Licence Appeal Tribunal File Number: 22-007785/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:
Amit Missra
Applicant
And
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Ian Drong, Counsel
For the Respondent:
Priyanka Monpara, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amit Missra, the applicant, was involved in an automobile accident on February 3, 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 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 $400.00 per week from December 8, 2020 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
3At the case conference held on March 22, 2023, the applicant withdrew their claim for an award and four additional treatment plans were added to the issues in dispute on consent.
4In a Notice of Motion dated November 8, 2023, the applicant withdrew the four treatment plans added at the case conference.
RESULT
5The applicant is not entitled to an IRB as they have not shown what the weekly quantum would be.
6No interest is owed on any overdue payments.
PROCEDURAL ISSUE
7In its submissions, the respondent mentions filing an application for repayment of IRBs. In the applicant’s submissions, they address this issue and defend their position.
8As repayment of IRBs is not one of the issues in dispute, I will not contemplate the arguments as the issue is not properly before me.
ANALYSIS
Is the applicant entitled to IRBs?
9The applicant is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.
10For the reasons that follow, I find that the applicant does meet the test for Pre-104 IRBs but does not meet the test for Post-104 IRBs.
a) Has the applicant met the test for Pre-104 IRBs?
11The applicant meets the test for pre-104 IRBs. However, since the applicant has not properly complied with s. 33 (1) of the Schedule, no quantum can be determined.
12To 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. If the applicant was not employed at the time of the accident, to be eligible for an IRB under s. 5(1)(ii), the applicant must have been employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act. 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.
13Furthermore, it is incumbent on the applicant when claiming an IRB to comply with s. 33(1).1 of the Schedule. This section helps determine what the amount of the specified benefit (quantum) should be. Under s. 33(6), the respondent is not liable to pay a specified benefit for any time period where the applicant has not complied with section 33(1). The respondent has made repeated requests from the start of the claim for all financial documents necessary to determine quantum. The applicant did receive IRB payments from February 10, 2020 until January 6, 2021, however, the financial documents proved to date, make it impossible to determine quantum. Based on the evidence, the applicant has not filed any income tax returns since 2019, has provided E.I. files up to August of 2020 and has not applied for CPP or WSIB, which the applicant, again based on the evidence provided, may be entitled to.
14The applicant argues that he suffered a substantial inability to perform essential tasks of employment and therefore meets the test for IRBs. The applicant relies on the reports of Chronic Pain Specialist Dr. Wilderman, Orthopaedic Surgeon Dr. Getahun, and Psychologist Dr. Harris, which the applicant argues show that he is incapable of returning to his pre-accident employment or any employment which would be deemed suitable based on his background, experience and education.
15In his report dated January 13, 2022, Dr. Wilderman noted that the applicant suffered from chronic pain, anxiety, and depression. Dr. Wilderman opined that the applicant suffered from a substantial inability to perform tasks at a pre-accident level. Similarly, Dr. Getahun in his report dated December 21, 2021 noted that the applicant had a substantial inability to complete normal tasks of daily living. Dr. Getahun, in his addendum report of May 9, 2022 agreed with Dr. Wilderman that the applicant suffers from chronic pain. The assessment of Dr. Harris, completed on September 27, 2021 showed the applicant to have a substantial inability to carry on with his activities of daily living.
16The respondent relies on the reports of Kinesiologist Mr. Bullard, Psychologist Dr. El-Hage and Family and Occupational Health Physician Dr. Jugnundan.
17Mr. Bullard completed a functional capacity evaluation and opined that the applicant did not have functional limitations which would preclude him from completing the essential tasks of his pre-accident employment.
18Dr. El-Hage completed a Psychological Assessment Report on October 23, 2020 and concluded that the applicant meets the criteria for Adjustment Disorder with Depressed Mood, but the symptoms are not severe enough to hinder his return to pre-accident levels of employment.
19Dr. Jugnundan completed a GP Assessment Report on November 12, 2020 and concluded that the applicant does not suffer a substantial inability to return to pre-accident levels of employment, as he was a computer programmer and the work was sedentary in nature.
20I prefer the applicant’s evidence and give more weight to their expert finding than those of the respondent. It is clear that the applicant suffered from a substantial inability to return to pre-accident employment. The applicant has been able to show that they suffered from chronic pain and was struggling with activities of daily living. At the very least, the applicant suffered from Adjustment Disorder with Depressed Mood, as opined by the respondents assessor Dr. El-Hage, which combined with the consistent reporting of pain by the applicant, warrants a finding of a substantial inability to return to work within 104 weeks of the subject motor vehicle accident.
21The applicant has met their burden of proof that they suffered from a substantial inability to return to work and would not be able to perform the essential tasks required of him, within 104 weeks of the subject accident.
b) Has the applicant met the test for Post-104 IRBs?
22I find that the applicant does not meet the Post-104 test for IRBs.
23To 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.
24The applicant and respondent both rely on the same evidence and reports as mentioned above.
25The applicant argues that they have met their burden of proof and qualify for post-104 IRBs, whereas the respondent disagrees and argues that the applicant does not suffer from a complete inability to engage in employment which they are trained or educated for.
26I agree with the respondent. The applicant has not been able to meet the test that based on the 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”.
27The medical records available for the post-104 week period are not as comprehensive as the pre-104 period. From the records available, it seems the applicant has had some success in managing his pain with limited medication and has been able to return to some activities of daily living. There is little medical evidence shows the applicant suffers from a complete inability to engage in employment that he is reasonably suited for.
28The applicant does not qualify for post-104 IRBs.
Quantum of IRBs in dispute
29The applicant received IRB payments of $400 per week from February 10, 2020 to January 6, 2021. The evidence provided shows that the applicant was on Employment Insurance until July 25, 2020. It is also not clear whether the applicant has applied for WSIB or CPPD since the accident. Qualifying for and receiving funds from these programs will affect any quantum amount. It is not clear after 2019 what the applicant’s income was, as the tax returns have not been filed. While I accept the applicant’s argument that they have provided every financial document they have, it is impossible to determine a quantum for IRBs from December 8, 2020 without having the proper financial documents. Without tax returns and financial statements from 2020 and 2021, I find I cannot determine a quantum.
30While I find the applicant is entitled to pre-104 IRBs, I find that based on the information and evidence given, I cannot determine a quantum.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the IRB is not payable, no interest is awarded.
ORDER
32I order the following:
i. No IRB entitled is awarded;
ii. No interest is due on overdue benefits; and
iii. The application is dismissed.
Released: April 2, 2025
Gareth Neilson
Adjudicator