Licence Appeal Tribunal File Number: 23-004832/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:
Aaron Carnovale
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Ryan St. Aubin, Counsel
For the Respondent:
Peter Durant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Aaron Carnovale (the “applicant”) was involved in an automobile accident on December 15, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Security National Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL CONTEXT
2The applicant’s submissions indicate he withdraws all the issues listed in the case conference report and order (“CCRO”) for this matter, with the exception of issue no. 4 pertaining to the income replacement benefit (“IRB”) and the award listed as issue no. 7. As such, I have proceeded to consider only the applicant’s IRB and award claims.
3Pertaining specifically to the IRB dispute, the applicant’s submissions indicate the claim period starts September 26, 2021. This is inconsistent with the CCRO, which indicates March 16, 2021, as the start date of the applicant’s IRB claim. The respondent’s submissions are consistent with CCRO in this regard. Given that the parties agreed to the IRB issue particulars at the case conference, and that I was not pointed to a motion made by either party to change the claim period of the IRB up to the hearing, I am proceeding with the IRB issue as stipulated in the CCRO.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to an IRB in the amount of $400.00 per week from March 16, 2021, to date and ongoing?
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?
RESULT
5The applicant is not entitled to an IRB and the respondent is not liable to pay an award.
ANALYSIS
The applicant’s entitlement to an IRB
Within 104 weeks after the accident (up to December 15, 2022)
6I find the applicant is not entitled to an IRB within 104 weeks after the accident.
7To receive payment for an IRB under section 5(1)1 of the Schedule, the applicant must have: (1) been employed for at least 26 weeks during the 52 weeks before the accident, or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident; and (2) as a result of and within 104 weeks after the accident, suffered a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident. The applicant must identify the essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
8The applicant submits he was receiving employment insurance benefits at the time of the accident, and says his medical records show he continues to experience impairments related to the accident that include dizziness, anxiety and psychological distress, neck pain, vertigo, tinnitus, and cognitive limitations. The applicant asserts these impairments rendered him substantially unable to perform the tasks required by his pre-accident employment. He maintains his condition has not improved despite undergoing medical treatment and rehabilitation.
9The respondent’s submissions raise multiple arguments as to why the applicant is not entitled to an IRB, including that: (1) he failed to provide information requested per section 33 of the Schedule; (2) he did not submit a new OCF-3 per section 37 of the Schedule; (3) he failed to submit evidence of both his essential employment tasks and which tasks he is unable to perform; (4) he failed to produce multiple documents ordered by the Tribunal, including: police records, tax returns and assessment notices past 2019, employment files, particulars of collateral benefits, and the clinical notes and records of Dr. France Palao (family physician), Dr. Mandeep Kaur Singh (psychologist), and Dr. Usman Moghal (neurologist); and (5) he is exposed to the exclusion at section 31 of the Schedule because he was intoxicated at the time of the accident and failed to provide proof that he was not convicted for driving while intoxicated in connection with the accident. The respondent relies on the section 44 Insurer’s Examinations (“IE”) by Drs. Marco Chiodo (psychologist), Robert Yufe (neurologist), and James Delaney (orthopaedic surgeon) as well as Ms. Sandra Cauchard (vocational rehabilitation specialist).
10I accept the applicant was receiving benefits under Canada’s Employment Insurance Act at the time of the accident. While the applicant did not pinpoint the location of this evidence by tab and page number in his brief as required by the CCRO, I was able to locate an entry in his employment insurance file at page 76 that shows he received regular benefits the week of December 13-19, 2020. The applicant’s submissions indicate he was receiving EI at the time of the accident because he was laid off owing to a shortage of work.
11However, the applicant’s evidence falls short of meeting the second part of the test that relates to his essential employment tasks.
12Throughout the applicant’s submissions, I am directed to little evidence that establishes the essential tasks of his employment as a labourer in the 52 weeks before the accident, and to what degree the applicant was unable to perform them. While the OCF-2 in evidence offers that he was employed full-time as a labourer from August 1, 2019, to March 20, 2020, it provides no job description details and fails to identify any essential job tasks. Instead, the applicant’s submissions seem to rely on his receipt of employment benefits at the time of the accident to show he fulfills the IRB requirements set out in the Schedule [for example, see paragraph 27 at page 10].
13The applicant’s failure to relate his impairments to his essential employment tasks is fatal to his case. At paragraphs 23 and 28 of page 10 of his submissions, the applicant broadly relies on his impairments and symptomology to establish IRB eligibility. However, this stops short of pointing of evidence that establishes the degree to which these accident-related injuries and impairments render him unable to perform his essential employment tasks.
14In fact, much of the applicant’s submissions are dedicated to showing he suffered the accident-related injuries and impairments listed in the March 2021 OCF-3 completed by Dr. Alexander Ryzhykh (chiropractor), which include a clavicle fracture, a concussion, whiplash, neck pain, rotator cuff syndrome, thorax contusion (i.e., chest bruising), headaches and dizziness, nausea and vomiting, a non-organic sleep disorder, phobic anxiety disorders, and an unspecified ataxia (i.e., poor muscle control). However, the applicant’s submissions did not consistently reference evidence by tab and page number as required by the CCRO, and this impeded my review of the applicant’s case because of the difficulties locating evidence in the ambulance call report and Royal Victoria Hospital records at Tab 8 of the applicant’s evidence brief. From what I could pinpoint in these reports, I accept the applicant sustained a deformity (i.e., bruising) to his left clavicle, abrasions and lacerations to his head, a left thumb laceration, superficial abrasions to both legs, left shoulder pain, and headaches as a result of the accident. However, as earlier indicated, these injuries, in and of themselves, do not establish that the applicant suffers a substantial inability to perform his essential work tasks.
15Concerning the applicant’s injuries and symptomology specifically, I was not directed to evidence that persuaded me the applicant continued to experience nausea and vomiting for more than a few days after he left the hospital, nor that Dr. Palao corroborated the applicant’s complaints of dizziness or vertigo with a diagnosis. Similarly, the applicant does not point me to evidence that corroborates Dr. Ryzhykh’s diagnoses of a clavicle fracture or a concussion, and I make the same finding for whiplash, neck pain, rotator cuff syndrome, chest bruising, sleep disorder, and ataxia. In fact, Dr. Palao’s in-person physical examination of the applicant’s complaints on December 22, 2020, produced normal results, queried a possible concussion, and diagnosed a bruised left clavicle.
16While I accept Dr. Singh’s November 2021 report offers diagnoses of adjustment disorder with mixed anxiety and depressed mood, major depressive disorder, somatic symptom disorder with predominant pain, and a vehicular-related phobia, I placed less weight on this evidence because the applicant did not point to contemporaneous complaints of psychological difficulties in the nearly 11 months that elapsed between the time of Dr. Singh’s assessment and the accident. Further, the applicant failed to lead evidence or a medical opinion that supports IRB entitlement owing to the psychological symptomology he raised with Dr. Singh. I find the applicant failed to direct me to where Dr. Singh may have corroborated the applicant’s complaints of experiencing “marked difficulties performing his duties to his full capacity secondary to post accident physical restrictions, impaired cognitive functioning, lack of concentration and mood difficulties.” In my view, Dr. Singh’s note that the applicant “has significant concerns about his inability to work due to ongoing pain and discomfort, which has negatively affected his motivation, productivity, and finances,” is merely a recitation of the applicant’s complaints and does not constitute a medical opinion held by Dr. Singh on the applicant’s inability to work.
17Given that the applicant has failed to provide evidence of the essential work tasks of the employment in which he spent the most time during the 52 weeks before the accident, as well as the degree to which he is substantially unable to perform those tasks as a result of the accident, I am persuaded the applicant has not met his onus to establish entitlement to an IRB under section 5(1)1 of the Schedule. I further find it unnecessary to consider the respondent’s arguments here—or the responses to those arguments in the applicant’s reply because the applicant’s own submissions and evidence do not prove his case.
After the first 104 weeks that followed the accident (from December 16, 2022, and onwards)
18I find the applicant is not entitled to an IRB after the first 104 weeks that followed the accident.
19To receive payment for a post 104-week IRB under section 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
20The applicant relates in both his initial written submissions and reply that he completed high school as well as college courses in business administration. He says his work experience is limited to physical labour and that, given his impairments, he is not capable of doing any work for which he is reasonably trained or educated.
21The respondent’s submissions do not distinguish its arguments on IRB eligibility during the pre-and-post periods.
22The applicant’s post 104-week submissions focus on evidence of his impairments and treatments with little connection to showing how his accident-related injuries and functional limitations render him completely unable to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. Medical records between January and December of 2022 that are referenced in the applicant’s submissions speak to his complaints of anxiety (i.e., panic attacks and fears of a “freak accident” causing harm to family and friends), dizziness when performing his physiotherapy treatments, headaches throughout the day, and heart palpitations. Those records also relate the surgical removal of “foreign bodies” (i.e., glass) from his left thumb, specialist investigations into complaints of vertigo, and ongoing psychological and physical treatments.
23However, the applicant’s submissions do not direct me to evidence that: (1) establishes a complete inability to work due to his accident-related injuries; (2) confirms his education and work experience; or (3) persuades me as to what employment his education, training, and experience might reasonably suit him to perform as required by the Schedule. The applicant does not point to a medical opinion on his employability during the post 104-week period by Dr. Palao or any of the other medical practitioners the applicant consulted during this time, such as Dr. D’arcy Little (physician), Dr. Ryzhykh, Dr. Oluwole Ayeni (plastic surgeon), Dr. Riddell (otolaryngologist), and Dr. Zubina Ladak (psychologist).
24The applicant’s submissions, at paragraph 25 of page 11, say: “Considering the duration of time since the motor vehicle collision and the ongoing nature of (the applicant’s ) impairments, it is anticipated that (he) will likely also meet the (post 104-week test at section 6(2)(b) of the Schedule).” I disagree. In my view, this is a speculative statement that is not supported by the evidence in this case. The applicant goes on in his reply to assert: “Given the impairments noted in the written submissions and available medical evidence, it is clear (the applicant) is unable to perform his pre-accident employment activities for which he is reasonably suited by education, training or experience.” I find this is a misapprehension of the test set out in section 6(2)(b) of the Schedule, which requires the applicant to prove his disability extends to any employment or self-employment he is reasonably suited for, and not just his pre-accident employment activities.
25Accordingly, I am not persuaded that the applicant has met his evidentiary onus per section 6(2)(b) of the Schedule to prove he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
Award
26I find the respondent is not liable to pay an award.
27The applicant seeks 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 ON LAT; and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
28The applicant’s submissions and reply do not articulate arguments or lead evidence on his award claim. The applicant has therefore failed to meet his onus.
ORDER
29The applicant is not entitled to an IRB and the respondent is not liable to pay an award. The case is dismissed.
Released: March 5, 2025
Michael Beauchesne
Adjudicator