Citation: Akinnagbe v. Aviva Insurance Canada, 2023 ONLAT 21-013281/AABS

Licence Appeal Tribunal File Number: 21-013281/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:

Tobi Akinnagbe

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Glen B. Cox, Paralegal

For the Respondent:

Andrea Bandow, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Tobi Akinnagbe (“the applicant”) was involved in an automobile accident on July 19, 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 by Aviva Insurance Canada (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to income replacement benefits at the rate of $400.00 per week from January 3, 2020 to date and ongoing?

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

RESULT

3The applicant is not entitled to income replacement benefits, and no interest is payable.

BACKGROUND

4The applicant was the seat-belted driver of a sedan that was rear-ended at a red light. The airbags did not deploy, the EMS did not attend the scene, and the applicant reported the accident at a collision reporting centre. He denied striking his head or any loss of consciousness. The applicant reported that his infant son, who was asleep in the backseat, slept through the incident.

5According to the OCF-2 Employer’s Confirmation Form, the applicant was employed as a forklift operator, loading and unloading trucks, from May 6, 2019, and his last day worked was July 19, 2019.

ANALYSIS

The applicant is not entitled to IRBs for the period claimed

6I find that the applicant has not established that he is unable to work as a result of accident-related injuries.

7Pursuant to s. 5 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. The test for entitlement becomes more difficult after 104 weeks. Pursuant to s. 6 the insured person must suffer a complete inability to engage in employment or self-employment for which they are reasonably suited by education, training, or experience.

8The applicant submits that he is physically and psychologically impaired as a result of the accident, that he cannot perform the essential tasks of his employment, is not capable of finding suitable employment given his functional limitations, and that he would require substantial retraining in order to return to the workforce.

9In his submissions the applicant identifies a lengthy list of injuries, including chronic pain syndrome, and alleges various functional impairments, however, he fails to direct me to the medical evidence in support of his claims.

10I find that the bulk of the evidence does not support the applicant’s claim for income replacement benefits. The applicant’s demonstrated and reported level of function does not support that he was substantially unable to perform his job duties. His reasons for remaining off work are inconsistent, as he claimed government benefits that require he declare that his inability to work was related to the COVID-19 pandemic, and therefore are unrelated to the accident. Further, the applicant has subsequently returned to work as a forklift driver, which was his pre-accident occupation.

11The applicant attended a walk-in clinic on July 22, 2019. He reported the accident. The doctor, Dr. Gnanatissa, noted scoliosis over the thoracic region. Range of movement was full, there was no sign of a head injury, and she diagnosed back sprain. He was referred for physiotherapy and given a note for 10 days off work. No imaging was obtained.

12A disability certificate, completed by Dhwanit Soni, physiotherapist, dated August 12, 2019 identifies pre-existing scoliosis; cervicalgia; sprain and strain of the shoulder, knee, lumbar spine, and pelvis; pain in the thoracic spine; other anxiety disorder; acute stress reaction; and insomnia. The disability certificate indicated that the applicant was substantially unable to perform the essential tasks of his employment for an anticipated duration of 9-12 weeks.

13The applicant participated in an insurer’s examination (“IE”) with Dr. Auguste, orthopedic surgeon, on December 4, 2019. The applicant reported that he continued to drive, was independent with his self-care tasks, and engaged in housekeeping and leisure activities, such as preparing food and looking after his family (including his then 8-month-old son), grocery shopping, walking his dog, playing videogames, and watching television. The physical examination revealed full ranges of motion, and strength and neurological examinations were normal.

14With respect to his employment, the applicant advised that he was laid off after the accident. He told Dr. Auguste that he was waiting for clearance from a physical therapist to return to work, however there is no evidence that the applicant was advised by such a treatment provider to remain off work. Dr. Auguste noted evidence of exacerbation of his pre-existing scoliosis in terms of muscle tension and localized pain with range of motion testing, however there were no substantive impairments that would interfere with his pre-accident function.

15The applicant also underwent a psychological IE with Dr. MacKay on December 10, 2019. He reported experiencing increased apprehension and cautiousness when driving but continued to drive regularly (4 days a week), to attend appointments, shop for groceries, and drive his girlfriend to see her family. He reported interrupted sleep since the accident but attributed it to the baby waking at night. He did not report any accident-related dreams or nightmares, or any concerns with his mood, cognition, memory, appetite etc. When specifically asked whether he felt he had any psychological problems related to the accident, the applicant stated he did not. When Dr. MacKay asked why he had not returned to work since the accident, the applicant did not advise that it was due to his injuries, or that his doctor recommended he stay off work, but rather that he was waiting for his legal representative’s clearance to return to work. The applicant’s primary complaint was pain, over his low back, neck, right shoulder and left, knee, but he estimated a 60% improvement to date. With respect to his post-accident function, the applicant again reported that he completes his own self-care, walks his dog, prepares food for his family, feeds his infant son, cleans the kitchen, works out at home, researches topics online, spends time with his son, attends appointments, shops for groceries, drives to visit friends and play videogames, cuts the grass and takes out the garbage.

16Dr. Auguste and Dr. MacKay both concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a forklift driver.

17The applicant was involved in a second on September 3, 2020 when his vehicle was struck in a t-bone fashion. The applicant reported striking his head and shoulder on the window and his knee on the dashboard. Fire services attended the scene, his vehicle was towed away and later written off.

18The applicant underwent an IE with Dr. Hanna, physician, in relation to the second accident on November 9, 2020. He reported that he was taking only Tylenol as needed prior to the second accident. Following the second accident, he also took anti-anxiety medication. He reported that he was not employed, but was actively searching for work at the time of the second accident. He reported being independent with all aspects of personal care and housekeeping, including meal preparation, and all outdoor tasks. He reported that his neck pain was a 4/10 and his back pain was a 5-6/10 prior to the second accident.

19Addendum reports (dated January 4, 2021) were provided by Dr. Auguste and Dr. MacKay upon receipt of further clinical notes and records. The assessors considered the available notes of Dr. Gnanatissa, Dr. Fagbemigun, and Dr. Nguyen, and both determined that their opinions were unchanged.

20The clinical notes and records show that the bulk of the applicant’s complaints arose after the second accident. In fact, there was a gap in accident-related complaints from February 2020 until September 2020, after the second accident.

21The applicant began seeing Dr. Fagbemigun in October 2019, reporting diffuse back pain and headaches, poor sleep, and worrying about the accident. Dr. Fagbemigun opined that the applicant had chronic musculoskeletal pain and had prescribed Ativan 1mg per day and Naproxen 500mg on one occasion for 30 days. He was advised to continue physiotherapy and was referred to Releva Chronic Pain Centre in January 2020. Dr. Nguyen at the pain clinic noted on April 11, 2020 that the applicant had full ranges of motion of his lumbar spine, normal tone, power, sensation and reflexes of the lower extremities, a normal hip exam, etc. Dr. Nguyen diagnosed only mechanical back pain with myofascial features, not chronic pain. He received a nerve block injection, which provided 40% or more improvement in pain and function, according to the applicant. The applicant did not return to the pain clinic until July 2022. He participated in physiotherapy and psychological treatment.

22Following the second accident, Dr. Fegbemigun noted that the applicant was feeling anxiety more from the second accident, and Naproxen was prescribed more frequently.

23No functional limitations were noted by his treating physicians, Dr. Gnanatissa or Fagbemigun, but rather he was advised to increase his activity. None of the treating physicians note that he was unable to work due to his accident-related injuries.

24Furthermore, the applicant declared to the Canada Revenue Agency (“CRA”) in 2020 that he stopped working due to the COVID-19 pandemic. He applied for and received the Canada Emergency Response benefit (“CERB”) in 2020 and the Canada Recovery Benefit (“CRB”) in 2020 and 2021. The respondent submits that to be eligible for CERB, which was available between March 15 and September 26, 2020, the applicant had to declare to the CRA in his application one of the following: (a) that his work hours were reduced by COVID-19, (b) that he stopped working because of COVID-19, (c) that he was unable to work because of COVID-19, or (d) that he was paid EI regular benefits for at least one week of benefits since December 29, 2019 and used up his entitlement to those benefits. There is no evidence that the last criteria applied, therefore the respondent asserts that the implication is that the applicant declared to the CRA that he was not employed for reasons related to COVID-19.

25Similarly, to be eligible for the CRB, which was available between September 27, 2020 and October 23, 2021, the applicant would have had to declare to the CRA that he was not employed for reasons related to COVID-19 (or had reduced income due to COVID-19), and that he was seeking work during the period he claimed CRB.

26The applicant received $14,000 in CERB from March 15 to September 26, 2020 and $24,000 of CRB from October 11, 2020 to October 23, 2020.

27The respondent submits that in receiving the CERB and CRB, the applicant confirms he was off work in 2020 and 2021 because of the pandemic, given the declarations made to the CRA. The applicant filed no reply submissions, therefore those allegations are unrefuted.

28The applicant’s credibility is put into question given his receipt of CERB and CERB. The applicant did not provide an employment file or record of employment to substantiate that he did not return to work after the accident, or that he did not return due to accident-related injuries. He declared to the CRA that he stopped working due to COVID-19 in 2020 and 2021. Meanwhile, he did not declare his income from CERB or CRB in his 2020 income tax returns.

29The applicant also made conflicting statements to assessors.

30The applicant told Dr. Hanna in November 2020 that at the time of the second accident in September 2020 he was not employed but was actively searching for work. After the initial assessment at Releva, there were no visits to the pain clinic between January 2020 and July 2022. In July 2022, the applicant reported that he had not been at the clinic for two years because he was busy working, that he was working full time as a forklift driver and lifting heavy objects.

31The applicant points out that he was later found to have a psychological impairment following an IE. In November 2021, the applicant was found to have a psychological impairment by the IE assessor Dr. Costa El-Hage. She noted that he had been participating in psychotherapy, which had been helpful in alleviating some of his driving-related anxiety. However, functionally, he reported that he continued to be independent with his self-care, caring for his son, and some of the household chores albeit less, but continued to complete grocery shopping, lawn maintenance and snow removal. She diagnosed an adjustment disorder with mixed anxiety and depressed mood. At this juncture, the 104-week mark had already elapsed. I find that the applicant did not meet the test for post-104 income replacement benefits, which is further supported by the fact that within a few months of this assessment, the applicant reported that he was working full time as a forklift driver.

32Finally, the applicant points to his removal from the Minor Injury Guideline and receipt of attendant care benefits as support for his entitlement to income replacement benefits. I find neither action determinative of the issue in dispute. The applicant was removed from the MIG in accordance with the Schedule following receipt of clinical notes and records showing that the applicant reported anxiety post-accident. This is not sufficient to show that the applicant had a psychological impairment that resulted in a substantial inability to perform the essential tasks of his employment. With respect to attendant care, the respondent received a Form 1 and paid benefits in good faith as it was not in possession of updated clinical notes and records. The respondent then scheduled an IE and subsequently terminated attendant care based on the finding of an occupational therapist that no attendant care assistance was required.

33Adjustment of a file in good faith, and in light of the subsequent accident, is not evidence that the applicant sustained a substantial inability to perform the essential tasks of his employment.

34I find that the applicant has not met his burden to prove that he suffered a substantial inability to perform the essential tasks of his pre-accident employment.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are owed, therefore no interest is payable.

ORDER

36The applicant is not entitled to income replacement benefits and no interest is payable.

37The application is dismissed.