Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-008743/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:
Hilowie Hassan
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Mohamed Doli, Counsel
For the Respondent: Noella Thompson, Counsel
HEARD: By way of written submissions
OVERVIEW
1Hilowie Hassan, the applicant, was involved in an automobile accident on December 4, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Productions
2The respondent submits that the applicant failed to comply with the Case Conference Report and Order (“CCRO”) of April 3, 2023, which required him to produce various documents, and requests that an adverse inference be drawn. The respondent submits that the following records have not been provided to date:
i. Clinical notes and records of all treating medical/rehabilitation practitioners from three years prior to the accident to date;
ii. Employment file;
iii. WSIB file;
iv. Union file;
v. Collateral benefits file;
vi. CPP/EI/ODSP files, if any;
vii. Prescription summaries from December 4, 2018 – January 1, 2022; and
viii. Details regarding an accident of June 13, 2022, and confirmation as to whether an accident benefits claim was made.
3The respondent submits that the applicant made its requests for records after the due date in the CCRO, and only sent one request letter for the documents listed. The respondent argues that sending one request letter is not sufficient to satisfy a production request.
4The applicant submits that the respondent has been provided with the records of all of his treating physicians and rehabilitation clinics. He also points out that he came to Canada in 2019, so there are no records prior to then. The applicant also argues that he made requests for the employment file, WSIB file, and union file, and that the case conference order does not require him to make more than one request. He argues that he has made best efforts to comply with the order.
5With respect to the 2022 accident, the applicant submits that he has not made an application for accident benefits or completed an OCF-1 form for that accident, however his treating physiotherapist submitted a treatment plan for that accident without his knowledge. It appears that the applicant received a copy of the June 13, 2022, accident benefits file on or around June 30, 2023, but did not provide it to the respondent. An authorization to obtain the complete file was provided to the respondent on November 24, 2023, and the respondent subsequently obtained a copy. While the applicant did not comply with the production deadline in the order, I do not find that this alone warrants an adverse inference being drawn with respect to the June 13, 2022 accident benefits file. The respondent has the documents and has relied on some of them in its submissions. The respondent has not explained what further details it requires regarding the accident of 2022 that it does not already have in its possession. I am accordingly not prepared to draw an adverse inference with respect to item viii above.
6The production request for the clinical notes and records of all treating medical/rehabilitation practitioners was open-ended. The applicant has provided various clinical notes and records to the respondent. Absent further information about what specifically the respondent is seeking and has not received, I am not prepared to draw an adverse inference in this regard.
7The applicant did provide the respondent with prescription summaries, however these records only go back to September 2021, despite the fact that the applicant arrived in Canada in 2019. Further, the records show that the applicant’s family physician prescribed medication prior to September 2021. The applicant has not provided any explanation for his failure to produce these records. If I find that these documents are relevant in my analysis, I am prepared to draw an adverse inference from his failure to provide the prescription summaries from the time he arrived in Canada until September 2021.
8The evidence before me is that the applicant sent one letter on June 9, 2023, to the applicant’s employer requesting the complete employment file, WSIB file, union file, and collateral benefits file from Sunlife. He also sent one letter on June 8, 2023, to The Queensway Employment & Social Services for his social assistance file.
9I do not agree with the applicant that sending one request letter necessarily satisfies its obligation to make best efforts to obtain the productions. The order is silent with respect to how many requests are required to be made; it simply states that the applicant shall provide the respondent with the documents. In Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415, the Divisional Court found that “a best effort is what a reasonable person would conclude was a best effort to obtain the answers to undertakings based on the specific facts of any given case and the nature of the undertakings”. The Court cited Gheslaghi v. Kassis, 2003 CanLII 7532 (ON SC), which stated that a cursory inquiry is not good enough; the word “best” is the superlative of the word “good”, and must be interpreted in that light. The principle in Linamar was reiterated in the context of a Tribunal order in Singh v. Wawanesa Mutual Insurance Company, 2022 ONSC 3361.
10In this case, the applicant only sent one request for the documents. There is no evidence before me that he followed up with a phone call, email, or second letter. Making one request for documents constitutes the bare minimum, not best efforts. Further, I am skeptical as to whether the applicant’s employer would have in its possession a complete copy of the WSIB file, collateral benefits file, or union file. There is no evidence before me that the applicant made requests to WSIB, Sunlife, or the union directly.
11The applicant was involved in a workplace accident just prior to his accident in 2021. He submits that the respondent has in its possession the records of his family physician, Dr. Ogueri, which contain detailed medical information regarding his workplace accident. The applicant also relies on WSIB forms completed by Dr. Ogueri, and forms from the applicant’s workplace regarding his injury. However, these documents do not necessarily demonstrate a complete picture of the applicant’s condition immediately prior to the accident. Further, although Dr. Ogueri completed forms for WSIB and the applicant’s workplace prior to the accident, there are no forms from after the accident. I find it likely that there is documentation within these files that would shed light on the applicant’s injuries or ability to work. The applicant was obligated to provide complete copies of these files, and he has failed to do so.
12I find that where these documents are relevant, it is appropriate for me to make an adverse influence from the applicant’s failure to produce the employment file, WSIB file, collateral benefits file, union file, and social assistance file.
Exclusion of social media photographs
13The respondent provided in its submissions a social media investigation report, which included photographs of the applicant from various social media pages. The applicant submitted in reply that the photographs have no evidentiary value and are highly prejudicial. He argues that the Tribunal should not allow the respondent to abuse its process by introducing as evidence old pictures taken before the accident or soon after the accident.
14I do not find that the respondent has abused the Tribunal’s process by submitting these photographs. The applicant has not explained how the Tribunal’s process has been abused, or how he will be prejudiced if the photographs are included. I decline to exclude them from the hearing. Ultimately, upon review of the photographs, I agree that they do not provide much evidentiary value, and they did not have any bearing on my decision.
ISSUES
15The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $392.90 per week from June 10, 2022, to date?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent entitled to costs in the amount of $500.00?
RESULT
16The applicant is not entitled to an income replacement benefit. As no benefit is overdue, he is not entitled to interest.
17The respondent is not entitled to costs.
ANALYSIS
Income Replacement Benefit
18To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. The applicant bears the burden of proving, on a balance of probabilities, that they meet the tests.
19The applicant received income replacement benefits in the amount of $392.80 per week until June 9, 2022, when the benefit was denied based on s. 44 assessments.
20The applicant submits that he has a substantial inability to perform the tasks of his pre-accident employment due to his physical and psychological impairments. He relies on the records of his treatment providers, the reports of Dr. Gupta and Dr. Langis, and the OCF-3 of Dr. Marciniak. He does not make any submissions with respect to the post-104-week test, although he seeks the benefit on an ongoing basis past the 104-week mark.
21The respondent disagrees, and argues that the applicant has over-reported his injuries, made inconsistent and contradictory reports to various assessors, and the assessors have relied predominantly on his unsupported self-reports. It submits that limited weight should be placed on the applicant’s reports.
22For the following reasons, I do not find that the applicant has established that he has a substantial inability to perform the essential tasks of his pre-accident employment due to an accident-related impairment.
Pre-Accident Employment and Condition
23At the time of the accident, the applicant was employed through Dexterra Group as a porter at Toronto Pearson Airport. I have not been provided with a job description or details regarding what the applicant’s tasks would have been at this job.
24In October 2021, the applicant injured his left hip at work, and was diagnosed with trochanteric bursitis. His family physician, Dr. Ogueri, recommended that he should only engage in sedentary tasks. The applicant’s employer offered modified work in the form of filing, answering calls, and allowing him to take micro breaks. The applicant returned to work on a modified basis. A note to WSIB from Dr. Ogueri from November 24, 2021, states that his condition remained unchanged, he was being referred to a physiotherapist, and more than 14 days of modified duties were requested. He had limitations with walking, standing for more than 10 minutes, lifting, and stair and ladder climbing. There are no further records from Dexterra Group or WSIB to shed light on whether the applicant was still performing only sedentary tasks at the time the accident occurred.
25Although the applicant admits that he was performing modified duties, he also submits that this involved “long standing, walking, bending, some overhead reaching”, and that he was able to complete those tasks without issue. Due to the applicant’s failure to produce documents from his employer or WSIB, I have no way to confirm this assertion.
26The applicant has not provided any evidence to show what his job entailed, aside from the form indicating his modified duties. I am accordingly left with very little insight into the essential tasks of the applicant’s employment.
Impairment
27I find that there are inconsistencies in the evidence, which leads me to give little weight to the applicant’s self-reports to the assessors. The applicant submits that he still takes Naproxen, Baclofen, Tylenol #3, and Amitriptyline as a result of the 2021 accident. He also reported taking these medications to various assessors. However, he did not fill any prescriptions for pain or sleep medication past July 18, 2022. The only medications he received after that date were for his diabetes, and antibiotics and Ibuprofen on one occasion, for what I assume was an infection (I do not have the records of the prescribing physician for those medications).
28The applicant submits that he received nerve blocks and trigger point injections, however there is no evidence that he ever did; in fact, despite being described as a good candidate by Dr. Adrian Le, pain physician, he declined them. Injections were also recommended by Dr. Wilfred Chan, another pain physician, but the applicant did not want them.
29The applicant also submits that although he was involved in a second accident on June 13, 2022, he did not make any claim for accident benefits, and had no knowledge that his treating physiotherapist completed and sent a treatment plan for that accident. However, an OCF-3 for that accident was also completed by Dr. Marciniak, physician, on July 12, 2022, and it was signed by the applicant. It states that “the patient has gross dysfunction following the accident”, and “the patient has had multiple accidents and aggravation of his previous injuries.”
30The treatment plan the applicant takes issue with was submitted by Dr. Marciniak, not a physiotherapist. The treatment plan stated that the applicant’s injuries worsened as a result of the 2022 accident. It also stated that he sustained a concussion in the 2022 accident, and he was having difficulties focusing and concentrating. I do not accept the applicant’s suggestion that the evidence in this treatment plan should be disregarded, especially as the applicant relies on other documents authored by Dr. Marciniak.
31There is further evidence that suggests that the applicant’s condition deteriorated after the accident in 2022. From December 2021 until May 2022, the applicant regularly visited Dr. Ogueri and complained of back pain. He was prescribed Naproxen and Baclofen on a number of occasions. Dr. Ogueri’s notes do not mention the second accident. However, on July 18, 2022, Dr. Ogueri prescribed Tylenol with codeine for the first time. Taking into account what Dr. Marciniak wrote in the OCF-3, this indicates to me that the applicant’s condition worsened after the 2022 accident.
32Further, in March 2023, the applicant reported to Dr. Le that his pain had worsened, without explanation. Dr. Le’s report does not mention the 2022 accident. He also reported worsening pain to Dr. Gupta in May 2023. The applicant told Dr. Gupta that he did not sustain any injuries in the 2022 accident.
33For the reasons above, I find it more likely than not that the applicant sustained injuries in the 2022 accident. I give little weight to the opinions of the assessors that the applicant relies on, as they largely based their opinions on his self-reports. As noted above, I find there are significant inconsistencies and issues with the applicant’s self-reporting.
34The applicant relies on the report of Dr. Langis, psychologist, and Ivan Staroversky, registered psychotherapist, from an assessment on May 29, 2023. Their opinion was that he suffered a complete inability to work. For the following reasons, I place less weight on their report:
i. Their report appears to have been based entirely on the applicant’s self-report. They did not provide a list of medical documents that they reviewed. They stated that the applicant did not have a pre-existing history of problematic pain, despite the fact that he was on modified duties at the time of the accident due to hip pain. The applicant described his pre-accident employment activities as involving prolonged standing, walking, and pushing carts with luggage. There was no discussion whatsoever about modified duties. They repeated the applicant’s history based on his self-report alone, including results of x-rays and an MRI, without actually referring to the medical documents. Further, the assessors did not mention the June 2022 accident.
ii. Despite the fact that the applicant did not describe any driving anxiety, the applicant’s scores for driving anxiety were “extreme”. The assessors diagnosed him with “Posttraumatic Stress Disorder, which encompasses his vehicular anxiety and avoidance”, and recommended he receive a driving reintegration assessment. However, the applicant did not report any avoidant behaviour to the assessors. Further, although he reportedly had some driving anxiety after the accident, by the time of this assessment he reported that he was not experiencing any driving or passenger anxiety. The applicant also advised s. 44 psychologist Dr. Gooden that he resumed driving and riding as a passenger after the accident, and did not endorse avoidant behaviour characteristic of PTSD, or nervousness in a vehicle. It appears the assessors were not aware of that because they did not review any medical records. In any event, the applicant’s self-report does not match his “extreme” scores for driving anxiety.
iii. The applicant underwent the Rey 15-item memory test, which was described as a validity measure designed to assess the possible amplification of memory deficits. The assessors stated that the applicant was “not well engaged”, which “may reflect difficulty with attention and concentration”. In addition, the applicant did not pass validity testing on the Pain Patient Profile. The assessors attributed this to the applicant having difficulty reading and/or appropriately attending to the content of the items in the test. The applicant was able to complete 8 other tests apparently without issue. The assessors do not provide further detail about why they ascribed the applicant’s failure on these tests to reading or attention issues, as opposed to an attempt to magnify symptoms.
35Although it appears that the applicant did have psychological difficulties as a result of the 2021 accident, I do not find that there is compelling evidence that the applicant was unable to return to work as a result of his psychological condition. Bruce Cook, psychological associate, indicated on June 9, 2022, that his prognosis was quite good with treatment. Although there is evidence that the applicant received psychotherapy, there are no records from the applicant’s psychotherapist before me. I have no way of knowing whether the treatment was helpful and to what degree, or why it was not.
36I prefer the s. 44 assessment of Dr. Charlotte Gooden, psychologist, which took place on May 30, 2022. Dr. Gooden diagnosed the applicant with Major Depressive Disorder, Mild, but opined that the diagnosis was not of a magnitude or severity to result in a substantial inability to perform the essential tasks of his pre-accident employment. Dr. Gooden reviewed medical evidence and did not solely rely on the applicant’s self-report. Unlike Dr. Langis’ report, I do not find that her diagnoses or opinions were inconsistent with the medical records or the applicant’s reported symptoms.
37The applicant submits that Dr. Gooden “failed to take into consideration the impact of chronic pain on [his] limitations and impairments”. He refers to Islamovic v. Cooperators General Insurance Company, 2023 CanLII 67922, stating that the Tribunal determined that where a diagnosed mental disorder includes pain associated with a general medical condition, it is reasonable to include such pain when determining an individual’s impairment. That case involved a determination of catastrophic impairment, and the Tribunal specified that pain should be included when determining an individual’s impairment level under Criterion 8. Either way, the applicant has not explained why he believes that Dr. Gooden failed to take his pain into consideration. I do not accept this argument.
38The applicant also relies on the report of Dr. Jagdeep Gupta, pain physician, from an assessment on May 2, 2023. Dr. Gupta opined that the applicant is not able to substantially perform his pre-accident employment tasks, or work in any occupation that he is capable of. He indicated that the applicant’s job is physically stressful. He did not mention the fact that the applicant’s job prior to the accident was sedentary. He did not discuss the applicant’s sitting tolerance, aside from reiterating the applicant’s self-reported limitation of “prolonged sitting”.
39Dr. Gupta appears to have at least reviewed medical records before forming his opinions. However, he stated that the applicant was taking Naproxen, Tylenol #3, Baclofen, and Amitriptyline. As indicated above, this does not appear to be accurate according to the prescription records. The applicant reported to Dr. Gupta that his pain is alleviated by Tylenol #3 and Naproxen, which he was not taking. Dr. Gupta also indicated that the applicant had taken Lyrica and Cymbalta in the past, but there is no evidence of this. Dr. Gupta also stated that the applicant received trigger point injections and nerve blocks, which there is no evidence for. He appears to have relied primarily on the applicant’s self-reporting rather than the medical evidence before him.
40The applicant completed psychological questionnaires for Dr. Gupta. He checked every single box for the most extreme symptoms possible on the anxiety, depression, and PTSD questionnaires. Validity testing was not mentioned. While I accept that the applicant was likely experiencing psychological difficulties as a result of the accident, given the issues I have with his credibility, and without validity testing, I cannot take the results of these tests at face value.
41Dr. Gupta provided a diagnosis for Chronic Pain Syndrome, however he did not reference the AMA Guides criteria for chronic pain, and did not indicate which criteria the applicant meets. Although I am not prepared to discount Dr. Gupta’s opinion entirely, I find that there are issues with his report such that his opinion alone is not enough to balance the scales in the applicant’s favour.
42On April 28, 2022, the applicant underwent a s. 44 assessment with Dr. Nikolaos Harmantas, an occupational health physician. He opined that the applicant appears to have primarily sustained soft tissue injuries in the accident, which did not constitute a substantial inability to perform the essential tasks of his pre-accident employment.
43The applicant takes issue with Dr. Harmantas’ report, submitting that he failed to take into account the evidence from an MRI on March 27, 2022. The MRI showed a lower marrow signal at the T1 level, which was considered an incidental finding that required further testing, and mild degenerative disc disease at the L4-L5 and L5-S1 levels with minor and mild bilateral neural rings and no significant spinal stenosis. Dr. Harmantas mentioned this in his report. In his submissions, the applicant refers to Dr. Harmantas’ summary of a treatment plan from April 4, 2022, which in its “additional comments” section attempts to correlate the MRI with the applicant’s symptoms. I have not been provided with a copy of that treatment plan, and I am unaware of who authored it. Without that information, I cannot determine whether Dr. Harmantas should have done something differently with it.
44The applicant also submits that Dr. Harmantas failed to take into account his “preexisting lower back and hip injuries for which the Applicant was placed under modified duties at the time of the subject accident.” There is no evidence that the applicant had a pre-existing lower back injury. In any event, it is more likely that the applicant did not report any pre-existing injuries to Dr. Harmantas, which was the case with almost every other assessor.
45The applicant argues that Dr. Harmantas is “not qualified as an expert to provide reliable and dependable expert evidence”. I do not know what the applicant means. I have not been provided with any evidence that would put Dr. Harmantas’ qualifications into question.
46I do take issue with the fact that Dr. Harmantas failed to explain why the applicant is still experiencing pain, despite his soft tissue injuries having healed. However, whether someone experiences pain or suffers from a chronic pain condition is not determinative of this issue. Even if I give Dr. Harmantas’ report less weight, the applicant still has the onus to show that he is not able to participate in his pre-accident employment tasks.
47Dr. Harmantas conducted another assessment on April 12, 2023, for the purposes of determining whether a treatment plan was reasonable and necessary. During his physical examination, he noted that there were inconsistencies. The applicant demonstrated better range of motion during informal observation than with formal testing, and complained of pain with SLR testing while supine but not while seated. He also demonstrated an exaggerated pain response when the rubber reflex hammer tapped his knees. For an unknown reason, he refused to attempt any flexion or extension of his back, and refused any formal testing to his knees, hips, and feet. I find that this adds to the applicant’s credibility issues.
48The applicant relies on the OCF-3 of Dr. Marciniak from September 6, 2023, which states that he suffers from a complete inability to carry on a normal life, and that modified employment duties are not available. There is a lack of information contained within this document regarding the specific tasks the applicant is unable to complete, or why. I find that it does not add much weight to this analysis.
49The records of the applicant’s family physician do not assist him much. They do not go into detail with respect to the applicant’s level of pain, or any functional difficulties he may have as a result. Dr. Ogueri did not provide any documentation to the applicant’s workplace regarding his restrictions, despite doing so for his pre-accident workplace injury. Further, the applicant has not provided me with records from his other treatment providers, despite advising Dr. Le that he attended over 100 chiropractic appointments. He did not provide me with any records from his psychotherapy appointments, which were apparently helpful.
50For all of the reasons above, the applicant has failed to persuade me on a balance of probabilities that, as of June 10, 2022, he had a substantial inability to complete the essential tasks of his pre-accident employment. I also find that the applicant has not met the post-104-week test. Therefore, I find that he is not entitled to an IRB from June 10, 2022 onward.
Interest
51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, interest is not payable.
Costs
52Pursuant to Rule 19 of the LAT Common Rules of Practice and Procedure, costs may be awarded where a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. The respondent seeks costs in the amount of $500.00, but did not provide any specifics in support of this request. The applicant did not address the request for costs in his reply submissions.
53I decline to award costs to the respondent, as it has not demonstrated how the applicant’s behaviour meets the test in Rule 19.
ORDER
54The applicant is not entitled to an income replacement benefit. As no benefit is overdue, he is not entitled to interest.
55The respondent is not entitled to costs.
Released: September 11, 2024
Rachel Levitsky
Adjudicator