Licence Appeal Tribunal File Number: 22-001163/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:
Tauhid Alam
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
VICE-CHAIR: Chloe Lester
APPEARANCES:
For the Applicant: Tom Thiru, Paralegal
For the Respondent: James Kolumbus, Counsel
Court Reporter: Nikita Ivachtchenko
Observer: Trina Morisette, Member
HEARD: by Videoconference: May 2, 2023
OVERVIEW
1Tauhid Alam, the applicant, was involved in a rear-end collision on September 29, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied income replacement benefits (IRB) by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an IRB in the amount of $400.00 per week from September 29, 2019, to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an IRB or interest. The application is dismissed.
PROCEDURAL ISSUES
4Two procedural issues arose at the beginning of the hearing.
5The first concerns the applicant’s request to include a one-page letter authored by Dr. Zakzanis, a psychologist. The applicant argues that this letter is highly probative because it speaks to his condition, and it is on that very basis of this document that the doctor will testify.
6The respondent argues that it is prejudiced if this document is admitted into evidence since it was never received as a part of disclosure. The respondent also submits that the report is not relevant because it does not give a formal diagnosis or give any opinions on the issues in dispute.
7Although this document was not formally disclosed as something the applicant was relying on for this hearing, the respondent admitted to receiving a copy of it during the adjustment of the claim. Since the letter allegedly refers to the condition of the applicant, I find that the document is relevant to the issues in dispute and, pursuant to s. 15(1) of the Statutory Powers Procedure Act and Rule 9.4 of the Tribunal’s Rules, order it admitted into evidence for this hearing. Since the respondent was unaware that this document would be relied upon as evidence, I heard the parties’ submissions regarding the weight it should receive in my decision.
8The second procedural issue concerns having two of the applicant’s witnesses testify in this hearing. The applicant, who had at various points during his claim been unrepresented, requested a summons for two doctors, Dr. Zakzanis and Dr. Kamel, to testify but did not advise the respondent of the requests. The respondent attended this hearing unaware that these witnesses were giving testimony.
9The applicant argued that the testimony of Dr. Zakzanis is relevant because he authored the letter regarding his condition and would speak to any psychological issues he is having. The applicant argued the second witness, Dr. Kamel, a nephrologist, is relevant to the issues in dispute because he would testify that the blood work lab results demonstrate that he has acidosis.
10The respondent objected to allowing these witnesses to testify because it had no opportunity to properly prepare a defence. The respondent argues it had no knowledge that the witnesses were coming, had no time to prepare questions and was not provided information on what the witnesses would testify about.
11I allowed Dr. Zakzanis to testify as the respondent had the letter that he authored in advance of this hearing, and which I admitted into evidence. Dr. Zakzanis will be allowed to comment on his letter. The parties will be allowed to provide submissions on the weight I should give his testimony, considering the respondent was unaware of his attendance and had no opportunity to produce a witness of its own. To mitigate the prejudice to the respondent, I allowed the respondent an opportunity to prepare questions in advance of Dr. Zakzanis’ testimony. In the end, Dr. Zakzanis did not appear before the Tribunal as a witness.
12I denied the applicant the ability to call Dr. Kamal as a witness. I find that having Dr. Kamal testify is highly prejudicial to the respondent. The respondent was never aware of the acidosis health concerns the applicant was having or how it relates to injuries sustained in the accident. The applicant has never produced any treatment records from Dr. Kamal or any report indicating that the applicant suffers from acidosis. Based on his submissions, the applicant hoped that Dr. Kamal will give this diagnosis on the spot during his testimony, based on the applicant’s blood work results that were contained in the brief. This amounts to trial by ambush. If the applicant required the testimony of Dr. Kamal to prove his case, he ought to have followed the Tribunal’s order and rules to ensure proper disclosure.
ANALYSIS
The applicant is not entitled to an IRB
13On the balance of probabilities, the applicant has not met his onus to demonstrate that he is entitled to an IRB.
14To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at 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 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.
15The applicant was a Lyft driver. His duties were similar to that of a taxi driver.
16The applicant argued that he was unable to continue working because he was injured in the car accident and his pre-existing injuries were worsened by the accident. He claimed that initially after the car accident, he had pain around his abdomen, his pre-existing back pain was worsened, and he had heel spurs from his physiotherapy treatment. He also argued that his tendinitis, acidosis, and psychiatric issues also prevent him from working. The applicant argued that the acidosis causes elevated levels of acid in his body, which makes the fluid in his back solid and therefore increases his back pain. The applicant argued that he refrains from strenuous work. Lastly, the applicant argued that the respondent only requested that a Disability Certificate (OCF-3) be filled out and he did that.
17The respondent submits that the applicant has not produced any medical evidence to support his allegations regarding the injuries sustained in the accident. The respondent relies on the hospital records where the applicant only reported back pain. The respondent argues that the applicant has no medical opinions that support his inability to work. In fact, the respondent relies on the OCF-3 that supports the applicant returning to work on modified duties.
18I find the applicant is not entitled to an IRB for two main reasons.
19First, the applicant is obligated as per s. 36 of the Schedule to produce a completed OCF-3. The applicant did that. Unfortunately, the OCF-3 does not support the applicant’s need for an IRB because it indicates that the applicant can return to work on modified duties. The physiotherapist who authored the document recommended that the applicant avoid prolonged sitting and pace himself with his activities. I find that the recommendations from the physiotherapist did not prevent the applicant from returning to the essential tasks of his occupation. As a Lyft driver, it is his choice when to accept jobs or decline them if he requires a rest period in between jobs.
20Secondly, the alleged injuries caused by the accident are not supported by the evidence.
21The applicant submitted that he could not return to work because of his acidosis. I have no evidence to support a diagnosis of acidosis other than the applicant’s testimony both that he has it and that the blood work lab report in evidence supports it. I also have no evidence to support that the accident caused the acidosis or that the accident made it worse.
22The applicant also claimed he cannot return to work because of his heel spurs. He claims that he needed physiotherapy treatment because of his accident-related strains and sprains, and it was a result of the treatment that he developed heel spurs. Although the applicant claims the heel spurs would not have arisen had it not been for the treatment received for his accident-related injuries, I have no medical evidence to support that the heel spurs were caused by the physiotherapist or because of the accident.
23The applicant testified that he went to the hospital after the accident because his abdomen was hurting. The hospital records show that he did not report any abdomen pain but simply back pain. The applicant returned to the hospital a few days after the accident and reported that he was experiencing abdominal pain. I have no evidence to support that the applicant suffered from abdomen pain from the accident.
24I find the applicant does not have a psychiatric disorder from the accident. Dr. Zakzanis indicated in his report that during the assessment the applicant appeared delusional, paranoid, and unable to answer questions in any comprehensible manner. Because of this Dr. Zakzanis was incapable of testing the applicant or formally diagnosing him.
25Lastly, the applicant testified that he could not return to work because his pre-existing back pain was worsened by the accident. The applicant did report back pain to the hospital following the accident and he was diagnosed with back strain. In accordance with the OCF-3, the physiotherapist confirmed the applicant had neck, mid and low back strains, and sprains. The physiotherapist was aware of the applicant’s pre-existing back issues and still endorsed his ability to return to work. Therefore, even though the applicant’s back pain may have worsened because of the accident, I have no medical opinion that the applicant was prevented from working because of this. As a result, he is not entitled to an IRB as he has failed to demonstrate that he suffered a substantial inability to perform the essential tasks of his employment as a result of the accident.
26Since the applicant is not entitled to a pre-104 IRB, he has not established a basis for a post-104 IRB.
ORDER
27The applicant has failed to prove that he is entitled to an IRB. Since no benefits are owed, he is not entitled to interest.
28I order that the application be dismissed.
Released: June 8, 2023
Chloe Lester
Vice-Chair