Domenico De Leo v. Jevco Insurance Company, 2025 CanLII 129057

Citation: De Leo v Jevco Insurance Company, 2025 ONLAT 24-009992/AABS

Licence Appeal Tribunal File Number: 24-009992/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:

Domenico De Leo Applicant

And

Jevco Insurance Company Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Michael Giordano, Counsel

For the Respondent: Dale Stuckless, Counsel Yasar Saffie, Counsel

Reporter: Marcia Gardner

HEARD by Videoconference: June 30 and July 2, 3 and 4, 2025

OVERVIEW

1Domenico De Leo, the applicant, was involved in an automobile accident on December 9, 2019, 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, Jevco Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to an income replacement benefit in the amount of $1,000.00 per week from August 8, 2022, to Nov 1, 2024? (Note: the applicant has optional benefits) ii. Is the applicant entitled to $2,256.20 for chiropractic treatment, proposed by Eikonic Health and Wellness in a treatment plan/OCF-18 ("plan") dated March 21, 2024? iii. Is the applicant entitled to $2,486.00 for occupational therapy treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated May 15, 2024? iv. Is the applicant entitled to $4,070.04 for occupational therapy treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated May 21, 2024? v. Is the applicant entitled to $2,986.57 for psychological treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated June 28, 2024? vi. Is the applicant entitled to $2,339.25 for psychological treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated March 22, 2024? vii. Is the applicant entitled to $3,320.00 for chiropractic treatment proposed by Eikonic Health and Wellness in a plan dated July 12, 2024? viii. Is the applicant entitled to $2,939.61 for a physiatry assessment proposed by Myohealth Rehab and Wellness Centre in a plan submitted November 5, 2024? ix. Is the applicant entitled to $2,486.00 for a vocational assessment proposed Capital Vocational Specialists in a plan submitted January 17, 2025? x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant? xi. Is the applicant entitled to interest on any overdue payment of benefits?

3Issues viii and ix (above) were added on consent at the commencement of the hearing.

RESULTS

[4] Based on the evidence and a balance of probabilities, I find that: i. The applicant is entitled to an income replacement benefit of $1,000.00 per week from August 8, 2022 to November 1, 2024. ii. The applicant is not entitled to $2,256.20 for chiropractic treatment, proposed by Eikonic Health and Wellness iii. The applicant is not entitled to $2,486.00 for occupational therapy treatment proposed by Myohealth Rehab and Wellness Centre. iv. The applicant is not entitled to $4,070.04 for occupational therapy treatment proposed by Myohealth Rehab and Wellness Centre. v. The applicant is not entitled to $2,986.57 for psychological treatment proposed by Myohealth Rehab and Wellness Centre. vi. The applicant is not entitled to $2,339.25 for psychological treatment proposed by Myohealth Rehab and Wellness Centre. vii. The applicant is not entitled to $3,320.00 for chiropractic treatment proposed by Eikonic Health and Wellness. viii. The applicant is not entitled to $2,939.61 for a physiatry assessment proposed by Myohealth Rehab and Wellness Centre ix. The applicant is entitled to $2,486.00 for a vocational assessment proposed Capital Vocational Specialists. x. The applicant is not entitled to an award. xi. The applicant is entitled to interest on the amount of any outstanding benefits.

PROCEDURAL ISSUES

5The respondent submitted that Ms. Carol McGookin, accident benefits adjuster for the respondent and a witness named in the Case Conference Report and Order of January 9, 2025 was not personally served with a summons. The summons was served on the respondent's counsel. The respondent requested that this witness not be compelled to testify because the summons was not served personally. The respondent relies on s. 12 of the Statutory Powers Procedure Act, which says summonses will be served personally.

6The applicant submitted that the witness's correct address was not available.

7I agree with the respondent. Section 12(3) of the SPPA requires that witnesses be served personally with a summons and this witness was not. Therefore, as Ms. McGookin was not summonsed in accordance with the SPPA, she is not compelled to testify.

ANALYSIS

Income Replacement Benefit (post-104 weeks)

8The applicant is entitled to IRB benefits from August 22, 2024 to November 1, 2024.

9To 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. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

10The test for entitlement to IRBs changes after the first 104 weeks of disability. To receive payment for a post-104 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.

11The applicant received income replacement benefits from one week post-accident to August 8, 2022 and sought a continuation of this benefit. On August 12, 2024, the applicant applied to the respondent for continuing post 104 week IRBs. The applicant met the pre-104 test to receive IRB but the respondent claimed that the applicant was not completely unable to do his job post-104 weeks and therefore this benefit was discontinued.

12The applicant submits that he suffered from a complete inability to engage in any employment or self-employment, both before and after 104 weeks. The applicant met the pre-104 test for IRB because he was substantially unable to perform his job as a restaurant manager and server. He was assessed for his pre-104 income replacement benefits in December 2020.

13The respondent submits that the applicant does not meet the post-104 test, has a significant pre-accident right shoulder injury history, questions whether the accident actually caused the applicant's shoulder injury, and moreover submits that the applicant lacks credibility in his testimony and examinations on this and the other issues in dispute.

Pre-accident essential duties

[14] The applicant was employed as a server and manager at his family's restaurant full time and also at a relative's restaurant on a part-time basis. His work experience prior to the accident consisted of: i. Taking orders and relaying to kitchen and bar staff ii. Serving food and beverages iii. Checking supplies and moving boxes iv. Presenting bill and taking payment v. Welcoming and seating customers vi. Managing restaurant and staff

15Based on testimony and the reports of Mr. Paul Holtby, vocational assessor and Dr. David Hytman, DC, a functional abilities assessor, the applicant's education, experience and training suggest that he is best suited for employment requiring a light to medium strength level in a customer service capacity and required lifting, carrying and walking for extended periods. Maintaining emotional regulation and concentration, supervising and providing staff direction, standing, and carrying food and drinks to tables over an extended period of time were the "essential tasks" of his pre-accident employment. This information is important because it summarizes applicant's work experience which will inform his potential employment prospects for the post-104 week period in question.

Accident-related impairments

16The applicant submitted that he was substantially unable to do his job immediately after his accident on December 9, 2019, and was substantially unable to do any job 104 weeks post-accident (August 8, 2022 to November 1, 2024). The applicant was involved in prior accidents and incidents that involved his right shoulder. The applicant showed both physical and psychological evidence and testimony that he had an inability to engage in any employment that he would be otherwise suited for.

17The respondent submitted that the applicant does not meet the post-104 test for income replacement benefits, and that the applicant lacks credibility. Also, the applicant's shoulder condition resulting from previous incidents mean the subject accident was not a factor in the applicant's shoulder condition which precluded him from working. Furthermore, the respondent submitted that the applicant did not suffer a complete inability to engage in any employment or self-employment that he would be otherwise suited for considering his education, training or experience. Accordingly, he would be capable of performing alternative occupations that were light in physical demands.

18I find that it is unlikely the applicant could have performed any alternative occupation commensurate with his education, experience or training. The applicant lacked any formal education after high school. His experience was solely in the restaurant industry as a server or front of the house staff. His physical restrictions post-accident restricted his ability to stand, lift and carry things, and this would rule out likely alternative occupations like food delivery. Also, both the insurer's psychological examiner (Dr. Alfonso Marino) and the applicant's psychological examiner found that the applicant suffered from increased irritability, low mood, anger, frustration and sadness that would have impeded his ability to work 104 weeks post-accident.

19I find the applicant has established that as a result of the accident, on a balance of probabilities, he suffered from a complete inability to engage in any employment or self-employment for which he was reasonably suited by education, training, or experience. The applicant's right shoulder problems resulted in his inability to lift and serve food to customers, and the applicant's associated mental health issues made it more difficult to perform his any employment for which he was reasonably suited by education, training and experience.

20Clinical notes and records from the applicant's family doctor, Dr. Ashleigh Higgs, note pain in his right shoulder. This was the result of various incidents pre-accident including, most notably, a slip and fall on vacation in Mexico, resulting in a dislocation.

21Dr. Mehdi Sadoughi, the applicant's treating orthopedic surgeon and expert witness testified that the applicant had a history of pain, instability and a prior dislocation in his left shoulder. He diagnosed a SLAP tear (Superior Labrum, Anterior to Posterior) as a result of the accident and said that the pain that persisted up to February 2024 meant that surgery was the most effective way to alleviate the pain and instability. My view is that Dr. Sadoughi's evidence and testimony are reliable and his reports are thorough. He's a believable and credible witness, especially as a treating surgeon who has seen and examined the applicant multiple times.

22Dr. Sadoughi's records noted pain and instability in the applicant's right shoulder in his first visit on November 22, 2022 and by February 13, 2024 with no changes, the applicant elected to have surgery to repair the shoulder to help alleviate the pain. Dr. Sadoughi's testified that he diagnosed a SLAP tear type 4 (severe), and MRI results confirmed this.

23The surgery repaired the sources of dislocation and the front of the applicant's shoulder. By a May 22, 2024 follow-up visit, the patient was attending physiotherapy, and the applicant's range of motion was up to 40 per cent by August 15, 2024. By October 24, 2024, Dr. Sadoughi suggested light and modified work was possible. However, based on Dr. Sadoughi's testimony and CNRs, it would have been difficult for the applicant to work in the period preceding the surgery in addition to post-surgery during rehabilitation. Dr. Sadoughi noted that essentially the applicant was incapacitated for the first six months after surgery.

24The applicant also relied on Dr. Joseph Wong, a physiatrist and rehabilitation medicine expert, who conducted an examination of the applicant on March 24, 2025 and issued a report on April 1, 2025. He opined that the subject accident worsened any pre-existing right shoulder pain, saying that an MRI previous to the subject accident noted no problems. He noted that the applicant would not have been able to return to work before surgery and could return to modified work after surgery.

25The respondent's cross-examinations of Dr. Wong and Dr. Sadoughi attempted to show inconsistencies between the dates of diagnoses and examinations and the applicant's injuries. The respondent also attempted to show that these experts did not have sufficient knowledge of the applicant's prior injuries to his shoulder that could have affected his post-104 condition. I did not see any evidence that showed that (1) the subject accident was not, on a balance of probabilities, the precipitating factor that caused the applicant's shoulder injury and subsequent surgery, and (2) that the applicant was not incapacitated and unable to work post-surgery.

26Dr. Mohammed Nikkhou, a neuropsychologist, was a credible and knowledgeable witness. His report and testimony based on his evaluation of the applicant more than once was helpful and I give weight to his testimony. Dr. Nikkhou said that the applicant had signs of depression that were in large part are due to his physical issues and not being able to work. Dr. Nikkhou also reported and testified that there was some exaggeration in the applicant's symptoms but overall, the applicant had emotional and social issues that can be traced back to the subject accident and its effect. Dr. Nikkhou diagnosed the applicant with an adjustment disorder with mild anxiety and depression of more than six months, albeit without a somatic symptom disorder, without any phobia or panic.

27The respondent argued that the applicant was inconsistent in his testimony and history he provided to examiners and treating providers. I cannot put significant weight on this inconsistency. Medical records, especially notations around whether the applicant was working or not working as noted in CNRs are not always accurate when discussing non-medical matters. Medical records are intended for treatment purposes and not to be record of employment, and I place little value on notations in CNRs about whether an applicant may or may not have been working. The majority of inconsistencies are within the CNRs of Eikonic Health, and these fall outside of the period of dispute and are not materially relevant.

28The respondent's expert witness and insurance examiner, Dr. James Delaney, an orthopedic surgeon, examined the applicant on July 9, 2024. He noted in his report and testimony that the applicant had a number of different issues and prior incidents with his right shoulder prior to the December 2019 index accident. Dr. Delaney did not believe the majority of damage to the applicant's shoulder, including a dislocation, was caused by the subject accident. He opined that the issues and complaints from the subject accident had resolved and what he saw at the examination was the applicant's baseline status. Accordingly, he said, the applicant's surgery was not required for the injuries he sustained in the accident.

29I reject the respondent's theories around causation. There is clear evidence from the doctors treating the applicant and CNRs from health providers like the applicant's family physician, Dr. Kristen Reeves (January 23, 2020) that the applicant had ongoing shoulder issues that included pain and difficulty with range of motion. And all of the expert's records and examinations show that the applicant had prior shoulder injuries and ongoing right shoulder pain that became much worse after the subject accident.

Impact of the accident-related impairments

30The next question I must consider is whether these accident-related impairments resulted in the applicant's complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

31The vocational assessment report and the vocational assessor, Mr. Remedios, testified that the applicant was not academically inclined and noted that the physical issues with his shoulder would compromise his ability to return to work after his surgery and post-104 weeks after the accident. His lack of any formal academic post-secondary credentials meant that he would be limited in any alternative type of employment. The assessor also noted that it would be unlikely that the applicant could work in another restaurant as the applicant's family restaurant could accommodate his demands, and that the applicant would be a liability to a potential employer.

32The applicant was unable to perform his job and thus met the pre-104 week IRB test. In addition, the evidence and the testimony showed that the applicant was substantially unable to perform any job in the post-104 week period in question.

33Following my finding the applicant sustained a shoulder impairment, I am also satisfied that this impairment caused a substantial inability to perform the essential tasks for which the applicant was qualified based on his experience: serving customers, carrying and lifting food and beverages, moving restaurant supplies, etc. He would also be unable to perform an alternative occupation like food delivery for the same reasons.

34Accordingly, I believe that, on a balance of probabilities, the applicant has shown that, based on physical and psychological evidence and testimony, he had an inability to engage in any employment during that post-104 week time period that he would be reasonably suited for by education, training or experience.

35Section 7 of the Schedule provides that the weekly amount of IRB payable to an insured person who becomes entitled to the benefit before his or her 65th birthday is subject to a cap of $400.00, unless an optional income replacement benefit has been purchased and applies to the insured. If the insured has purchased an optional benefit, section 7 provides that the maximum is the amount fixed in the optional benefit. In this case, the applicant had purchased optional benefits, and the parties did not dispute that the amount of the optional benefit for IRB is $1,000.00 a week .Therefore, I find the applicant is entitled to the $1000.00 a week for the period of August 8, 2022 to November 1, 2024 as claimed in his application.

36To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Issue 2:

37Is the applicant entitled to $2,256.20 for chiropractic treatment, proposed by Eikonic Health and Wellness in a treatment plan/OCF-18 ("plan") dated March 21, 2024.

38The applicant did not point me to any medical evidence in support of this treatment plan and its reasonableness or necessity. The applicant has not satisfied their onus and I therefore find that this treatment plan is neither reasonable nor necessary.

Issue 3:

39The applicant is not entitled to $2,486.00 for occupational therapy treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated May 15, 2024.

40The applicant did not point me to any medical evidence in support of this treatment plan and its reasonableness or necessity. The applicant has not satisfied their onus and I therefore find that this treatment plan is neither reasonable nor necessary.

Issue 4:

41The applicant is not entitled to $4,070.04 for an occupational therapy proposed by Myohealth Rehab and Wellness Centre in a plan dated May 21, 2024.

42The applicant did not point me to any medical evidence in support of this treatment plan and its reasonableness or necessity. The applicant has not satisfied their onus and I therefore find that this treatment plan is neither reasonable nor necessary.

Issue 5:

43The applicant is not entitled to $2,986.57 for psychological treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated June 28, 2024.

44The applicant did not point me to any medical evidence in support of this treatment plan and its reasonableness or necessity. The applicant has not satisfied their onus and I therefore find that this treatment plan is neither reasonable nor necessary.

Issue 6:

45The applicant is not entitled to $2,339.25 for psychological treatment proposed by Myohealth Rehab and Wellness Centre in a plan dated March 22, 2024.

46Dr. Mohammed Nikkhou, a testifying psychologist, pointed out in his testimony that this assessment was neither reasonable nor necessary because the applicant had already had several other assessments and further assessments were therefore not required. He concluded that it was more appropriate for the applicant to get treatment rather than another assessment. I agree with this view as the applicant has not presented any other evidence or submissions to show that this assessment is neither reasonable nor necessary.

Issue 7:

47The applicant is not entitled to $3,320.00 for chiropractic treatment proposed by Eikonic Health and Wellness in a plan dated July 12, 2024.

48The applicant did not point me to any medical evidence in support of this treatment plan and its reasonableness or necessity. The applicant has not satisfied their onus and I therefore find that this treatment plan is neither reasonable nor necessary.

Issue 8:

49The applicant is not entitled to $2,939.61 for a physiatry assessment proposed by Myohealth Rehab and Wellness Centre in a plan submitted November 5, 2024.

50The applicant did not point me to any medical evidence in support of this treatment plan and its reasonableness or necessity. The applicant has not satisfied their onus and I therefore find that this treatment plan is neither reasonable nor necessary.

Issue 9:

51The applicant is entitled to $2,486.00 for a vocational assessment proposed Capital Vocational Specialists in a plan submitted January 17, 2025.

52One of the issues in dispute in this hearing has been the determination of entitlement to post-104 week IRBs for the applicant. As set out above, I have found that the applicant is entitled to post-104 week IRBs. I further find that the vocational assessment is relevant, reasonable and necessary for the determination of the applicant's IRB entitlement. Therefore, I find on a balance of probabilities that the applicant is entitled to this assessment.

Issue 10: Interest

53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. In this case interest applies on the IRB and the vocational assessment (Issue 9).

Issue 11: Award

54The applicant is not entitled to an award.

55The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

56I do not accept the applicant's argument that the "late causation theory" posited by the respondent as a reason for post-104 benefits denial amounts to grounds for an award because there is no evidence to show that this was inflexible, unyielding or immoderate.

57The applicant did not direct me to any other evidence or submission that would justify an award and show behaviour that was, as cited in the landmark Financial Services Commission of Ontario case Plowright v. Wellington Insurance Company case (FSCO A-003985, October 29, 1993) to be "excessive, imprudent, stubborn, inflexible, unyielding or immoderate."

ORDER

[58] I order that: i. The applicant is entitled to an IRB in the amount of $1,000.00 per week from August 8, 2022, to Nov 1, 2024. ii. The applicant is entitled to the treatment plan/assessment for issue 9 (vocational assessment). iii. The applicant is not entitled to treatment plans for issues 2, 3, 4, 5, 6, 7 and 8. iv. The applicant is entitled to interest on any overdue payment of benefits. v. The applicant is not entitled to an award.