Licence Appeal Tribunal File Number: 22-006213/AABS
In the matter of an application pursuant to section 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Choul Lol
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Taivi Lobu
APPEARANCES:
For the Applicant:
Choul Lol, Applicant
Howard R. Blitstein, Counsel
For the Respondent:
Jane Cvijan, Counsel
James Armstrong, Counsel
Court Reporter:
Sharon Kemp
Heard by Videoconference:
September 11 and 12, 2023
OVERVIEW
1Chou Lol, the applicant, was involved in an automobile accident on August 26, 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 the respondent, Travelers Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit from September 2, 2021, to date and if so in what amount?
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
3I find that:
i. The applicant is entitled to an income replacement benefit from September 2, 2021, to August 26, 2023, in the amount of $384 per week.
ii. The respondent is not liable to pay an award under section 10 of Regulation 664.
iii. The applicant is entitled to interest on overdue payment of benefits as required by section 51 of the Schedule.
ANALYSIS
Requirements for an income replacement benefit
4Pursuant to section 5(1)1.i of the Schedule, an insurer is required to pay an income replacement benefit to an insured person if the insured was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment .
5Pursuant to section 5(1)1.ii, an insurer is also required to pay the benefit if the insured person was not employed at the time of the accident but was employed for 26 out of 52 weeks before the accident or was receiving employment insurance benefits under the Employment Insurance Act at the time of the accident, was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.
6As set out in section 6(2)(b) of the Schedule, to qualify for an income replacement benefit after 104 weeks of disability, an insured person must show a “complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
7The onus is on the applicant to show he meets the requirements on the balance of probabilities.
The applicant’s work status as of the date of the accident entitles him to income replacement benefits under section 5(1)1.i
8In November 2020, the applicant who is in his mid-30s, went on parental leave from his job as a warehouse cleaner at Domino’s Pizza. At the time of the August 26, 2021, accident, the applicant had yet to return to Dominos but was working in a temporary position through an employment agency, AllStaff, as a machine operator at PWO.
9The respondent submits that the applicant is not eligible for an income replacement benefit because the application for accident benefits (OCF-1) which he completed on September 28, 2021, indicated that on the date of the accident he was receiving employment insurance benefits and was not working, neither of which is true.
10While I agree with the submission of the respondent that the applicant was not eligible under the criteria of section 5(1)1.ii of the Schedule as he was not receiving employment insurance at the time of the accident and had not worked for 26 out of 52 weeks before the accident, I do not find that the fact that the applicant provided wrong information in the application for accident benefits disqualifies him from entitlement he may otherwise have.
11The applicant is neither a sophisticated consumer nor a reliable historian. Given that it is well established that the Schedule is to be applied in accordance with the consumer protection mandate of the legislation, even if information provided is wrong or unreliable, this does not automatically disqualify the applicant from entitlement to a benefit to which he is otherwise entitled. The key question is whether the applicant has shown entitlement to an income replacement benefit on a balance of probabilities.
12The applicant reported to the respondent’s adjuster in August 2021 that he was working as a machine operator at the time of the accident and was on parental leave from his work as a warehouse cleaner at Domino’s Pizza. Domino’s Pizza confirmed that the applicant had gone on parental leave with an unknown return date. While the applicant is not eligible for an income replacement benefit based on his work at Domino’s Pizza as he was no longer receiving parental leave benefits through employment insurance and had not worked 26 out of 52 weeks, the applicant had reported to the respondent that he was actively employed in other work on the date of the accident.
13Given that the applicant’s actual employment on the date of the accident would qualify him under section 5(1)1.i, that the applicant’s work status on the date of the accident was known to the respondent, and the consumer protection nature of the accident benefits legislation, I find that the applicant’s entitlement should be determined under section 5(1)1.i, based on his work as a machine operator at PWO through the AllStaff agency.
As a result of the accident, the applicant is substantially unable to carry out the essential tasks of his pre-accident employment.
14The applicant submits that the accident resulted in him being substantially unable to carry out the essential tasks of his pre-accident work. He relies primarily upon the evidence of Dr. Ali Ghouse, who carried out a physiatry assessment at his request in February 2023.
15The respondent on the other hand, submits that the applicant has not demonstrated that he has an accident-based injury resulting in an inability to work. The respondent points out that after taking two days off work at PWO after the accident, he worked a 40-hour week. The respondent also submits that Dr. Lindsie Ferland, a chiropractor who completed the initial disability certificate, cleared the applicant to work at Domino’s, as did physiatrist Dr. Andrew Gwardjan, who examined the applicant at the request of the respondent in January 2022.
16Ultimately, I prefer the position of the applicant. That the applicant continued with his work at PWO for over a week after the accident is a factor to be considered, but it is not determinative. Between August 30, 2021 and September 30, 2021 the applicant worked for a total of 12 days. He worked at AllStaff/PWO from August 30 to September 3 and September 7, 2021; at AllStaff/AirBoss on September 22 and 23; and Bock North America September 26 to 30, 2021. I accept the applicant's testimony that he could not continue with the work as it was too demanding. The employment and financial documentation supports the applicant’s evidence that he did not work after September 2021.
17Although a functional abilities evaluation initiated by the respondent in December 2021 could not be completed because of safety reasons associated with the applicant’s blood pressure, I find that the balance of other evidence is sufficient to demonstrate that the applicant meets the requirement for an income replacement benefit within the first 104 weeks of the accident.
The applicant was not cleared to carry out the essential tasks of his employment.
18The respondent’s submission that Dr. Ferland had cleared the applicant to return to work at Domino’s is concerning: a review of the evidence shows that Dr. Ferland did not clear the applicant to carry out essential tasks of his employment at Domino’s. Dr. Ferland completed a disability certificate for the applicant on September 29, 2021 which showed that the applicant had a lumbar sprain and strain and unspecified pain, and anticipated a 9 to 12 week duration of disability. Subsequently, in a report dated December 21, 2021, Dr. Ferland states that the applicant is not able to do his pre-accident work duties. I have not been directed to any contrary opinion from Dr. Ferland.
19While I recognize that there is an email of November 8, 2021 from Dr. Ferland to the respondent’s adjuster, which states that the applicant had been cleared for “modified return to work” based on having “cleared standing 15-30 mins, sitting up to 30 mins” and “push/pull with 10 lbs,” the applicant’s work as a cleaner at Domino’s does not fall within the parameters of the clearance as outlined by Dr. Ferland. In a work demands analysis carried out in December 2021 at the respondent’s request, kinesiologist Ms. Amanda Rudzknski determined that the applicant’s work at Domino’s was in the “heavy strength” category, requiring the handling of objects over 44 pounds.
20Regarding the applicant’s ability to perform the essential tasks of his employment as a machine operator at PWO, in addition to the applicant’s testimony of having to stand throughout their 8-hour shift, documentation from PWO specified that the job required lifting objects over 25 pounds. I find that the evidence of the applicant’s pre-accident work duties, whether at Domino’s or at PWO, goes beyond work clearance parameters identified by Dr. Ferland in November 2021.
Accident trauma caused a pre-existing condition to become symptomatic.
21Dr. Ghouse assessed the applicant on March 20, 2023, and concluded that “[o]n a balance of medical probabilities, Mr. Lol is considered to have sustained a permanent and serious impairment of an important physical function as a result of injuries sustained in the motor vehicle accident.” Dr. Ghouse testified that the applicant had pre-existing degenerative changes and that the accident caused the changes to become symptomatic. He reported that the applicant had become limited in deep bending, repetitive bending, prolonged sitting, and forward stooped postures, as well as being limited with moderate to heavy lifting and carrying activities.
22The respondent previously obtained a report from physiatrist Dr. Gwardjan who assessed the applicant on January 18, 2022. At that time, Dr. Gwardjan determined that the applicant had sustained uncomplicated soft tissue injuries, predominantly to the lower back, without objective evidence of serious musculoskeletal trauma. Further, Dr. Gwardjan found that the applicant did not have any pre-existing medical conditions which would contribute to the applicant’s clinical presentation, that the applicant had self-limited forward flexion, which was not supported by any positive orthopaedic or peripheral neurological findings, and that from a physical perspective, there was no evidence of ongoing motor vehicle accident-related musculoskeletal impairments.
23I prefer the conclusions of Dr. Ghouse over those of Dr. Gwardjan. Dr. Ghouse’s assessment was based on more fulsome medical evidence. Documentation reviewed by Dr. Gwardjan in his 2022 assessment did not include any imaging reports or investigations of the applicant’s lumbar spine, nor did it include a contemporaneous record of the applicant’s reported symptomatology over time documented in his family physician’s chart. Contemporaneous documentation and medical investigations are valuable in any event, particularly where the person being assessed may be challenged in conveying clear and accurate information.
24Dr. Gwardjan expressly noted that no pre-existing condition contributed to the applicant’s clinical presentation. Dr. Gwardjan did not have the benefit of an MRI scan which was carried out in May 2022, which was after Dr. Gwardjan’s assessment. The MRI report documented mild multilevel degenerative changes throughout the lumbar spine, multilevel bilateral neural foraminal narrowing, which the radiologist opined was more pronounced than expected given a mild degree of degenerative change in lumbar spine, a notable disc bulge, and additional degenerative changes at L5/S1 which caused severe right and moderate to severe left neural foraminal narrowing.
25Dr. Ghouse, who had the benefit of both the applicant’s medical chart and the MRI report when conducting his assessment in 2023, testified that physical trauma can aggravate degenerative changes and cause them to become symptomatic, that the applicant had slippage in his lumbar spine, which causes instability, and that the applicant’s pre-existing degenerative changes were made symptomatic by the trauma of the accident. I find that Dr. Ghouse’s assessment is consistent with the MRI report of the applicant’s lumbar spine and the timeline of the applicant’s symptomatology as documented by his family physician’s chart. Prior to the first post-accident visit on August 28, 2021, Dr. Zamil’s medical chart did not indicate any pain-related or musculoskeletal complaints. However, the record of the applicant’s visits with Dr. Zamil from August 28, 2021 onward document continued back pain issues, including radiation to the legs, medication for pain control, the ordering of a lumbar spine x-ray in November 2021, an MRI in May 2022, and a consultation with a neurosurgeon/spine surgeon carried out on November 1, 2022.
26There was no updated report or addendum from Dr. Gwardjan included in the hearing evidence showing that he had considered the additional medical evidence which Dr. Ghouse relied upon in arriving at his findings.
27I note that Dr. Gwardjan stated in his report that the applicant’s reports of ongoing pain did not correlate with the mechanism of injury. However, the meaning of this statement is not self-evident in the context of the hearing evidence. With regard to the mechanism of the accident, both the back and front of the applicant’s car had buckled from the force of the impacts when the applicant’s car was struck from behind and pushed into the vehicle in front. The applicant’s vehicle was written off because of the extent of the damage. Dr. Ghouse testified that the applicant had lower back restrictions in forward and backward movement.
28While Dr. Gwardjan had reported finding that the applicant had self-limited restriction in forward flexion, for clarity, I note that Dr. Ghouse opined that the applicant’s post-accident restrictions were not self-imposed, testifying that when restrictions are self-imposed rather than due to an underlying pathology, there are usually restrictions with range of motion in all directions. Dr. Ghouse observed that this was not the case with the applicant – pointing out that the applicant showed good side flexion despite being limited in forward to backward movement.
29The evidence shows that Dr. Ghouse’s assessment was more thorough than that of Dr. Gwardjan. As outlined, Dr. Ghouse had the benefit of additional medical documentation. Dr. Gwardjan’s report showed the duration of his assessment as one hour. It did not indicate that his document review was outside of the one hour assessment. Dr. Ghouse testified that his assessment included one and a half hours reviewing the applicant’s history, accompanied by a physical examination that lasted 45 minutes to one hour. Both Dr. Gwardjan and Dr. Ghouse observed that the applicant had normal muscle bulk and strength in his limbs; however, Dr. Ghouse also found that the applicant had weakness with core abdominal muscles, a matter not addressed by Dr. Gwardjan.
30Dr. Ghouse assessed the applicant’s abilities in reference to his employment as a machine operator in auto-parts manufacturing at PWO and concluded that the applicant was limited in repetitive bending, prolonged sitting and forward stooped postures, with limitations in moderate to heavy lifting. As noted earlier, the applicant described his work at PWO as involving repetitive bending and lifting, and PWO’s documentation shows that the work required the ability to lift more than 25 pounds.
31I find that the evidence has established on a balance of probabilities that the applicant sustained a post-accident inability to carry out employment tasks in which he was engaged at the time of the accident. There is no suggestion from Dr. Ghouse’s March 2023 assessment that the applicant had worked since September 2021 or that he was expected to return to his pre-accident functioning. This is consistent with the applicant’s tax returns for 2021 and 2022, with the applicant’s return for 2021 showing employment income correlating with his earnings in August and September of that year, and with the applicant’s sole source of income for 2022 being social assistance. There is no suggestion of improvement in the applicant’s physical status in 2023.
32While the respondent submits that the applicant has not produced an Ontario Works file as ordered at the case conference, I do not find that this diminishes the applicant’s entitlement to the benefit claimed. As set out in section 60 of the Schedule, the respondent is required to pay benefits under the Schedule even though the insured person has received social assistance.
33I recognize that an entry in Dr. Zamil’s medical chart for May 26, 2022, states that the applicant was carrying a heavy object at work that weighed over 100 pounds. Despite this, in the absence of other evidence of the applicant having worked after September 2021, I am not prepared to rely on this entry to find that the applicant was engaged in such work in 2022, as opposed to at a previous time. Prior to going on parental leave, the applicant‘s work entailed heavy lifting, and Dr. Zamil provided a letter in February 2023 stating that this May 26, 2022 entry was in error and that the patient was not working.
34The respondent submitted that Dr. Zamil had been on the applicant’s witness list, but the applicant had waited until the start of the hearing to notify the respondent that he was not calling the physician. I recognize that the respondent did not have opportunity to question Dr. Zamil, and have considered this when assessing the evidence.
35Specifically, regarding the May 26, 2022 entry and the subsequent letter from Dr. Zamil indicating that it was in error, broader evidence shows that the applicant was not always clear as to what was being asked, lending support to Dr. Zamil’s statement that the chart entry was in error. For example, a treating occupational therapist in an October 25, 2021, noted that it is “hard to say if information was fully understood due to possible language barrier.” In addition, in the course of a psychological assessment carried out at the request of the insurer, Dr. Reis observed that the applicant’s responses showed confusion, inattention or idiosyncratic responding.
36The applicant’s CRA returns are consistent with the employment documentation, showing that the applicant has not worked since the end of September, 2021 and that he has been on social assistance thereafter.
Conclusion – The applicant is entitled to an income replacement benefit within the first 104 weeks after the accident.
37I accept Dr. Ghouse’s conclusion that the trauma of the accident caused the applicant’s pre-existing condition with his lumbar spine to become symptomatic, and that on the balance of medical probabilities, the applicant’s back-related symptoms were causally related to the motor vehicle accident. I find that the accident resulted in the applicant’s substantial inability to continue to perform the essential tasks of his work as a machine operator from September 2, 2021, to August 26, 2023.
Entitlement after 104 weeks: The applicant has not shown a complete inability to engage in any employment for which the applicant is reasonably suited by education, experience or training.
38As noted earlier, the test for an income replacement benefit changes after 104 weeks. As of August 26, 2023, to continue to qualify for the benefit the applicant must meet the test under section 6(2)(b) of the Schedule and show a “complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
39The applicant submitted that the respondent should be required to pay an income replacement benefit to the applicant until and unless assessments show that he is not entitled to the benefit. The respondent took the position that the burden of proving entitlement remains on the applicant. I agree with the respondent. There is no mechanism that shifts the burden to the insurer with respect to entitlement to income replacement benefits after the 104-week mark. The onus is on the applicant to show that he meets the test under section 6(2)(b) of the Schedule.
40It was submitted on behalf of the applicant that his education was limited, he had not completed his high school credits, he faced communication barriers, and his experience was in factory work and physical labour. The respondent submitted that the applicant had not advanced reliable or adequate evidence of his inability to work and also directed me to evidence of the applicant having a certificate in Microsoft Word and in forklift driving.
41I find that the applicant has not met the burden of producing adequate evidence to show that he meets the requirements for the benefit under the more stringent test which applies 104 weeks after the accident. While both the applicant’s and respondent’s psychological assessors found that the applicant suffered from a major depressive disorder because of the accident, neither assessor concluded that this precluded him from being able to work.
42As referenced earlier in this decision, Dr. Ferland had cleared the applicant in November 2021 for situations requiring standing for 15 to 30 minutes, sitting up to 30 minutes, and “push/pull with 10 lbs.” Dr. Ghouse testified that the applicant may have the physical ability to carry out sedentary work. While it is clear that employment options are limited for the applicant given his restrictions, the applicant did not advance adequate evidence to show that he had a complete inability to carry out any work in factory or other settings within the scope of his education, training and experience. Accordingly, I find that the applicant has not demonstrated entitlement to income replacement benefits after August 26, 2023.
Weekly quantum of income replacement benefits
43With regard to quantum of benefits, the applicant submitted that he was entitled to the maximum weekly amount of $400 for the income replacement benefit, stating that his income from the year prior to the accident would lead to an income replacement benefit well in excess of the $400 weekly maximum. The respondent submitted that the applicant had not met his burden of demonstrating quantum of benefit.
44While I agree with the applicant that he is entitled to an income replacement benefit based on his pre-accident income, I find that he has not demonstrated entitlement to the $400 weekly benefit claimed. The evidence available at the hearing relating to the applicant’s eligible income within the 52 weeks immediately prior to the accident shows approximately $10,000 in insurable earnings through employment at Domino’s Pizza; $17,500 for parental leave benefits from Employment Insurance ($500 per week for 35 weeks); and approximately $1,000.00 in earnings from PWO/AllStaff in employment from August 16 up to the date of the accident. Seventy percent of a weekly sum calculated on the basis of the above estimates is less than $400, equating to a weekly amount of about $384.
45As neither party has produced any calculations for the income replacement benefit at issue, as the applicant has not requested that the respondent pay for the preparation of a report to calculate the applicant’s income from employment pursuant to section 7(4)1, as I find that the applicant is not entitled to the quantum of the $400 claimed, and as the respondent has not identified any alternative quantum based on pre-accident income, I find that the applicant is entitled to a weekly amount of $384 for an income replacement benefit, starting from September 2, 2021 (after the first week of disability as per section 6(2)(a) of the Schedule) up until 104 weeks post accident – August 26, 2023.
46While the respondent submits that for the benefit to be payable, the applicant must prove entitlement to the quantum of benefit for each week of income replacement benefit, I note that the quantum of benefit is based on pre-accident earnings. I have not been directed to any provision in the Schedule which requires claimants, once found eligible, to re-apply each week. The respondent does, however, have the authority to reduce the amount of the benefit payable if the applicant has received employment or self-employment income: Specifically, under section 7(3)(a) of the Schedule, the respondent may deduct from the weekly amount, 70 percent of any gross employment income or income from self-employment received during the period in which the applicant is eligible for the benefit. Under section 7(3)(a) the offset is at the discretion of the respondent. Accordingly, I will not make an order in this regard.
Interest
47The applicant is entitled to interest on overdue payment of benefits as required by section 51 of the Schedule.
Award
48The 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. As there were several challenges which contributed to delays in this matter, including confusion about information received from the applicant and employer delays in providing required information, I do not find an award to be appropriate.
ORDER
49I order as follows:
i. The applicant is entitled to an income replacement benefit from September 2, 2021, to August 26, 2023, in the amount of $384 per week.
ii. The respondent is not liable to pay an award under section 10 of Regulation 664.
iii. The applicant is entitled to interest on overdue payment of benefits as required by section 51 of the Schedule.
Released: January 26, 2024
Taivi Lobu
Adjudicator