Licence Appeal Tribunal File Number: 19-014703/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:
Mekala Raveenthiran
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Zachary Berg, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Mekala Raveenthiran, the applicant, was involved in an automobile accident on March 18, 2017, 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 by Aviva Insurance Canada, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2By way of background, a preliminary issue was raised as to whether the limitation period to dispute the income replacement benefits had expired prior to filing the application. Adjudicator Lake determined in her decision dated March 18, 2021 that the applicant was not statute-barred from proceeding with her application. The respondent’s request for reconsideration was dismissed on September 17, 2021. The parties participated in a resumption of the case conference and a written hearing was scheduled to address the applicant’s substantive entitlement to income replacement benefits.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit at the rate of $195.30 per week from July 5, 2017 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to income replacement benefits. No interest is payable.
THE LAW
5Despite the decision on the preliminary issue that the applicant is not statute-barred from proceeding with her claim for income replacement benefits, she is not automatically entitled to the benefits – she still bears the onus to prove entitlement to her claim.1
Pre-104 Week IRB
6Section 5(1)1 of the Schedule provides the criteria an insured person must meet in order to be eligible to claim income replacement benefits, as follows:
The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
- The insured person,
(i) 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, or
(ii) was not employed at the time of the accident but,
A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,
B. was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and
C. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.
7The 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 tests for IRB.
Post-104 Week 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.
ANALYSIS
9The applicant has not met her burden to prove her entitlement to income replacement benefits. Her submissions provide a description of the accident, some background information about her former employment, and a summary of some medical evidence. There is no reference to the legal framework that sets out the criteria needed to prove the issues in dispute, such as the test she needs to meet in order to qualify for IRBs, or how the evidence establishes that she meets that test. She made no submissions as to how the medical evidence is related to the subject accident, or why they are relevant to her claim for IRBs. The applicant must direct the Tribunal to the relevant evidence in support of her case and explain why she meets the test for income replacement benefits. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make her case. Further, despite the explicit instructions in the Case Conference Report and Order dated December 7, 2022, the submissions are not indexed, bookmarked, or paginated, and do not make pinpoint references to the evidence.
10Despite the fact that the submissions are virtually devoid of any legal argument, I have considered the evidence provided. I find that the applicant has not met her burden to prove her entitlement to income replacement benefits.
11Prior to the accident, the applicant was employed as a packager at a food manufacturer until November 2016. She was reportedly receiving Employment Insurance benefits at the time of the accident and has not returned to work. She is purportedly receiving Ontario Disability Support Program benefits (“ODSP”), but it is unclear why or since when because the ODSP file provided with her submissions consisted only of a letter acknowledging the request for the file.
12The applicant’s pre-accident medical history was remarkable for hypertension, diabetes, high cholesterol and asthma. She also separated from her abusive spouse in March 2017 after almost 20 years of marriage.
13At the time of the accident, the applicant’s vehicle was proceeding through an intersection, when another vehicle struck hers on the driver’s side in a T-bone fashion. The airbags did not deploy. She was taken to hospital with complaints of pain in her neck, back, chest, upper extremities, and headaches. Imaging was normal, and she was discharged the same day with a prescription for Tylenol #3.
14A disability certificate dated June 14, 2017, indicates that the applicant was substantially unable to perform the essential tasks of her employment for an anticipated duration of 9-12 weeks. The injuries identified included whiplash associated disorder 2 (“WAD 2”), low back pain, sprain and strain of the shoulder, injury to her leg, knee pain, sleep disorder, and headaches.
15The medical evidence does not support that the applicant had a substantial inability to perform the essential tasks of her pre-accident employment.
16The applicant saw her family doctor, Dr. Selvanthan a few days after the accident, on March 20, 2017, and reported pain in her back, neck, chest, shoulders and headaches. She followed up in June 2017 for shoulder pain. The doctor noted normal ranges of motion, he didn’t make any referrals for imaging or treatment and told her to follow up in 2-3 weeks if it didn’t improve. There are no further accident-related complaints after June 2017, though she was seen on multiple occasions for other issues.
17The applicant underwent an insurer’s examination with Dr. F. Abuzgaya, orthopaedic surgeon, on August 2, 2017. During this assessment, the applicant complained of pain in her neck, shoulder, back, and headaches. Dr. Abuzgaya noted that there were signs of symptom magnification during formal testing, and that casual observation showed much better ranges of motion than during the examination. He diagnosed soft tissue injuries and found that there was no objective evidence of any residual impairment. From a musculoskeletal perspective, she did not suffer a substantial inability to perform the essential demands of her pre-accident employment as a result of the accident.
18The applicant submitted the records of Dr. Kakar, psychiatrist. I find that the psychiatry reports from Dr. Kakar do not support her claim for IRBs. The applicant was first assessed by Dr. Kakar in March 2020. She reported having depression for over ten years at that point, that she separated from her abusive spouse in March 2017 after almost 20 years, bereavement from the loss of her parents, and described having pain in her back, shoulder and knee due to her heavy manual work. There is no mention of the motor vehicle accident in this or any of Dr. Kakar’s subsequent reports.
19In support of her claim, the applicant also provided records from Dr. Kirubaharan, who also appears to be another treating family physician. Again, I find these records unpersuasive. There were 18 encounters with Dr. Kirubaharan between June 2020 and September 2022, virtually all of them related to diabetes and hypertension and indicate “no other concerns or complaints”. On one occasion, on November 8, 2021, the applicant reported a history of back pain for two years. There is no mention of the motor vehicle accident, and notably, the accident had occurred almost four years prior at that point. She was given a prescription for Baclofen and told to follow up in three weeks. There was no mention of back pain during her next appointments, nor was she given any refills of Baclofen. In April 2022 the applicant was seen for follow-up related to her diabetes. The doctor noted that they had received a request from her lawyer for a letter commenting on her physical or psychological inability to engage in employment due to the accident, but the doctor declined, indicating that she never complained about the accident, and they didn’t have any evidence to support the request. Again, in September 2022, the applicant presented with another request from her lawyer for a letter, which was again denied by Dr. Kirubaharan, as they had no evidence to support the request.
20The applicant submitted a psychological assessment report by Dr. L. Steiner, dated April 11, 2018, in which he diagnosed the applicant with post-traumatic stress disorder, major depressive disorder, and specific phobia (driver related), and recommends that she participate in counselling and driver-reintegration. However, the report doesn’t speak to how these impairments affect her ability to engage in the tasks of her pre-accident employment. On page 10 of the report, the doctor was specifically asked whether the applicant had impairments which affect her ability to work at her pre-accident employment, and he simply noted that she was not employed at the time of the accident. Further, this report is based solely on her subjective self-reporting and makes no mention of the history of mental health issues and the abusive marriage she shared with Dr. Kakar. Therefore, I give this report little weight.
21The onus is on the applicant to prove entitlement to a benefit. I find that she has not met that burden, as neither the applicant’s submissions nor the evidence supports that she meets the criteria for IRBs under either section 5 or 6 of the Schedule.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue; therefore, no interest is payable.
CONCLUSION AND ORDER
23The applicant is not entitled to income replacement benefits. No interest is payable.
24The application is dismissed.
Released: August 10, 2023
__________________________
Kate Grieves
Adjudicator
Footnotes
- Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457 at para 9-10.