Licence Appeal Tribunal File Number: 22-010083/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:
Alisha Willis
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATORS:
Sam Moini, LAT member Brian Norris, LAT member
APPEARANCES:
For the Applicant:
Terio Francis, Counsel
For the Respondent:
Andrea Bandow, Counsel
Court Reporter:
Beryl Capicciotti
Heard by Videoconference:
December 12, 13, and 14, 2023
OVERVIEW
1Alisha Willis (the “applicant”) was involved in an automobile accident on June 10, 2021, 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 Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The applicant sought to add a treatment and assessment plan for a chronic pain assessment to the list of issues in dispute for the hearing. She submits that the treatment and assessment plan has similar facts and that addressing it will not add time to the hearing or prejudice to the respondent.
3The respondent submits that it would be unfair and prejudicial to add the issue at this point and notes that the request is untimely. It submits that the treatment and assessment plan was denied in July 2023 and that the applicant had sufficient opportunity to give the respondent notice that it sought to add the issue. Further, the respondent submits that the applicant has failed to comply with Rule 15.1 of the Licence Appeal Tribunal Rules (the "Rules").
4We refused the applicant’s request because she failed to comply with the Rules in both timing and substance. She was late notifying the respondent of the issue and never provided motion materials for the respondent and Tribunal to consider. We note that the applicant made no effort to add the issue within the requisite timelines, leaving the respondent unable to prepare to defend the motion.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from July 12, 2022 to July 10, 2023?
ii. Is the respondent liable to pay an award under section 10 of Regulation 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
6The applicant is not entitled to income replacement benefits as claimed.
7No award or interest is payable.
BACKGROUND
8The applicant was driving a vehicle that was struck on the front driver’s side by another vehicle while traversing a residential intersection. No emergency personnel attended at the scene of the accident. The applicant was taken by a tow truck to a collision reporting centre and later drove home in a rental vehicle. She went to a walk-in clinic a month later and was prescribed pain medication and advised to continue with physiotherapy and engage in psychological treatment. She was treated for physical and psychological injuries, which the respondent funded.
9The applicant was unable to work as a result of the accident and the respondent paid her IRBs. Following insurer’s examinations (“IEs”), the respondent determined that the applicant no longer qualified for IRBs and stopped payment. The applicant disputes the respondent’s decision and claims entitlement to IRBs for the period from July 12, 2022 to July 10, 2023.
10The applicant holds the onus in demonstrating that she is entitled to IRBs for the period claimed.
INCOME REPLACEMENT BENEFITS
11During the first 104 weeks after an accident, IRBs are payable to an insured person who is substantially unable to perform their essential tasks of employment as a result of the impairment (the “pre-104 test”). After the first 104 weeks after the accident, an IRB is payable to an insured person if they suffer a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience (the “post-104 test”).
12To demonstrate entitlement to IRBs, the applicant must establish what her essential tasks of employment are and must show that her accident-related injuries impair her from completing those tasks. The applicant was not employed at the time of the accident but qualified for IRBs pursuant to section 5(1)(ii)(A) as she was receiving Employment Insurance (“EI”) benefits at the time of the accident, is over the age of 16, and was substantially unable to perform the essential tasks of the employment she spent the most time during the 52 weeks before the accident.
Essential tasks of employment
13We find that the applicant’s pre-accident employment was sedentary in nature and involved virtually no lifting or grabbing. She did not submit an employment file as evidence and did not provide any documents to confirm her essential tasks of employment prior to the accident. The clearest description of the applicant’s pre-accident employment tasks is in the insurer’s examination (“IE”) report by Dr. F. Salerno, psychologist, dated June 21, 2022. Dr. Salerno recorded the applicant’s description of her employment. She reported that her primary task of employment was data input to permit the transition from QuickBooks desktop to QuickBooks online. She also reported that she was required to input data with respect to expenses and payroll, create invoices, print shipping labels, book flights and travel for executives, and use the telephone and email.
No evidence of disability during the period claimed
14We find that the applicant has not provided any medical evidence contemporaneous to her claim to demonstrate that she is disabled from completing her essential tasks of employment as a result of the accident.
15No medical professional has opined that the applicant was unable to work during her period of claim. The applicant provided the clinical notes and records (“CNRs”) from the walk-in clinic she frequents, but the records are from 2021 and provide no information on the applicant’s medical condition during her period of claim. Likewise, the CNRs from the physiotherapy clinic she attended include only two entries in 2023, both in April, and neither indicate that the applicant is disabled from working. The OCF-3/disability certificate dated June 28, 2021, anticipated her period of disability to be no more than 9-12 weeks. We find that these documents are unpersuasive in determining whether the applicant is entitled to IRBs for the period from July 12, 2022 to July 10, 2023.
16We find that the applicant’s psychological treatment records and reports are insufficient to determine that she qualifies for IRBs. The psychological report dated November 4, 2021 by M. Decaire, psychologist, and H. Ilios, registered psychotherapist, holds little weight because it pre-dates the period of claim and was issued prior to the applicant engaging in psychotherapy. The progress report by U. Poopalarajah, registered psychotherapist (qualifying), dated June 25, 2022 notes the applicant has demonstrated considerable growth but has ongoing feelings of fearfulness while driving or travelling as a passenger. It appears from the progress report that the applicant resumed driving as it does not indicate that she avoids it. Moreover, and more relevant for this hearing, the progress report is silent on the applicant’s ability to work or whether her psychological symptoms continue to have any impact on her ability to work. The CNRs from U. Poopalarajah include no treatment notes to shed light on the Applicant’s condition and whether she is unable to complete the essential tasks of an administrative assistant.
17We find the testimony of M. Decaire, psychologist, to be unpersuasive as well. Mr. Decaire was not involved in the production of the progress report, has not seen treatment records since 2022 and is unaware of the applicant’s function beyond June 2022. He never met or spoke with the applicant. Instead, Mr. Decaire’s opinions and recommendations pertaining to the applicant are based entirely on the progress report and information from H. Ilios, whom he was the supervisor of. We find that Mr. Decaire’s recommendations hold no weight because they are made second-hand to the recommendations of H. Ilios and are from a period pre-dating the applicant’s claim for IRBs.
18The applicant also enrolled in a computerized accounting program during the period of claim, suggesting that she is not disabled from completing her essential tasks of employment. The applicant started the program in September 2022 and continued it through to completion in June 2023. She confirmed in testimony that she applied for the program herself in May or June of 2022 and that it consisted of computer work. The panel finds that this is evidence that the applicant is not disabled from completing her essential tasks as an administrative assistant because it demonstrates that she has the cognition to complete forms and apply for a program she described to be like an apprenticeship, and she was able to complete the required computer work for the program.
19The insurer’s examinations are contemporaneous with the applicant’s claim for IRBs and find that she is not disabled from completing her essential tasks of employment. Dr. D. Nikneshan, neurologist, assessed the applicant and issued an IE report dated June 21, 2022. Dr. Nikneshan acknowledged that the applicant suffers from cervicogenic headaches and recommended that she reduce the use of analgesics and try amitriptyline, magnesium, and riboflavin. Otherwise, Dr. Nikneshan’s examination was normal. The report concluded that the applicant does not suffer a substantial inability to engage in office work like she did prior to the accident. Dr. F. Salerno, psychologist, also assessed the applicant and issued an IE report dated June 21, 2022. Dr. Salerno acknowledged the applicant’s anxiety and depression symptoms, particularly her driving anxiety, but also noted that the applicant enrolled in a course to upgrade her skills and intended to return to work once she completed the IEs. Dr. Salerno concluded that the applicant was able to perform her pre-accident employment duties.
20Lastly, it appears that there may be other, more significant factors impeding the applicant’s ability to return to work. In testimony, she stated that factors contributing to her inability to return to work included the pandemic, loss of childcare and the uncertainty relating to the kids’ schooling and finding employment that works with her childcare needs. It was only when she was asked specifically about her psychological limitations that she stated that she is unable to get a good sleep due to pain and stiffness, is unable to sit for long periods of time without discomfort, headaches, and fatigue. This evidence, absent a compelling medical opinion to support the complaints, is insufficient to find that the applicant suffers a substantial inability to complete her essential tasks of employment.
21Considering the above, we find that the applicant has not met her burden to demonstrate that she meets the test for IRBs and conclude that she is not substantially disabled from completing her essential tasks of employment.
INTEREST
22Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the applicant is not entitled to the benefits in dispute, it follows that she is not entitled to interest.
AWARD
23The 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. Having found that no benefits are payable, it follows that none were unreasonably withheld or delayed. As a result, the applicant is not entitled to an award.
CONCLUSION AND ORDER
24We find and order:
i. The applicant is not entitled to income replacement benefits from July 12, 2022 to July 10, 2023.
ii. The applicant is not entitled to interest, nor an award.
iii. The application is dismissed.
Released: May 27, 2024
Sam Moini
Adjudicator
Brian Norris
Adjudicator