Licence Appeal Tribunal File Number: 21-014296/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:
Shakil Ahmad
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Teresa Walsh
APPEARANCES:
For the Applicant: Kameliya Stancheva, Paralegal
For the Respondent: Jonathan White, Counsel
HEARD: By way of written submissions
OVERVIEW
1Shakil Ahmad, the applicant, was involved in an automobile accident on March 8, 2020. The applicant sought benefits from the respondent, Economical Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the benefits in dispute. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
3On September 15, 2023, the respondent removed the applicant from the Minor Injury Guideline, a disputed issue, and also approved four treatment plans in dispute. Accordingly, the remaining issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 15, 2020 to present and ongoing?
ii. Is the respondent liable to pay an award under s. 10, O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not met his onus of proving entitlement to an IRB within the 104 weeks following the accident or after the 104-week period. As no IRB has been unreasonably withheld or delayed, no award nor interest is payable. The application is dismissed.
ANALYSIS
Applicant’s s. 33 non-compliance disentitles him to an IRB
5The applicant’s failure to comply with s. 33 of the Schedule, together with his failure to provide any reasonable explanation for the non-compliance, procedurally disentitles him to an IRB.
6Section 36 of the Schedule deals with claims for specified benefits, including an IRB. Specifically, s. 36(4)(c) allows the insurer, when responding to a claim for an IRB, to send a request for more information to the applicant under s. 33(1).
7Under s. 33(1)1. of the Schedule, within 10 business days of an insurer’s request, an applicant is required to provide “any information reasonably required” to assist the insurer in determining IRB entitlement. Under s. 33(6) of the Schedule, an insurer is not required to pay an IRB for any period during which an applicant fails to provide the requested information. Section 34 of the Schedule provides that an applicant is not disentitled to an IRB if he has a “reasonable explanation” for his non-compliance.
8Here, the respondent points to a letter it sent to the applicant on June 11, 2020. In the letter, the respondent first noted that it had not received information requested on March 27, 2020 and May 25, 2020, regarding the applicant’s IRB claim. The respondent next referred to the applicant’s characterization of himself as “self-employed” on the OCF-2 (Employer’s Confirmation Form), received by the respondent on June 9, 2020. Referencing s. 33(1) of the Schedule, the respondent requested an Election Form (OCF-10) and added that if the applicant wished to elect to receive the IRB as a self-employed individual, the respondent required the following in order to calculate the benefit: GST-HST returns, personal income tax returns and notices of assessments, corporate tax returns and notices of assessments, bank statements and expense records, financial statements and sales and revenue records.
9The applicant did not respond to the June 11, 2020 letter, nor did he respond to the respondent’s follow-up request letter of July 9, 2020. The applicant was advised that the respondent was “discontinuing” his IRB as of July 9, 2020, due to the applicant’s failure to provide the requested information.
10Based on information produced for this hearing, it appears that since July 9, 2020, the applicant has only provided to the respondent personal income tax returns, for the 2017 to 2021 filing years. The applicant offers no explanation for failing to provide any of the other information requested by the respondent as described above.
11Without the outstanding information, the respondent cannot calculate the quantum of any IRB under s. 7 of the Schedule, if the benefit is otherwise payable to the applicant. The amount of any IRB payable will depend in part on whether the applicant elects to be characterized as an employee or as a self-employed individual. Further, the respondent needs the requested financial information to assess any applicable deductions.
12The applicant’s ongoing non-compliance with s. 33 of the Schedule, together with the absence of any explanation for his non-compliance, disentitles him to this benefit.
Applicant’s non-compliance with document production orders
13The applicant’s IRB claim is further undermined by his failure to comply with document production orders made during the November 24, 2022 case conference in this matter. As set out in the case conference report and order (“CCRO”), by no later than 60 calendar days from the case conference, the applicant had agreed to provide the respondent with the following information relevant to assessing the amount of any IRB payable, or a written explanation as to why the information did not exist/could not be obtained:
i. The complete collateral benefit file, including short term disability and long term disability, if any.
ii. The applicant’s social services file (including employment insurance, WSIB, Canada Pension Plan and ODSP), if any.
iii. The complete employment file.
14The applicant did not provide the foregoing information to the respondent within 60 days of the case conference, or by the deadline for the applicant’s hearing evidence to be provided. Further, the applicant provided no written explanation as to why this information did not exist/could not be obtained.
15As with his non-compliance with s. 33 of the Schedule, the applicant’s failure to provide collateral benefits, social services and employment file information as required by the CCRO prevents the respondent from being able to determine whether the applicant is entitled to an IRB in any amount. In the circumstances, I draw an adverse inference due to the applicant’s failure to provide these documents necessary to assess the quantum of any IRB owing.
Applicant has not established IRB entitlement on a substantive basis
16While the applicant’s non-compliance addressed above is sufficient procedurally to disentitle him to an IRB, I further find that he has failed to establish entitlement to an IRB substantively, either within the 104-week period following the accident, or post-104 weeks.
Applicant is not substantially unable to perform essential employment tasks
17Section 5(1)1.i. of the Schedule states that an insurer shall pay an IRB to an insured person (applicant) who was employed when the accident occurred, sustained an impairment due to the accident and, as a result, suffers a substantial inability to perform the essential tasks of his employment within the 104 weeks following the accident. Section 5(1)2.i. mirrors s. 5(1)1.i., except that it deals with an insured person who was self-employed at the time of the accident.
18The applicant bears the onus of establishing a substantial inability to perform the essential tasks of his employment or self-employment due to an accident-related impairment. If the applicant fails to meet his onus, he is not entitled to an IRB under s. 5(1) of the Schedule within the 104-week period following the accident.
19At the time of the subject accident, the applicant was apparently working full-time as a warehouse supervisor for a media organization, a position he had held for about 15 years. According to the applicant, his job involved both supervising crew and physically bundling newspapers. The applicant describes frequent bending and lifting bundled papers during his workday. Following the accident, the applicant reportedly did not return to his job as a warehouse supervisor, or to any other paid work position.
20Based on my review of the evidence relied on by the applicant, summarized below, I find that he has failed to establish that, within 104 weeks of the accident, he was substantially unable to perform the essential tasks of the warehouse supervisor position.
i. The OCF-3 (Disability Certificate) dated March 12, 2020, prepared by Chiropractor Dr. Braich, states that the applicant is substantially unable to perform the essential tasks of his employment, that he can return to modified duties, and that the anticipated period of disability is nine to 12 weeks. There is no information in the Disability Certificate or otherwise from Dr. Braich as to the applicant’s essential work-related tasks. The physical injuries referenced by Dr. Braich as being accident-related are “sprains and strains” of the back, shoulder and hand. Other complaints (nervousness, headache, dizziness, dry mouth, fatigue), are based entirely on self-reporting. No information about the applicant’s pre-accident physical or psychological status is provided as a baseline, nor is additional, objective post-accident medical evidence referenced by Dr. Braich to support his opinion.
ii. An OCF-18 (“treatment plan”) dated November 5, 2020, prepared by Psychologists Dr. Papazoglou and Dr. Mrahar, describes a psychological assessment of the applicant, a provisional diagnosis of Adjustment Disorder and the assessors’ view that the applicant’s ability to carry out his employment tasks is affected by his psychological symptoms. The entirety of the assessment is based on the applicant’s self-reported symptoms, with no reference to any pre or post-accident objective psychological information, including testing. Further, the assessment was conducted by telephone, thereby precluding any observations by Dr. Papazoglou and Dr. Mrahar of the applicant’s affect and demeanor.
iii. Records from Alma Rehabilitation show that the applicant attended treatment regularly (including supervised exercise) for more than 18 months post-accident. The applicant described the services as being helpful. Again, however, there is no reference to any objective medical information in these records as to the applicant’s pre-accident baseline functionality or post-accident findings, and most details of the applicant’s progress are based on self-reporting.
21In support of its position that the applicant did not suffer a substantial inability to perform the essential tasks of his employment, and therefore has not established substantive entitlement to an IRB, the respondent relies in part on the records of the applicant’s family physician (Dr. Szulc). The respondent notes that:
i. The applicant saw his family physician rarely post-accident, with a 15-month gap between the initial visit on the day following the accident and the next visit in June 2021.
ii. At the first post-accident visit, Dr. Szulc records findings of “slightly reduced range of motion in all directions” for the applicant’s neck, back and left arm. She recommends over the counter pain medication to be taken as needed and massage and physiotherapy treatment.
iii. There are no references in Dr. Szulc’s records to her ever prescribing medication for accident-related injuries, and prescription records for the applicant do not include post-accident pain medication.
iv. In a July 29, 2021 appointment note, Dr. Szulc records that the applicant is complaining of neck, shoulder and feet pain and she adds, “Rule out osteoarthritis”. The doctor does not order any diagnostic imaging until February 2022, nearly two years post-accident. None of the imaging results (of the applicant’s cervical and lumbar spine, left shoulder and feet), show any evidence of historical or acute fracture. Findings include “mild degenerative changes” and “mild osteoarthritis”.
v. At a May 2, 2022 appointment, Dr. Szulc records that the applicant report of being in a motor vehicle accident “last week”. The applicant’s report of stiffness and soreness in his neck, shoulder and back is noted and Dr. Szulc adds, “Sounds okay … Soft tissue injury.” Physio and massage are recommended and follow-up as needed.
vi. None of Dr. Szulc’s post-accident records reference any psychological complaints by the applicant or any observations of a psychological nature by the doctor.
vii. None of Dr. Szulc’s post-accident records reference the applicant being off work or unable to work.
22The respondent also relies on reports of its s. 44 (“IE”) assessors, including Dr. Rabinovitch, a physical medicine specialist, and Dr. Saghatoleslami, a Psychologist. These IE assessors examined the applicant in person, reviewed medical records, the Disability Certificate and treatment plans provided, and prepared reports. In Dr. Rabinovitch’s May 2, 2023 report, she notes the applicant demonstrated a full range of motion and full strength on examination and concludes that, from a musculoskeletal perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment. In Dr. Saghatoleslami’s May 2, 2023 report, she describes the applicant as being very pain focused and experiencing adjustment difficulties secondary to the accident sufficient to meet diagnostic criteria of an Adjustment Disorder, Unspecified. At the same time, Dr. Saghatoleslami is of the view that, from a psychological perspective, based on current assessment findings, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a warehouse supervisor.
23In sum, I find that, based on a lack of compelling evidence from the applicant, together with objective medical evidence from the applicant’s family doctor, Dr. Szulc, that the applicant has failed to establish a substantial inability to perform the essential tasks of his employment within the 104 weeks following accident. The applicant has not met his onus as required by s. 5(1) of the Schedule. His IRB claim for this period is accordingly denied. While the respondent’s IE reports provide further evidence unhelpful to the applicant’s IRB claim, I would have denied the applicant’s claim even without the IE report findings.
Applicant doesn’t suffer a complete inability to engage in any employment/self-employment for which he is reasonably suited
24Section s. 6(2)(b) of the Schedule provides that an insurer is not required to pay an IRB after the first 104 weeks post-accident, unless, due to an accident-related impairment, an insured person (applicant) suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
25The applicant bears the onus of establishing a continuing IRB entitlement more than 104 weeks after the accident occurred.
26The applicant has not put forward any evidence to support his claim that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. As such, it is unnecessary for me to address the respondent’s four IE reports on this issue in any detail, other than to note that the IE assessors are consistent in their view that the applicant is capable of engaging in employment or self-employment for which he is reasonably suited by education, training or experience. In his May 2, 2023 IE report, Vocational Rehabilitation Specialist Bruno Rositano describes alternative occupations to that of a warehouse supervisor; these alternative occupations are stated to involve tasks in keeping with the applicant’s demonstrated strength abilities.
27The applicant has not met his onus of establishing entitlement to an IRB claim for the post-104 week period after the accident as required under s. 6(2)(b) of the Schedule. His claim for a continuing IRB is accordingly denied.
Interest
28As there are no medical benefits owing, no interest is payable.
Award
29The applicant sought an award under s. 10 of Ontario Regulation 664. Under s. 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. As no benefits are payable, the applicant is not entitled to an award.
ORDER
30For the reasons outlined above, I find that:
i. The applicant is not entitled to an IRB for any period following the accident. Accordingly, he is not entitled to interest.
ii. The applicant is not entitled to any award under s. 10 of Ontario Regulation 664.
iii. The application is dismissed.
Released: February 15, 2024
Teresa Walsh
Adjudicator