Citation: Jamow v. Certas Direct, 2024 ONLAT 22-011490/AABS

Licence Appeal Tribunal File Number: 22-011490/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Yuusuf Mahamud Jamow

Applicant

and

Certas Direct

Respondent

DECISION

ADJUDICATORS:

Michael Beauchesne

John Mazzilli

APPEARANCES:

For the Applicant:

Yuusuf Mahamud Jamow, Applicant

Ivy So, Paralegal

For the Respondent:

Justin Beaulieu, Adjuster

Yann Grand-Clement, Counsel

Somalian Interpreter:

Fatima Dini

Court Reporter:

Beryl Capicciotti

HEARD: by Videoconference:

January 29-30, 2024

OVERVIEW

1Yuusuf Mahamud Jamow (the ”applicant”), was involved in an automobile accident on July 15, 2020, 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 benefits by Certas Direct (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Procedural ISSUES

The respondent objects to the applicant testifying at the hearing

2We find the applicant’s testimony is relevant to our full and fair understanding of the issues in dispute.

3The respondent submits it would be prejudicial to allow the applicant to testify because he was not included on his final witness list. The respondent characterizes this as an “ambush tactic” and further asserts the applicant did not comply with the Tribunal’s order—as articulated in the case conference report and order released on June 7, 2023—to exchange and file final witness lists 30 days before the hearing.

4The applicant’s representative argues she has always intended for the applicant to testify. She explains that she advised of this in her case conference summary, and did not understand a witness list needed to be filed if the applicant was the only witness. The applicant‘s representative adds that that the onus of proof is on the applicant, and that the relevance of his testimony ought to have been anticipated by the respondent, given that an income replacement benefit is disputed.

5It is well established that relevance is the main consideration when deciding whether to allow or not allow evidence to be introduced at a hearing. The income replacement benefit is the principal issue in dispute, and we find the evidence of the applicant is highly relevant to this issue. In our view, the applicant’s testimony is required to obtain a fair and full understanding of whether the test for an income replacement benefit is met per the Schedule. While we accept the applicant failed to comply with the Tribunal’s order concerning a final witness list, we find the applicant’s case conference summary does clearly indicate the applicant intended to provide oral evidence at the hearing. We are satisfied the prejudice claimed by the respondent can be mitigated through cross-examination of the applicant’s evidence, for which we can allow the respondent extra preparation time during the hearing.

The respondent seeks permission to bring a court reporter

6We find the respondent may bring a court reporter.

7The respondent acknowledges it did not comply with the Tribunal’s order to secure the applicant’s consent, and notify the Tribunal in writing at least 14 days before the hearing, if it intended to bring a court reporter. The respondent submits this was an oversight.

8The applicant consented to the respondent bringing a court reporter.

9While we agree the respondent did not comply with the Tribunal’s order concerning a court reporter, we find the respondent has already made arrangements, such that allowing the court reporter would not delay or impede the proceedings. Given also that the applicant consents to the court reporter, we find it appropriate to grant permission to the respondent.

The respondent seeks to introduce previously shared evidence that was not filed with the Tribunal for these proceedings.

10We find the respondent may rely on financial records produced by the applicant.

11The respondent submits that the applicant’s tax records (including pay stubs and T4 slips) are relevant to establish the applicant’s employment status during the period of the income replacement benefit. The respondent argues that the applicant produced these records on August 23, 2023, so there is no prejudice to the applicant as they are not new disclosures, but rather documents the applicant has had for a “very long time.”

12The applicant submits this is an “ambush attempt” and would be prejudicial because his counsel is not prepared to address these documents.

13It is well established that relevance is the main consideration when deciding whether to allow or not allow evidence to be introduced at a hearing. We find the records the respondent seeks to rely on could permit a fuller and fairer understanding of the applicant’s claim to an income replacement benefit because knowing when the applicant was working, and how much he was working, speaks directly to his capacity to work. In our view, prejudice to the applicant is mitigated by these records being produced several months before the proceeding, and the applicant’s opportunity for redirect on this evidence. Further, owing to the late introduction of this evidence, the parties were invited to make submissions on weight in their closing submissions.

ISSUES

14The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from January 4, 2021, to date and ongoing?

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

15At the beginning of the hearing, the applicant withdrew issues no. 1, 3, 4, and 5 as they appear in the case conference report and order for this matter, released on June 7, 2023.

RESULT

16The applicant is not entitled to an IRB, nor interest.

ANALYSIS

Does the respondent’s IRB denial notice comply with the Schedule?

17We find the respondent’s denial notice complies with the Schedule.

18Section 36(4)(b) of the Schedule obligates the respondent to, within 10 business days of receiving an application for accident benefits (the “OCF-1”) and a certificate of disability (the “OCF-3”), give the applicant a notice explaining the medical and any other reasons for denying the specified benefit—in this case, an IRB.

19The applicant points to the respondent’s denial notice of April 28, 2021, and submits this notice does not comply with section 36(4)(b) of the Schedule because it fails to provide meaningful reasons based on the applicant’s conditions and injuries. The applicant adds that the respondent relies on information from the applicant’s employer, but did not provide evidence of this discussion to the applicant at the time of denial. The applicant also says the respondent was obligated to investigate the applicant’s employment status instead of simply assuming he had, in fact, returned to his seasonal work.

20The respondent submits it relied on non-medical reasons to stop the applicant’s IRB per section 36(4)(b) of the Schedule, and that the notice it provided was compliant because it included these reasons.

21While the applicant testified he did not understand why his IRB had been denied, we find the respondent provided meaningful, valid, and clear reasons in its notice dated April 28, 2021. The notice says the respondent confirmed—with the applicant’s employer—that he returned to his pre-accident employment duties and hours after the accident, and that the layoff on November 5, 2020, was due to the seasonal nature of the applicant’s employment and not owing to accident or injury. We find this information is consistent with the employer’s confirmation form (the “OCF-2”) signed by the applicant and earlier submitted to the respondent, and therefore place less weight on the applicant’s argument that evidence of the respondent’s discussion with his employer was not provided. We are also satisfied that the OCF-2 substantiates the respondent’s reasons for denial (i.e., the applicant was able to return to his pre-accident employment duties and hours for approximately four months prior to his regular seasonal layoff).

22While we agree the notice does not refer to the applicant’s medical conditions and injuries, we are satisfied the other reasons provided by the respondent were clear, meaningful, and valid in the context of the information it had received. We disagree the respondent bore onus to further validate the applicant’s employment status at the time of its notice because it was entitled to rely on the evidence provided by the applicant up to that time.

23We also disagree that the authority cited by the applicant—Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”)—establishes that a medical reason must be provided if the respondent denies an IRB. In our view, Varriano establishes the respondent need only provide the non-medical reasons for its determination if it is not relying on medical reasons. We find that is the case here, as the respondent relied on employment records that indicated the applicant continued to work after the accident for four months up to the end of the window cleaning season, which is not a medical reason.

24Taken together on balance, we find the respondent’s notice complied with the requirement—set out in section 36(4)(b) of the Schedule—to provide medical and any other reasons for its decision to deny the IRB.

Is the applicant entitled to an IRB?

Within 104 weeks after the accident (up to July 15, 2022)

25We find the applicant has not demonstrated he is entitled to an IRB within 104 weeks after the accident.

26Section 5(1) of the Schedule lays out the eligibility criteria for an IRB within 104 weeks after the accident, which is a three-part test. In this case, the applicant must first show he was employed at least 26 weeks during the 52 weeks before the accident, or that he was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident; secondly, that he suffered a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident and within 104 weeks after the accident; and lastly, that his substantial inability is a result of the accident.

27The parties agree the applicant meets the first part of this test, so this dispute is therefore more narrowly focused on the latter two parts of the test that involve substantial inability and whether it arises from the accident.

28The applicant submits that, as a result of the accident, he sustained injuries to his lower back, right shoulder, and right hand as well as headaches. At the time of the accident, the applicant says he had been employed by a commercial window cleaning company for two seasons (i.e., since 2018) and washed windows on high-rise buildings. He argues that following the accident, the pain and physical limitations posed by his injuries (i.e., reduced strength and mobility) made him fear for his safety and caused him to be less productive on the job, which ultimately led his employer to terminate his employment. The applicant relies on the OCF-3 completed by Dr. J.A. Nathanson (chiropractor), the clinical notes and records of Humber River Hospital, and the medical records of various walk-in clinics.

29The respondent argues that the applicant has failed to show he is entitled to an IRB, explaining there is a lack of medical evidence to support the applicant’s claims and pointing to gaps in his medical records during the period of claimed disability. The respondent adds that the applicant returned to full duties and hours after the accident and was not terminated for performance reasons owing to his accident-related injuries. The respondent relies on the OCF-2 completed by Mr. Nathan MacDonald, the applicant’s hospital records from Humber River Hospital, a December 2020 report by Dr. Richard Magder (neurologist), the applicant’s Ontario Health Insurance Program (“OHIP”) summary, and pay stubs completed the applicant’s employer.

30We accept that the applicant’s job was physically demanding and requires both strength and flexibility. The applicant testified that his essential employment tasks involved securing cabling on the roof of a structure and then relying on his own strength—while sitting on a bench suspended by these cables—to manipulate his position up, down, and across banks of windows. As well, the applicant described how he would need to be able to repetitively reach up to 1.5 metres overhead and to his side to perform his window washing duties. An e-mail from his employer, dated March 13, 2022, corroborates the applicant’s testimony about his work duties.

31But while the applicant claims he suffered injuries to his back, right shoulder, and right hand as a result of the accident—which is documented in the legible portions of part 5 of the OCF-3—we find there is insufficient evidence of these injuries causing the applicant to suffer a substantial inability to perform his essential employment tasks as a commercial window washer. We accept that Dr. Nathanson indicated the applicant was substantially unable to perform the essential tasks of his employment, and that this disability would last more than 12 weeks. However, we place little weight on this medical opinion because during the period that elapsed between the accident and January 20, 2021, when the OCF-3 was completed, we find the applicant did not point to corroborating evidence of a substantial inability to perform his work duties.

32In fact, the OCF-2 completed in December 2020, shows the applicant’s last day worked in 2020 was November 5—almost four months after the accident—and that the employer anticipated returning the applicant to work on April 1, 2021, following a seasonal layoff during the winter months. The applicant’s return to work following the accident is also substantiated by his pay stubs, which show he was paid for consecutive weeks from the time of the accident up to the end of the 2020 season. In our view, this evidence, when taken together on balance, does not support the applicant’s testimony that he suffered a substantial inability to perform his essential work duties during the time that led up to the OCF-3 being completed by Dr. Nathanson.

33We also find the post-accident medical evidence leading up to the completion of the OCF-3, and thereafter, does not show the applicant experienced a substantial inability to perform essential work duties.

34While the applicant testified that he continued to work in 2021 and 2022, we are not satisfied there is sufficient medical evidence to support his recollection that he worked only up to July in both years because of his accident-related injuries. The applicant did not point to a medical opinion that confirmed he was unable to work during these periods. For 2021, the Ontario Health Insurance Plan (“OHIP”) summary shows only one entry during the applicant’s seasonal work period. This is an October 11 visit with Dr. Calvin Lian at Humber River Hospital, and we were not pointed to corresponding medical records of this visit. In 2022, there are entries concerning three visits in February that are addressed later in this decision, but nothing to support the applicant was unable to continue working past July.

35We first address the medical evidence relating to the applicant’s right-hand injury. While the hospital report completed the day after the accident notes worsening post-accident right hand discomfort (i.e., his “pinky” finger), this report also notes the applicant disclosed his finger pain had actually started before the accident and was likely owing to an infection. Further, the applicant’s grip strength was determined to be normal upon examination and he demonstrated he could flex his pinky finger despite the discomfort. The x-ray taken of the applicant’s finger produced normal results. No work-related limitations or restrictions are noted in the report, and the applicant did not point to any further medical treatment or assessment records concerning his right-hand injury. In our view, this evidence does not establish that the applicant’s right-hand injury caused a substantial inability to perform essential work tasks.

36Pertaining to the applicant’s back, we find the evidence is inconsistent as it relates to the applicant’s first post-accident hospital visit on July 16, 2020. The intake record describes the applicant’s chief complaint as back pain arising from the accident, with his finger pain being a secondary complaint. However, the consultation note produced by the attending emergency room physician, Dr. Danish Khan, says the applicant denied any injury other than to his finger. Dr. Khan specifies that the applicant denied back pain, headaches, nausea, vomiting, and any other extremity (i.e., shoulder) injuries. Dr. Khan’s report addresses only the applicant’s finger complaints, and provides no evidence of back pain or investigations of the applicant’s back. Further, the applicant testified that his back pain did not evolve until later because he was in a state-of-shock post-accident, which is corroborated in a later medical report by Dr. Stanley Salkauskis (addressed more fully in the next paragraph) that says the applicant disclosed his back pain started no earlier than July 26, 2020. As such, we place little weight on these records as evidence of back pain at the time of the accident.

37Further, we find the report of Dr. Salkauskis, dated July 28, 2020, does not support the applicant’s IRB claim. While Dr. Salkauskis’ examination determined the applicant’s lower back had a restricted range of movement that was accompanied by “quite a bit” of muscle spasm with secondary spinal scoliosis, we find his report does not speak to corresponding work limitations or restrictions despite noting the applicant developed this pain upon returning to work as a high-rise window cleaner just one day earlier. And there are no complaints of work performance or impairments voiced by the applicant in Dr. Salkauskis’ report.

38We were not pointed to any further medical records that deal with the applicant’s back pain until more than 18 months later on February 9, 2022. We are not convinced this evidence supports the applicant’s IRB claim because Dr. Khaled Alnhisi assessed the applicant’s range of movement in his lower back as normal. A week later on February 16, 2022, the applicant told Dr. Alnhisi he was “feeling OK” from a musculoskeletal perspective, and this is corroborated by a concurrent physical examination that did not raise any concerns, as well as a same-day x-ray completed by Dr. Morris Goldfinger that produced a normal examination of the applicant’s lower back and tailbone. While the applicant pointed to an entry in Dr. Abdelsalam’s clinical notes and records (made on July 15, 2022) as evidence of ongoing range of movement issues in the applicant’s back, we disagree with this interpretation because it is not clear what finding, if any, was made by Dr. Abdelsalam in this regard.

39Turning now to the applicant’s right shoulder, the applicant produced a medical report completed by Dr. Alnhisi on February 9, 2022, which notes the range of movement in the applicant’s right shoulder was restricted. However, we find this report does not offer any recommendations pertaining to the applicant’s work duties, and neither Dr. Alnhisi nor the applicant voice concerns about the work task implications posed by the applicant’s right shoulder function. We further find that an ultrasound report completed by Dr. Goldfinger that same day—which determined the biceps tendon was unremarkable, the rotator cuff was intact, and the bursa was clear (i.e., a normal examination)—is at odds with the applicant’s claim. In fact, the following week, Dr. Alnhisi reported no acute changes to the applicant’s limb movements, and the applicant did not voice any musculoskeletal concerns. In our view, this evidence concerning the applicant’s back pain, when taken together on balance, is inconsistent with a substantial inability to perform essential work duties.

40Similarly, we are not convinced the applicant’s headaches contribute to his claim of being substantially unable to perform his essential work duties. While the applicant pointed to post-accident visits to Humber River Hospital with complaints of headaches—and testified that his headaches worsened after the accident and required stronger medication—we find Dr. Magder’s report (dated December 14, 2020) is more persuasive. Dr. Magder documented a two-year history of headaches, which predates the accident. The applicant testified that this was not correct, but we place less weight on the applicant’s recollection because a medical note (dated June 6, 2019) completed by Dr. Ghanim Abdelsalam corroborates that the applicant’s headaches started prior to the accident. Dr. Magder goes on to note episodes occurring once or twice per week with symptoms of mild to moderate intensity that were reliably alleviated within 10 minutes by taking Ibuprofen. Dr. Magder’s examination produced normal results (i.e., no evidence of impairments, restrictions, or limitations owing to headaches). Dr. Magder diagnosed muscle tension headaches attributed to lifestyle issues and psychosocial stress. He recommended that the applicant improve his nutrition, involve himself in regular aerobic exercise, and continue taking Ibuprofen. In our view, this evidence does not support the applicant’s IRB claim because it does not establish that the applicant’s headaches caused him to be substantially unable to effectively perform essential work tasks.

41In conclusion, when we take all the evidence together on balance, we find the applicant did not suffer a substantial inability to perform his essential work tasks in the first 104 weeks after the accident. As such, we do not agree the applicant is entitled to an IRB.

After the first 104 weeks that followed the accident (from July 16, 2022, and onwards)

42We find the applicant has failed to demonstrate he is entitled to an IRB after the first 104 weeks following the accident.

43Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after the first 104 weeks of disability. This requires the applicant to show he suffers, as a result of the accident, a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

44The applicant submits that he continues to suffer from lower back, shoulder, and headache pain sustained from the motor vehicle accident. He says he has started a new job driving trucks, but that his accident-related injuries prevent him from working more than 15 hours per week. The applicant relies on the clinical notes and records of Dr. Musbah Farhat (physician).

45The respondent argues that the applicant has not produced sufficient medical evidence to meet the complete inability test.

46We find that the limited evidence in the post 104-week period is insufficient to support the applicant’s IRB claim. The applicant testified that he was able to obtain his truck-driver licence and is currently employed in this role for 15 hours per week. In our view, this shows the applicant is engaging in employment for which he is reasonably suited by training.

47While we accept that Dr. Farhat referenced recurrent back pain and a prescription for pain medication in his note dated August 3, 2022, we find he assessed the applicant’s range of movement in his lower back to be normal, and that Dr. Farhat did not indicate the applicant was incapable of working or that he should stop working. In our view, this evidence does not support the applicant’s IRB claim.

48On balance, we conclude this evidence, when taken together, fails to demonstrate the applicant suffers, as a result of the accident, a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. We therefore do not agree the applicant is entitled to an IRB.

Interest

49Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits owing, therefore interest does not apply.

ORDER

50The applicant is not entitled to an IRB and no interest is payable. The application is dismissed.