Licence Appeal Tribunal File Number: 23-002440/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:
Gyvons Smith
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Thomas Zwiebel, Counsel
For the Respondent:
Heena Kapoor, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Gyvons Smith, the applicant, was involved in an automobile accident on March 8, 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 the respondent, Aviva General 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 (“IRB”) in the amount of $288.49 per week from May 29, 2021 and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to IRBs or interest.
PROCEDURAL ISSUES
CCRO and Submissions
4Both parties participated in a case conference on September 28, 2023, and the case conference report and order (“CCRO”) provided for a written hearing. The written hearing was scheduled for May 31, 2024, with the following deadlines:
i. Applicant’s submissions were due May 1, 2024, and to be no more than 10 pages in length;
ii. Respondent’s submissions were due May 17, 2024 and to be no more than 10 pages in length; and
iii. Applicant’s reply submissions were due May 24, 2024, and to be no more than 5 pages in length.
5The applicant did not file any submissions on May 1, 2024, however, subsequently filed submissions on May 14, 2024.
6The respondent filed submissions, on May 17, 2024, requesting the applicant’s submissions ought to be struck due to his failure to file and serve his submissions on time in accordance with the CCRO. Furthermore, the respondent submits that the applicant failed to comply with CCRO by not providing the respondent with any of the productions ordered.
7The applicant filed reply submissions on May 21, 2024, however, he did not address any of the procedural claims made by the respondent.
8Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 states that, “if a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal”. I acknowledge that as a result of the untimeliness of the applicant’s submissions, the respondent only had four days to file its response. However, when weighing procedural fairness and any potential prejudice, I find the prejudice that would result to the applicant by entirely striking his submissions outweighs the prejudice to the respondent in this case.
9As such, I will consider the applicant’s submissions.
ANALYSIS
Income Replacement Benefits (“IRB”)
10I find that the applicant has not demonstrated entitlement to an IRB.
11To 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.
12The applicant submits that the “medical reports” support that he was and is suffering from a substantial inability to perform the essential tasks of his pre-accident employment, from an impairment caused by the accident, and therefore should be granted and reinstated his IRBs from May 29, 2021, up to 104 weeks, plus interest. The applicant further submits that the s. 44 Physical Demands Analysis Workwell Functional Capacity Evaluation Summary, completed by kinesiologist, Ms. Dawn Rynberk, dated April 14, 2021, made no conclusion as to the applicant’s functional abilities. The applicant submits that the respondent, in its explanation of benefits dated May 12, 2021, relied upon this assessment despite it not having any evidential relevance. Moreover, the applicant argues that s. 44 Orthopaedic Surgery Assessment of Dr. Jacqueline Auguste, orthopaedic surgeon, dated April 22, 2021, was “woefully deficient” and this assessor should have reserved her opinion until the results of further medical imaging.
13The respondent submits that the applicant has not provided any objective medical evidence to support the claim that he is substantially disabled from all of his pre-accident employment duties. The respondent further submits that the applicant has not provided the clinical notes and records of his family physician or treating facilities noting that he still suffers from accident-related injuries and is unable to continue employment.
14The applicant bears the onus to prove on a balance of probabilities, and I find that the applicant has failed to put forward contemporaneous evidence that supports a substantial inability to perform essential tasks of his employment.
15Despite the applicant providing an employer’s confirmation form (“OCF-2”) dated February 2, 2021, with the job description “labourer”, I find that the OCF-2 does not identify what the essential tasks of his pre-accident employment were, or how he is unable to complete them due to accident-related impairments. I also find that neither the Disability Certificate (“OCF-3”) completed by physician Dr. R. Beharry, dated April 3, 2020, nor the Discharge Report (“OCF-24”) completed by Mr. Vahid Ghafarian, dated November 3, 2020, speak to this either. The OCF-3 was completed more than a year prior to the denial of the IRBs and Dr. Beharry marked the applicant’s anticipated duration of disability to be nine to 12 weeks. The applicant has not provided any further evidence from Dr. Beharry, or any other medical practitioner, that would substantiate a finding that the applicant continues to suffer from a substantial inability to perform his employment tasks. I am also not persuaded by the applicant’s reliance on the OCF-24 because, in my view, complaints of pain alone are not sufficient to satisfy the test for IRBs. While I acknowledge that the OCF-24 notes the applicant to have neck and back pain at that time, the OCF-24 does not comment on an inability to continue employment.
16The applicant also relies on an MRI of his cervical spine, dated April 25, 2021, which revealed multilevel severe bilateral foraminal narrowing, degenerative disc disease, and multiple regions of mild cervical cord compression with questionable high signal in the cord. The applicant argues that this contemporaneous medical information substantiates his severe pain in his back and shoulders and the need for strong medication such as Percocet.
17Submissions are not evidence. I do not agree with the applicant that results of an MRI, the use of pharmaceuticals, and a vague assertion of impairment without medical or expert opinion opining on same satisfies the test under s. 5(1) of the Schedule. The applicant has not pointed me to any medical opinion or expert report that interprets the MRI findings, and more importantly, how they relate to the applicant’s alleged inability to engage in employment tasks. Moreover, the applicant has not provided any medical documentation that speaks to why the MRI was completed and how it relates to the accident.
18Furthermore, I am not persuaded by the applicant’s arguments with respect to the s. 44 reports. While the applicant argues that Ms. Rynberk made no conclusion to his functional abilities, I find that the report indicates that he declined to perform testing with his right upper extremity due to pain. I agree with the respondent that the functional portion of the testing was not completed because the applicant chose to not participate in the relevant testing. I find that this does not support or negate the applicant’s functionality because it was the applicant’s choice to not engage is said testing, and as such, I find that Ms. Rynberk could not opine on the applicant’s functional ability because to do so would be speculative.
19With respect to the report of Dr. Auguste, I also do not agree with the applicant that this assessment was “woefully deficient”. The applicant argues that Dr. Auguste could not have opined there was no compelling evidence of any residual exacerbation of pre-existing conditions. This is because despite reviewing the report of Ms. Rynberk, who noted that the applicant reported undergoing a CT scan two weeks prior to Ms. Rynberk’s assessment, Dr. Auguste found that she required “no additional documentation to complete [her] assessment opinion.” I am not persuaded by this argument for two reasons. First, I find that the applicant claiming to have undergone medical imaging in a companion report does not invalidate the objective clinical testing done by Dr. Auguste. Secondly, the applicant has not provided any medical evidence of pre-existing impairments. Therefore, I find that relying on medical imaging that was completed over a year after the accident to confirm an alleged pre-existing condition, that has not been evidenced in the applicant’s pre-accident medical records unpersuasive.
20For clarity, the applicant refers to a CT scan in his submissions, but I find that the evidence referenced is for an MRI of the applicant’s cervical spine dated April 25, 2021.
21Taken together, on a balance of probabilities, I find the evidence does not establish the applicant’s eligibility for an IRB.
Interest
22As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
23I find that:
i. The applicant is not entitled to an IRB;
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and
iii. The application is dismissed.
Released: January 10, 2025
Nadia Mauro
Adjudicator