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K.Y. v. Aviva Insurance Company, 2022 ONLAT 19-001720/AABS

K.Y. v. Aviva Insurance Company, 2022 ONLAT 19-001720/AABS

Following a 6-day video-conference hearing, Adjudicator Lake ruled that the Applicant was entitled to payment of income replacement benefits in the amount of $400.00 per week from July 17, 2019 to date and ongoing, plus interest in accordance with s. 51 of the Statutory Accident Benefits Schedule[1].[2]

The Applicant, a male in his early 50s, was involved in a motor vehicle accident on November 1, 2017. Prior to the accident, he operated his own painting and renovation business. After the accident, he applied for and received income replacement benefits for a period of approximately 1.5 years, at which time, his benefits were terminated by Aviva Insurance Company following insurer medical examinations. The insurer’s medical examiners concluded that the Applicant did not suffer a substantial inability to perform the essential duties of his self-employment as a painter and renovator.

To establish entitlement to income replacement benefits during this timeframe, as prescribed by Sections 5 and 6 of the Statutory Accident Benefits Schedule, the Applicant was required to prove, on a balance of probabilities, that:

  1. From July 17, 2019, which was the effective date of Aviva’s termination of benefits, to November 1, 2019, he suffered a substantial inability to perform the essential duties of his self-employment as a painter and renovator;
  2. From November 2, 2019 to present, he suffered from a complete inability to engage in any employment, for which he is reasonably suited by education, training or experience.[3]

Entitlement during the latter of these timeframes, being more than 2 years after the accident, is commonly referred to as the post-104 “complete inability test” and is a more stringent and strict test to meet. In finding that the Applicant met the “complete inability test”, Adjudicator Lake considered the Applicant’s pre-accident work history, as well as his limited English and technological proficiency. The Adjudicator found that the Applicant had proven that the accident caused his physical and psychological injuries, and that the Applicant’s evidence for the post-104 period was persuasive and uncontradicted.[4]

The Respondent relied on the Psychiatry Assessment Report of Dr. Bruce Ballon to support its denial of income replacement benefits, and whose findings were ultimately given little weight. Following his assessment of the Applicant, Dr. Ballon diagnosed the Applicant with a specific phobia – driving as a driver – as a direct result of the accident. He further opined that the Applicant would benefit from a driving desensitization program. Despite these diagnoses and recommendations, he opined that the Applicant did not suffer a substantial inability to perform the essential duties of his self-employment.

On cross-examination, Dr. Ballon conceded that if driving was an essential task of the applicant’s pre-accident employment, then this fact would change his opinion and he would agree that the Applicant suffered a substantial inability to perform the essential task of driving for his pre-accident employment. Further, with regard to causation, Adjudicator Lake placed little weight on Dr. Ballon’s opinion for the following reasons:

  • His was the only psychological or psychiatric report that called into question the cause of the Applicant’s adjustment disorder;
  • His report contradicted the previous insurer assessment report which diagnosed an adjustment disorder with mixed anxiety and depressed mood, and features of specific phobia (in-vehicular type) as a result of the accident; and
  • There were no pre-accident psychological complaints in the records of the Applicant’s family doctor.[5]

Adjudicator Lake accepted the testimony of the Applicant’s treating pain specialist, Dr. Steven Blitzer, whose opinions were also consistent with Dr. Dilkhush Panjwani, the Applicant’s treating psychiatrist, emphasizing that:

  • While the Applicant was able to complete a token task, he was not able to undertake continuous, regular work;
  • The Applicant was still not able to work at the time of the hearing based on how badly the Applicant feels, seeing how the Applicant functions, and knowing that the Applicant has difficulty completing simple tasks and everyday activities; and
  • The Applicant has severe impairment in his ability to concentrate on a task, to retain new information, to multitask, and to follow instructions.[6]

While the Adjudicator found that the applicant was entitled to payment of the income replacement benefits and interest, he was not entitled to a special award.

Applicants are very commonly faced with the denial of benefits based on the opinion of insurer examiners who evaluate them on a single occasion. While expert evidence plays an important role in establishing or disputing entitlement to benefits, here, the Tribunal placed the greatest weight on the Applicant’s treating practitioners who had the benefit of an extended period of reporting and treatment of him. Ultimately, the Applicant’s credibility could not be challenged, and in the face of strong treating records, the decision to find in favour of the Applicant was reasoned on the evidence.

To read the full decision, please click K.Y v. Aviva Insurance Company, 2022 ONLAT 19-001720/AABS.

[1] O Reg 34/10, s. 51 [SABS].

[2] K.Y v Aviva Insurance Company, 2022 CanLII 151 (ON LAT), at para 57 [K.Y].

[3] SABS supra note 1, ss. 5 and 6.

[4] K.Y supra note 2, at para 50.

[5] Ibid, at paras 47-48.

[6] Ibid, at para 51.


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