spine. Dr. Pruzanski concluded that the applicant suffered a number of chronic conditions including a marked impairment of his left shoulder and lumbar spine, thus meeting the substantial inability test for IRB.

15Problematically, the second chronic pain report, provided by Dr. M. Abounaja dated February 15, 2021, is also based on virtually no medical records, citing only the records of Dr. Asekhomhe, the x-ray dated June 20, 2017, and the three IE reports relied upon by the respondent. He diagnosed the applicant with chronic pain disorder, chronic post-traumatic headache, chronic whiplash associated disorder type II, and sprain and strain of the cervical spine, left shoulder, left knee, thoracic spine, lumbar spine as well as depression and anxiety, post traumatic fatigue and insomnia. Dr. Abounaja agreed with Dr. Pruzanski’s assessment that the applicant met the substantial inability test for pre-104 IRB.

16However, the applicant has failed to provide the Tribunal with a description of the essential tasks of his self-employment as President of a shipping company. The most fulsome description of his employment is detailed in the Employee’s Confirmation Form (“OCF-2”) dated May 14, 2018, which stated his employment consisted of “loading and offloading of shipping containers, lifts up to 50 lbs”. Other than lifting and “heavy physical activity” noted by Dr. Pruzanski, the applicant has not provided a comprehensive description of the essential tasks of his employment in support of his claim for IRB. Otherwise, it is nearly impossible to assess the applicant’s ability to complete the tasks of employment without an accurate description of these tasks.

17Additionally, neither of the applicant’s chronic pain reports make any reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”) nor the criteria for helping to determine if the applicant suffers from accident-related chronic pain. Although not required, it would have been helpful for the reports to comment on whether the applicant demonstrated a functional impairment with regard to at least three of the six AMA Guides criteria to establish chronic pain.

18Conversely, the IE reports tendered by the respondent concluded the applicant was not entitled to an IRB. In his report dated January 10, 2019, Dr. Y. Marchuk, physiatrist, concluded the applicant suffered no substantial inability to perform the essential tasks of his pre-accident employment as a direct result of the accident. Dr. Marchuk noted there was minimal loss of range of motion to the cervical and lumbar spine, muscle strength was good, and there were no signs of complex injuries sustained relative to the accident. This accorded with the findings of Dr. M. Bhargava, orthopaedic surgeon, in his report dated January 10, 2019, where he concluded the applicant suffered soft-tissue injuries as a result of the accident, and that he had likely reached maximum medical improvement from facility-based therapy.

19In her psychological assessment report dated January 10, 2019, Dr. A. Syed, psychologist, noted no objective psychometric evidence to substantiate the applicant’s psychological complaints. She also concluded the applicant suffered no substantial inability to perform the essential tasks of his pre-accident employment. Dr. Syed identified validity concerns raised as a result of the psychometric testing. Following the administration of six psychometric tests, Dr. Syed noted the applicant may not have answered in a completely forthright manner, and his responses indicated he attempted to portray himself in a negative fashion. Specifically, the patterns demonstrated were relatively common among individuals feigning a mental disorder. I place significant weight upon Dr. Syed’s report, given that it was the sole uncontradicted psychological assessment tendered, and given the results of the validity measures undertaken as part of the psychometric testing conducted.

20Dr. Syed’s report accords with credibility concerns raised by other assessors over the applicant’s self-reporting. The applicant reported to all three IE assessors that he lost consciousness as a result of the impact. He reported to Dr. Syed that he was unconscious for 30 minutes following the accident. However, in his description of the accident to Dr. Abounaja and Dr. Pruzanski, he indicated he did not lose consciousness before exiting the vehicle. This was supported by the clinical notes and records of Mackenzie Medical Rehabilitation Centre. Although these notes are largely illegible, the notes from the initial chiropractic consult on June 26, 2017 (10 days post-accident) indicated the applicant reported no loss of consciousness immediately following the accident. The applicant was also inconsistent in providing an estimate of his hours of work relating to his pre-accident self-employment. He advised Dr. Bhargava he worked 40 hours a week but advised Dr. Syed he worked six days a week, from 8 am to 7 pm. Given the lack of compelling medical evidence, and the weight the assessors attributed to the self reporting, I must question the reliability of the applicant’s evidence. When combined with the potential of feigning identified by Dr. Syed, I place less weight upon the applicant’s evidence specific to the alleged impairments and the test for IRB.

21I place significant weight upon the IE reports provided by the respondent. While I am persuaded the applicant continued to suffer accident-related pain, it is apparent from the IE reports that the reported pain does not rise to the level of a substantial inability. Neither Dr. Marchuk nor Dr. Syed found the applicant demonstrated a substantial inability to perform the essential tasks of his pre-accident employment in order to meet the test for pre-104 IRB.

22Otherwise, the applicant has failed to meet his evidentiary burden in relation to his claim for IRB. The applicant provided no compelling medical evidence in support of his claim. Similarly, he provided no comprehensive description of the essential tasks of his self-employment as the President of a shipping company, nor the extent to which he was unable to perform these tasks. The applicant’s medical history, the mechanics of the accident, and his accident-related impairments described to Dr. Pruzanski and Dr. Abounaja were based almost wholly on the applicant’s self-reporting. However, the reliability of these reports was eroded by credibility issues, the potential of feigning, and the applicant’s own maladaptive beliefs related to his accident-related impairments raised in Dr. Syed’s psychological assessment. The respondent’s case was bolstered by compelling IE reports, which concluded the applicant did not suffer a substantial inability to perform the essential tasks of his employment.

23Given the totality of the evidence, I am not persuaded the applicant has satisfied the requirements of s. 5(1), as he has not established, he suffered a complete inability to perform the essential tasks of his employment. As a result, the applicant is not entitled to an IRB.

The applicant has failed to establish he suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited

24I am not persuaded the applicant has established he qualifies for an IRB benefit for the post-104-week period from June 17, 2019 to date and ongoing.

25The applicant has not established he met the substantial inability test in s. 5(1)2ii at any time since the stoppage of the benefits, to present, which includes the post-104 period. It logically follows that he does not meet the more onerous post-104 test of whether he suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience pursuant to s. 6(2)(b) of the Schedule.

26Given the applicant has failed to establish he met the substantial inability test in s. 5(1)2ii, no further analysis is required regarding the complete inability test for post-104 IRB. As neither IRB threshold has been met, no analysis of IRB quantum is required.

The applicant is not entitled to interest

27Given there are no outstanding or overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The respondent is not entitled to costs

28The respondent’s request for costs is denied.

29Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Common Rules. The threshold for costs is high, and they are rarely awarded. Although the initial in-person hearing was delayed by two adjournments, this written hearing was set on consent of the parties. Critically, the respondent has not demonstrated the applicant acted unreasonably or in bad faith in the adjudication of this application before the Tribunal. Thus, I am not persuaded a cost award is appropriate, and no costs shall be awarded.

ORDER

30The application is dismissed, and I find that:

i. The applicant is not entitled to an income replacement benefit for the period(s) claimed;

ii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule;

iii. The respondent is not entitled to costs pursuant to Rule 19.1 of the Common Rules.