Citation: Devittoris v. Aviva Insurance Canada, 2024 ONLAT 23-010620/AABS

Licence Appeal Tribunal File Number: 23-010620/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:

Garazio Devittoris

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Piera A Segreto, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

Heard by Videoconference on:

September 16 & 17, 2024

OVERVIEW

1Garazio Devittoris (“the Applicant”) was involved in an automobile accident on May 28, 2021, and sought benefits from Aviva Insurance Canada (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. Additionally, the Respondent determined that the Applicant is no longer disabled from working as a manager at a restaurant and stopped payment of his income replacement benefits (“IRBs”).

3The Applicant disagrees with these decisions by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

4The Applicant sought to exclude the Respondent’s surveillance evidence because it was served upon him after the deadlines imposed by the Tribunal. Specifically, he submits that the Company Directorship Reports were completed beyond the document exchange deadlines and that the unedited video footage related to the surveillance has never been produced to him and should be excluded from the hearing. Additionally, the Applicant also seeks to exclude a surveillance report attributed to another claimant because that claimant did not consent to the disclosure.

5In response, the Respondent submits that the probative value of the evidence outweighs the prejudice to the Applicant. It submits that it does not intend to rely on the video surveillance evidence, only the reports served upon the Applicant, and highlights that the Applicant’s motion is untimely in that it is brought on the eve of the hearing and not at a time contemporaneous with the document disclose deadlines.

6I found the Applicant’s motion to be untimely and agree with the Respondent that such a motion ought to be made shortly after the deadline to disclose documents. I allowed the documents to be relied upon at the hearing, but noted that surveillance documents will have diminished weight because the author of the reports will not be testifying at the hearing. Lastly, I note that the Respondent does not require the consent of the subject of surveillance, obtained in public, to rely upon that evidence.

7With the benefit of hindsight, the motion is moot because I have found that the Applicant has not met his burden to demonstrate entitlement to the benefits claimed. Though I briefly mention Dr. G. Gelman, physician, an insurer’s examination (“IE”) assessor in this decision, his evidence was not a factor when determining the Applicant’s impairments.

ISSUES

8The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from November 5, 2021 to-date and ongoing?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,180.00 for a physiotherapy treatment plan proposed by Full Function Rehabilitation and Wellness, dated February 23, 2023?

iv. Is the Respondent liable to pay ana ward under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

v. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

9I find that the Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury. He is not entitled to the treatment plan in dispute because it proposes goods and services outside the MIG and beyond the funding limit.

10The Applicant is not entitled to IRBs as claimed.

11No award or interest is payable.

BACKGROUND

12The Applicant was the driver of a vehicle which struck the rear end of another vehicle stopped in traffic. The airbags deployed as a result of the collision, but the Applicant sought no medical attention at the scene of the accident. He went to a walk-in clinic later that day with complaints of neck and back pain, nausea, vision issues, and headaches. He was examined and discharged with a referral for x-rays, a prescription for anti-inflammatory medication, and a referral for physiotherapy, which he started about two weeks after the accident.

13The Applicant followed-up with Dr. L. DiNardo, his family physician, on May 31, 2021 and reported that his neck pain was better and that the pain was mostly related to neck rotation. No other issues were recorded during this visit and Dr. DiNardo referred him to physiotherapy. Since then, according to the clinical notes and records (“CNRs”) from Full Function Rehab & Wellness (“Full Function”), the Applicant has also reported complaints of left shoulder pain as well as bilateral arm and leg pain.

14Eventually the Applicant had imaging done on his right shoulder. The report from that investigation, dated April 21, 2023, concluded that the imaging demonstrated that the Applicant had a partial thickness tear of the right shoulder with degenerative changes at the joint and evidence of bicep tendinopathy and tenosynovitis.

15The Applicant submits that the partial thickness tear in his should is not a minor injury and he should not be subject to the MIG as a result. Alternatively, the Applicant submits that his age, he was 72 at the time of the accident, precludes his recovery if subject to the MIG. With respect to his claim for IRBs, he submits that his neck, back, and shoulder pain preclude him from completing the essential tasks a chef and restaurant manager.

16For the following reasons, I find that the Applicant has not met his onus to demonstrate entitlement to the benefits claimed.

ANALYSIS

Minor Injury Guideline (“MIG”)

17The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

18The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

19For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

A partial thickness tear is a minor injury

20I find that the partial thickness tear is a minor injury because it is expressly states so within the MIG.

21The Applicant submits that the ultrasound report of April 21, 2023 demonstrates that he sustained a partial thickness tear as a result of the accident and submits that he should not be subject to the MIG as a result. The Respondent disagrees that the Applicant’s right shoulder injury is a result of the accident and also submits that a partial thickness tear is a minor injury.

22I find that I need not consider the cause of the Applicant’s partial thickness tear in his right shoulder because a partial thickness tear is a minor injury as stated in the MIG. Section 3 of the Schedule defines “Minor Injury Guideline (“MIG”)” as follows:

(a) that is issued by the Chief Executive Officer under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and

(b) that establishes a treatment framework in respect of one or more minor injuries; (“Directive sur les blessures légères”)

23As introduced earlier in this decision, the MIG, published in 2014 under Superintendent’s Guideline No. 01/14, defines “sprain” as follows:

sprain means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.

24The Applicant’s submissions, in accordance with his evidence, conclude that he sustained, at worst, a partial thickness tear of his right shoulder. Accordingly, he sustained a “sprain” as defined in the MIG, which is included in the definition of a minor injury.

The Applicant’s age is not a pre-existing condition that excludes him from the MIG

25I find no evidence demonstrating that the Applicant’s age precludes him from reaching maximal recovery if subject to the MIG.

26The Applicant submits that his age is a pre-existing condition which precludes his recovery if subject to the MIG. However, his submissions concerning the affect of his age on his recovery are speculative and are not supported by any medical professional. I have reviewed the ultrasound report, walk-in clinic CNRs, Dr. DiNardo’s CNRs, Full Function’s CNRs, and the IE reports and paper reviews, and none of the professionals in those records indicate that the Applicant’s age factors into his recovery. Accordingly, I find that I am unable to conclude that the Applicant’s age precludes maximal recovery if he is subject to the MIG.

27Having determined that a partial thickness tear is a minor injury and that there is no evidence demonstrating that the Applicant’s age factors in his recovery, I conclude that he sustained a minor injury as a result of the accident.

The Applicant is not entitled to the treatment plan in dispute

28The treatment plan in dispute proposes treatment that falls outside the MIG and the $3,500.00 funding limit for a minor injury. Having determined that the Applicant sustained a minor injury, it follows that he is not entitled to goods and services outside the MIG.

Income Replacement Benefits (“IRBs”)

29The onus is on the Applicant to demonstrate that he is substantially unable to perform the essential tasks of his pre-accident employment as a result of an accident-related impairment. After 104 weeks following the accident, the test for entitlement requires the Applicant to demonstrate he suffers a complete inability to engage in employment or self-employment for he is reasonably suited by education, training, or experience.

30According to the Applicant, he does not own the restaurant he works in, and his job duties include managing it, taking orders, taking care of employees, purchasing food and liquor, and cooking. Later in his testimony, he reported that he worked about 11 hours a day as a chef. According to Dr. Gelman, the Applicant described himself as a restaurant owner involved in managing and cooking but could not specify how his time is allocated between the two roles. According to the OCF-2, which the Applicant testified was completed by the owner of the restaurant, reports his title as restaurant manager and lists his job description as: “Track stock levels of food, supplies, and equipment, forecast needs, and oversee ordering as necessary.” The OCF-2 states that the Applicant’s weekly gross salary is $700.00 and does not mention any work as a chef or a cook. A note by vascular surgeon, Dr. W. Johnson, dated January 19, 2023, located in Dr. DiNardo’s CNRs, describes the Applicant as a “restauranteur.”

31I find the Applicant’s essential tasks of employment are predominantly managerial roles, possibly with some occasional cooking. The Applicant’s testimony and Dr. Gelman’s testimony, as well as the OCF-2 to be conflicting, making it difficult to determine the essential tasks of his employment at the time of the accident. Further compounding the issue, the OCF-3 by Dr. DiNardo does not describe the Applicant’s work or his job tasks. The overarching role is that of a restaurant manager, which I must conclude is the Applicant’s primary role and dominates his essential tasks of employment.

32I find that the Applicant has not demonstrated that he is disabled from the essential tasks of a restaurant manager during the period he claims entitlement to IRBs. The Applicant testified that he could not recall any healthcare provider who advised that he was unable to work. This is reflected in his medical record, which includes no restrictions or recommendation to refrain from working.

33Dr. DiNardo’s CNRs include no opinion or recommendation for the Applicant to avoid work during the period of claim. At most, Dr. DiNardo’s CNRs support a claim for IRBs for a period of 9-12 weeks from no later than June 23, 2021 (to around September 15, 2021), but this period pre-dates the Applicant’s claim. The CNRs from Full Function document the Applicant’s various pain complaints but make no recommendation for him to avoid work or any tasks. An entry dated February 10, 2022 states that the Applicant reported that his low back pain gives him difficulty with lifting and doing heavy work in the kitchen. The MIG discharge form by Dr. G. Caruana, chiropractor, dated October 12, 2021, finds that the Applicant is unable to complete his pre-accident work tasks, but suggests that he can work on modified or partial duties.

34Having difficulty with some tasks of a small portion of one’s employment does not equate to a substantial inability to perform the essential tasks as a restaurant manager. Accordingly, I find that the Applicant has not demonstrated that he is disabled from completing the essential tasks as a restaurant manager.

Interest

35Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

36The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

37The Applicant submits that he is entitled to an award because the Respondent failed to comply with the Tribunal order for disclosure, by disclosing documents improperly, beyond the deadline, and by failing to produce everything ordered by the Tribunal. He characterizes the Respondent’s behaviour as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The Respondent submits that its decisions were based on the wholistic record and that an award is about the adjusting of a claim and not related to behaviour during a proceeding.

38I find no award payable because no benefits were unreasonably withheld or delayed. The behaviour described by the Applicant did not relate to any withholding or delayed payment of benefits.

ORDER

39The Applicant sustained a minor injury as a result of the accident.

40The Applicant is not entitled to the treatment plan in dispute because it proposes goods and services that fall outside the MIG.

41The Applicant has not demonstrated that he is substantially disabled from completing the essential tasks of his employment.

42No interest or award is payable.