Guifang Ye v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 80

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 80

FSCO A13-004113

BETWEEN:

GUIFANG YE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person at ADR Chambers on October 27, 28, 29, 30, 2015 and by written submissions due December 30, 2015

Appearances:

Mr. Jason Jagpal participated for Ms. Guifang Ye

Mr. Darrell March participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Guifang Ye, was injured in a motor vehicle accident (“MVA”) on January 17, 2011 in Ontario. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation and Ms. Ye, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this Hearing are:

1. Is Ms. Ye entitled to income replacement benefits (“IRBs”) for the period from November 9, 2011 and ongoing?

2. Is Ms. Ye entitled to interest for the overdue payment of benefits?

3. Is State Farm liable to pay Ms. Ye’s expenses in respect of the Arbitration?

4. Is Ms. Ye liable to pay State Farm’s expenses in respect of the Arbitration?

Result:

1. Ms. Ye is not entitled to IRBs for the period from November 9, 2011 and ongoing and this claim is dismissed.

2. Ms. Ye is not entitled to receive interest for the overdue payment of benefits and the claim for interest is dismissed.

3. State Farm is entitled to its expenses in this Arbitration. If the parties are unable to agree on expenses, an Expense Hearing shall be requested within thirty (30) days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the amount of such expenses.

EVIDENCE AND ANALYSIS:

At the start of the Hearing, the issues of medical benefits, loss of educational expenses and special award were withdrawn by the Applicant, thereby leaving the remaining issues of interest along with IRBs for the periods from November 9, 2011 and ongoing. The Insurer initially paid IRBs in the amount of $239.85 per week from January 24, 2011 until November 9, 2011, which was the date of stoppage.

BACKGROUND

The Applicant was born in 1966 in China. She is fluent in the Mandarin language. The Applicant obtained her high school diploma while growing up in China. After graduation, the Applicant enrolled at a business college in China. After graduating from the business college, the Applicant worked for the Chinese government in the Chinese Business Department as a statistician for 10 years. After working in the Chinese government, the Applicant began working at the Chinese Central Bank for the next 9 years. She testified that she was responsible for loans and mortgages at the Chinese Central Bank. The Applicant immigrated to Canada in September 2006.

In October 2006, one month after coming Canada, the Applicant enrolled in ESL classes. At approximately the same time, the Applicant began working at a coffee shop; however, this job only lasted a short while. In the meantime, according to the Applicant’s testimony, she decided on a career change from the financial industry to a career as a personal support worker. The Applicant obtained her Professional Support Worker (“PSW”) certificate and diploma. She started working as a PSW in 2009. The Applicant testified that she worked as a PSW for an English-only speaking client named Alex, in addition to securing employment as a PSW for a home care service provider, We Care Home Health Services. The Applicant held both positions until the MVA of January 17, 2011.

On January 17, 2011, the Applicant was involved in an MVA. Police and ambulance attended the scene of the accident and the Applicant was taken to Lakeridge Hospital by EMS. She complained of pain in her lower back, neck, left hip and knees.² At the hospital, she was assessed and X-rays were taken. Ultimately, she was discharged later that same day.

On January 19, 2011, two days after the accident, the Applicant was seen by her family physician, Dr. Fan. In order to deal with the pain, she was prescribed Tylenol #3 and was referred to the King West Clinic to begin treatment of her soft tissue injuries. In addition, Dr. Fan also referred the Applicant to a pain specialist, Dr. Wong, to receive injections and acupuncture, and referred her to Dr. Sy, a psychiatrist, for treatment.³

The Applicant started her accident benefits claim and was approved for treatment which lasted 3-4 months. As stated earlier, she also applied for IRBs and they were paid from January 24, 2011 until November 9, 2011, at a rate of $239.85 per week. It should also be noted that the Applicant was also involved in a second, relatively minor MVA in December of 2012.

ANALYSIS

The onus of proof rests on the Applicant to prove on the balance of probabilities that she is entitled to the benefits claimed. This is confirmed with the decisions of El-Saikali and Co-operators General Insurance Company⁴ and more recently at the Ontario Court of Appeal in Stranges v. Allstate.⁵ I am of the opinion that the Applicant, Ms. Ye, in this case, did not prove her case for entitlement to further benefits beyond what the Insurer has paid to date.

Income Replacement Benefits

One of the two remaining issues was the issue of IRBs. There are 2 parts of this benefit to analyze. The first part is the Applicant’s entitlement to IRBs from the date of stoppage, November 9, 2011, until the two year anniversary of the accident. The second is the Applicant’s entitlement to IRBs from the two year anniversary of the accident and ongoing.

The Applicant must meet the test showing that she suffers a substantial inability to perform the essential tasks of employment in order to qualify for IRBs pursuant to section 5(1) of the SABS.⁶ This is the test used to consider entitlement to IRBs up until the two year mark. If the Applicant meets the “pre-104 week test”, then the Applicant must meet a higher threshold test in order to qualify for entitlement to IRBs past the 104 week mark pursuant to section 6(2)(b) of the SABS.⁷

In this case, based on the evidence presented before me, I am of the opinion that the Applicant failed to prove that she suffered a substantial inability to perform the task of employment past the date of stoppage of November 9, 2011 and therefore is not entitled to further IRBs.

The Applicant’s Testimony

I found the testimony of the Applicant to lack credibility. There were numerous contradictions between her testimony and the evidence presented at the Hearing. I found that the impression that the Applicant attempted to portray to those of us in attendance at the Hearing was not supported by her testimony or the medical evidence presented and most of all was not supported by overall common sense.

There is no disagreement that the Applicant’s native language was not English; it is Mandarin. Much consideration was paid at this Hearing from both Applicant and Insurer counsels to make certain that a qualified interpreter was utilized throughout the Hearing.

The Applicant testified that in addition to her physical pain, her lack of proper English skills is one of the reasons why her employment opportunities are severely limited which is why she believes she meets the test as it relates to a complete inability to be employed. From the evidence provided, there was a discrepancy as to the degree of the Applicant’s English comprehension and speaking skills. Once in Canada, the Applicant enrolled in English classes within one month, followed by successful completion of a PSW certificate and diploma where the courses were taught in English. Prior to her PSW job, she worked at a coffee shop for a short period of time, which is a customer-facing business requiring a person to communicate with colleagues and the public in English. As a PSW, the Applicant worked in an English speaking facility, in addition to the private care she was giving to an English speaking individual. The Applicant testified that she was able to get by with only a few English words.

A PSW is considered a customer-facing job. Clients are required to communicate with their PSW as to what help or assistance is required. As part of her PSW duties, the Applicant testified that she gave prescribed medication to her clients. Based on this information, in my opinion, the Applicant had to be able to communicate in English in order to complete this task.⁸ In fact, with the evidence presented, in a letter dated November 11, 2008 from Mr. Roland Kiebregts, he noted that the Applicant worked as a personal support worker for his parents and that she "communicates well" with his parents.⁹

On the social side, the Applicant testified that she is in a personal relationship and was active on a dating website. The Applicant testified that the individual that she is currently dating does not speak the Mandarin language. He speaks English only. She also testified that she travels by public transit in order to visit him. All of these activities require a conversational understanding of the English language. In my opinion, I believe on the balance of probabilities that the Applicant’s English comprehension is much better than she testified that it is.

The Applicant’s Claim for Income Replacement Benefits up to 104 Weeks Following the MVA

As part of an IRB claim, there is a duty upon an Applicant to undertake best efforts to attempt to return to her prior employment. Based on the evidence in this case, the Applicant failed to do that, and, in fact, she quit her PSW job at We Care Home Health Services and requested a signed closing employment reference from her employer within 48 hours of the Applicant being in the accident.¹⁰ In my opinion, this was a premature request. The Applicant never tried to return to modified duties at We Care Home Health Services even though her employer had a flexible return to work policy that was provided as part of her employment. The Applicant chose not to attempt to utilize this accommodation and instead took the accident as an opportunity in which to terminate her employment.¹¹

Post-Accident Employment

Based on the evidence provided, the Applicant’s post-accident employment has been sporadic. She attempted to continue as a PSW with new clients, but it did not last long. The Applicant also had a temporary position/job teaching Mandarin in 2014.¹² During this time, she also had a temporary job teaching at a Chinese School in Ajax teaching children ages 5-7 years old.

Looking at the evidence at this Hearing, the Applicant’s own expert, Dr. Doxey, suggested that the Applicant has potential for suitable, sedentary employment, specifically in the financial field with proper training and improvement in English fluency.¹³ In the Applicant’s written submission, she referenced, Terry and Wawanesa Mutual Insurance Company¹⁴ as a case that demonstrates her entitlement to IRBs. However after comparing both cases, I believe there are significant differences in Terry and Wawanesa when compared to the one before me, specifically, Mr. Terry was a paving construction worker which is an extremely physical job. He also had no formal post-secondary education on which to rely on. In the case before me, the Applicant is much more fortunate because she is well educated and her PSW job was not as physically demanding as a construction job noted in Terry and Wawanesa. As a result, the opportunities for the Applicant to find suitable work are much higher for her versus Mr. Terry in his case.

Considering all of this evidence, I agree with Dr. Doxey’s comments in his reports. He stated that the Applicant’s background, training and experience along with her above average numerical skills together with the proper ESL upgrading courses and occupation retraining will greatly increase the Applicant’s employment prospects.¹⁵

Income Replacement Benefits Termination

The Insurer continued to pay the Applicant IRBs for approximately 9 months post-MVA. After numerous medical reports and Insurer Examinations (“IE”) the Applicant’s IRBs were terminated as of November 9, 2011 based on two assessment reports. The first report was an orthopedic assessment, dated July 14, 2011, completed by Dr. Abuzgaya.¹⁶ The second report was a psychological assessment, dated October 10, 2011, completed by Dr. Direnfeld.¹⁷

Reported Complaints vs. Medical Evidence

The Reported Complaints

At the Hearing, the Applicant testified that her major pain complaint was related to her shoulder, which has been present since the accident. Immediately after the accident, the Applicant reported her injuries as being pain in her back, neck, leg and generalized pain.¹⁸ On January 26, 2011, approximately 1 week post-accident, the Applicant attended the King West Clinic and was seen by Dr. Anthony Chin.¹⁹ On the Applicant’s OCF-3, dated February 15, 2011, approximately 1 month post-accident, there was no mention of shoulder pain.²⁰ On July 14, 2011, approximately 6 months after the accident, in Dr. Abuzgaya’s IE orthopedic assessment, it was noted that the Applicant complained of pain in her neck, lower back and knee. Again, it was interesting to note that there were no references to any shoulder pain by the Applicant.²¹ Approximately 4 weeks later, on August 17, 2011, in an IE report by Dr. Harmantas, she wrote that the Applicant complained of pain in her neck, lower back, ribs, right hand and suffered from sleep disturbance, but again there was no reference to shoulder pain, and now, no reference to knee pain.²² Finally, in an Occupational Therapy (“OT”) in-home assessment report, written on February 1, 2013 by Maria Puopolo, the Applicant complains of neck, lower back and head pain along with ringing in her ears, but no mention of shoulder or knee pain.²³

There was a substantial number of medical reports and follow-up addendums completed. What was interesting to note in some of these medical reports, was that the Applicant complained about different ailments to different doctors. There was very little consistency in terms of the locations on her body where the Applicant was experiencing pain. The Applicant referred to the case of Burgess and Pembridge Insurance Company.²⁴ However, I find that this case provides little insight or similarities to the case before me.

In Burgess and Pembridge, there was significant medical evidence to why Ms. Burgess was having significant pain issues, not the least of which was that Ms. Burgess in that case had a concussion as a result of the accident. The medical evidence was consistent with the symptoms that she was experiencing. In the case before me, there was no consistency between the medical evidence and the symptoms that the Applicant said she was suffering from. All of the Applicant’s MRIs and X-rays noted there was nothing physically wrong that was attributable to the MVA that the specialists could detect. It wasn’t just one doctor that noted this, there were many and there were many X-rays and MRIs taken at different dates as the Applicant’s accident benefits file was opened.

The Diagnostic Imaging

Once the Applicant complained of pain in specific areas, the various medical professionals ordered X-rays and MRIs to locate the source of pain that the Applicant was complaining about. In order to determine the correct course of treatment, it was important to first understand the root cause of the pain. The most efficient way in which to complete this task, was to have a look at the diagnostic imaging of the areas affected.

On the day of the accident, January 17, 2011, the X-ray of the Applicant’s knees showed proper alignment. Additional X-rays were taken that day and they showed “unremarkable” evidence of injury in the Applicant’s rib cage, lumbar spine, thoracic spine and cervical spine.²⁵ One week post-accident, on January 24, 2011, further X-rays were taken of the Applicant’s shoulder and it was noted that they too were unremarkable in terms of evidence of injury.

A CT scan was completed of the Applicant’s lumbar spine on April 13, 2012.²⁶ The scan indicated a diffused disc bulge at the L5-S1 disc. Dr. Harmantas reported as of May 28, 2012 that she concluded that the disc bulge was not related to the accident.²⁷

In December of 2013, Dr. Fan referred the Applicant for a CT scan of her right shoulder and according to a note in the file on January 24, 2014, an entry was made that there was some evidence of impingement on different maneuvers which would suggest the possibility of impingement syndrome or adhesive capabilities. Clinical correlation and orthopedic assessment are suggested.²⁸ However, an ultrasound of the right shoulder was conducted on January 25, 2014 and the images showed the Applicant’s rotator cuff intact and no abnormal joint or fluid collections.²⁹ A MRI was ordered of the Applicant’s right shoulder on February 22, 2015 and the results showed no acute internal disarrangement of the right shoulder.³⁰ A separate MRI of the left shoulder was taken and it too showed no acute internal disarrangement. The Applicant’s own expert, Dr. Axelrod, when given an opportunity to view the MRI, in his notes stated that the MRI looked normal.³¹

In my opinion, there has been an extraordinary amount of diagnostic imaging conducted of the areas where the Applicant has been complaining of pain and nothing is showing any abnormalities, let alone any injuries that would have potentially been caused as a result of the MVA of January 17, 2011. These diagnostic images have all been seen by many medical professionals and the vast majority of all professionals have come to the same conclusion that the Applicant’s medical evidence completely contradicts her pain complaints.

The Applicant is focusing on Dr. Axelrod’s report to prove her entitlement to IRBs. What was interesting to note in Dr. Axelrod’s September 24, 2014 report is that he stated that the Applicant suffered from a frozen shoulder, however, he did not look at any MRIs of the Applicant’s shoulder before making his initial diagnosis and in fact said an MRI would be of use to view despite already coming to the conclusion that the Applicant suffered from a frozen shoulder. After the diagnosis, the Applicant in fact underwent the suggested MRI. Dr. Axelrod filed an addendum report on April 29, 2015. He concluded that nothing was abnormal in the MRI of the Applicant’s shoulder and, in my opinion, surprisingly stood by his earlier diagnosis of the Applicant having a frozen shoulder.³²

The Medical Reports

It is safe to say that there has been no objection from either side that in fact the Applicant did suffer from soft tissue injuries, however, in my opinion and based on the medical evidence, the degree of severity of the Applicant’s injuries are clearly in dispute. The Applicant continues to complain of pain, but there is no medical evidence to account for why she is in pain.

On January 26, 2011, 9 days post-accident, the Applicant underwent an initial assessment conducted by Judy Hanaman-Ramprasad at the King St. West Clinic. The Applicant was referred to this clinic by her family doctor, Dr. Fan. The exam at the King St. West Clinic concluded that everything was normal in the Applicant’s lower extremities with respect to muscle power reflexes. In addition, in the clinical notes, it was stated that based on the assessment findings, “the Applicant’s injuries meet the criteria to receive treatment within the MIG.”³³

Dr. Abuzgaya, orthopedic surgeon, completed an orthopedic assessment report on July 14, 2011 which was 6 months post-accident. In his report, he stated that the Applicant was able to perform essential tasks of employment as a PSW.³⁴ He based this conclusion on there being no objective evidence of residual musculoskeletal impairment attributable to the injuries from the January 17, 2011 accident. Dr. Abuzgaya was asked to conduct a follow-up report on March 5, 2012, 8 months after his initial report. In his follow-up report, he stated that the conclusions from his first report had not changed.³⁵ There was a third follow-up report completed by Dr. Abuzgaya on November 18, 2013 and he again stated that nothing had changed from the initial report.

I find Dr. Abuzgaya’s report to be extremely enlightening, as he writes that he noted that the Applicant had signs of “symptom magnification behavior”, and concluded that in casual observations, the Applicant showed better range of motion than the actual physical exam.³⁶ What this means is that Dr. Abuzgaya believed that the Applicant was embellishing her pain which seemed to me to be the only constant throughout the evidence. The Applicant submitted a rebuttal report by Audrey Cline, dated December 20, 2012. I find this report to be of little to no value because it addressed attendant care benefits and housekeeping and home maintenance benefits, which were issues not in dispute at this Hearing.³⁷

On August 17, 2011, 7 months post-accident, the Applicant was seen by Dr. Harmantas. I found Dr. Harmantas’ conclusions summed up perfectly the evidence from the MRIs, CT scans and X-rays. The doctor concluded that there was a “poor correlation between the pathophysiology of the Applicant’s injuries and her complaints.”³⁸

Dr. Harmantas also noted that there were not significant findings in the medical charts provided, such as orthopedic or neurological pathology, to account for the Applicant’s considerable complaints.³⁹ In essence, there was no medical evidence present that would cause the pain that the Applicant was claiming to suffer from.

The Applicant was seen by Dr. Direnfeld, and on October 10, 2011, he wrote in his IE psychological assessment that from a psychological perspective, there were no barriers for the Applicant to return to work. Dr. Direnfeld also completed a follow-up report on June 30, 2012, 8 months after his first report, and he concluded that nothing had changed from his first report. A third and final report was completed on March 1, 2013, 8 months after the second report and a full 16 months since the initial report and again Dr. Direnfeld came to the same conclusion that from a psychological perspective, the Applicant had no barriers to stop her from returning to work.⁴⁰

The Applicant did not agree with these findings and she was referred to Dr. Feinstein, a psychiatrist who in his report of July 8, 2014, stated that the Applicant continued to experience ongoing pain.⁴¹ Although summoned as a witness by the Applicant, Dr. Feinstein failed to attend the Hearing. In my opinion, there were inconsistencies within his report and having him as a witness would have helped to clarify his conclusions. The Applicant attended an exam of Dr. Wilderman, and in his report, dated November 13, 2011, he noted that in the knee exam of the Applicant, her gait was normal, and there was no evidence of deformity. There were no signs of swelling or redness, no atrophy of quadriceps, hamstring or calf muscle. He found the same conclusions for the Applicant’s lower back, lumbar area and shoulders.⁴²

As noted earlier, the Applicant also relied on a report of Dr. Axelrod, who concluded that the Applicant suffered from a frozen shoulder.⁴³ In his report, he found normal alignment of the cervical spine and no signs of abnormalities with the shoulders, however as stated earlier, he diagnosed the Applicant with a frozen shoulder even though he did not have an MRI to look at when making this diagnosis. I have trouble believing the validity of Dr. Axelrod’s diagnosis when he confirmed that he did not have an MRI accessible to him which in my opinion would be essential in order to make a medically sound conclusion.

By April 28, 2015, Dr. Axelrod was finally in possession of the Applicant’s MRI of her shoulder, and he concluded in his addendum report that the MRI was essentially normal; however he stated that he was maintaining his original diagnosis of the frozen right shoulder.⁴⁴ In my opinion, Dr. Axelrod’s conclusions have absolutely no credibility.

When viewing the totality of the large volume of medical reports, it can be said that there have been multiple doctors who have re-examined the Applicant every time new medical evidence has been submitted and there has been no evidence found in the scans, X-rays or exams that can explain the Applicant’s complaints of pain. This is not a case of only having one doctor’s opinion over a three year period; there have been multiple doctors. In fact, at last count, there were 15 professionals, of which over 12 were doctors and most have come to the same conclusion; that there is no medical evidence that the Applicant should be suffering the kind of pain that she currently states that she has.

Based on the evidence presented, I believe on the balance of probabilities there is nothing related to the MVA that would prevent the Applicant from returning to some form of employment. Experts have concluded that there are no psychological barriers caused by the accident preventing the Applicant from returning to work.

In my opinion, it might have helped the Applicant’s case if she had produced a medical expert to give oral evidence, but she did not do so. Based on the evidence presented in this Hearing, especially the large amount of medical evidence, I believe on the balance of probabilities that the Applicant could have returned to her pre-accident employment for which she is qualified, and because of this is not entitled to IRBs past the date of stoppage.

IRBs Beyond the 104-Week Mark

Since I have concluded that the Applicant didn’t suffer a substantial inability to perform the duties of her employment, I have no hesitation concluding that she does not suffer from a complete inability to engage in any employment she is reasonably suited to by training, education or experience. In addition, there is nothing that has changed medically in a negative way with the Applicant’s injuries after the post-104 mark. Even if she did meet the pre-104 test, which based on the evidence, she does not; she still would not qualify for post-104 IRBs because, in my opinion, she does not suffer a complete inability to work. In Burtch and Aviva Insurance Company of Canada, the Ontario Court of Appeal stated the following as it relates to the complete inability test for IRBs:

The proper test, which the trial judge recognized earlier in his reasons, is whether, "as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience". It is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required.⁴⁵

Ultimately, I found that the medical evidence provided doesn’t prove the Applicant’s case, the testimony given doesn’t prove the Applicant’s case, and ultimately the Applicant’s own evidence failed to prove in my opinion that she would meet this higher threshold.

Interest for the Overdue Payment of Benefits

Since I’ve determined that no benefits are payable to the Applicant, no interest is payable.

EXPENSES:

The parties made no submissions on expenses. If they are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within thirty (30) days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the amount of such expenses.

March 14, 2016

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2016 ONFSCDRS 80

FSCO A13-004113

BETWEEN:

GUIFANG YE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

1. The Applicant is not entitled to income replacement benefits for the period from November 9, 2011 and ongoing and this claim is dismissed.

2. The Applicant is not entitled to receive interest for the overdue payment of benefits and the claim for interest is dismissed.

3. State Farm is entitled to its expenses in this Arbitration. If the parties are unable to agree on expenses, an Expense Hearing shall be requested within thirty (30) days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code. The request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the amount of such expenses.

March 14, 2016

Jeff Musson

Date

Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 1, Tab 3, pg. 3.
3. 3Applicant’s Closing Written Submissions, pg. 13
4. 4Insurer’s Written Submissions, pg. 15. El-Saikali and Co-operators General Insurance Company (FSCO P01-00059, March 13, 2003).
5. 5Ibid., pg. 16. Stranges v. Allstate (2010) Court of Appeal.
6. 6Section 5(1) of the SABS states that the Insurer shall pay an income replacement benefit to the insured person if that person "suffers a substantial inability to perform the essential tasks of that employment."
7. 7Section 6(2)(b) of the SABS sets out the relevant test: “(2) The insurer is not required to pay an income replacement benefit, (b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.”
8. 8Applicant’s Written Submissions, pg. 8.
9. 9Exhibit 4, Tab 21, pg. 400.
10. 10Exhibit 1, Tab 15A, pg. 9.
11. 11Exhibit 4, Tab 21, pg. 406.
12. 12Insurer’s Written Submissions, pg. 7.
13. 13Applicant’s Brief, Tab 18C, pg. 8.
14. 14Applicant’s Written Submissions, Tab 2, pg. 1, Terry and Wawanesa Mutual Insurance Company.
15. 15Exhibit 1, Tab 18C, pg. 8.
16. 16Exhibit 3, Tab 12A, pg. 145.
17. 17Ibid., Tab 12C, pg. 164.
18. 18Exhibit 1, Tab 3, pg. 3.
19. 19Ibid., Tab 4, pg. 56.
20. 20Ibid., Tab 4, pg. 54.
21. 21Exhibit 3, Tab 12A, pg. 145
22. 22Ibid., Tab 12B, pg. 155.
23. 23Ibid., Tab 13B, pg. 183.
24. 24Applicant’s Written Submission, Tab 3, Burgess and Pembridge Insurance Company (FSCO A11-001160).
25. 25Exhibit 4, Tab 14A-E, pp. 329-338.
26. 26Ibid., Tab 17, pg. 351.
27. 27Exhibit 3, Tab 12N, pg. 242.
28. 28Exhibit 1, Tab 13B, pg. 1.
29. 29Exhibit 4, Tab 16A, pg. 349.
30. 30Ibid., Tab 17, pg. 354.
31. 31Exhibit 1, Tab 18H, pg. 1.
32. 32Ibid.
33. 33Ibid., Tab 8, pg. 16.
34. 34Exhibit 3, Tab 12A, pg. 145.
35. 35Ibid., Tab 12F, pg. 179.
36. 36Ibid., Tab 12O, pg. 289.
37. 37Exhibit 1, Tab 18B.
38. 38Exhibit 3, Tab 12B, pg. 155.
39. 39Ibid.
40. 40Ibid., Tab 12C, pg. 164.
41. 41Applicant’s Written Submissions, pg. 15.
42. 42Applicant’s Brief, Tab 18F, pg. 3.
43. 43Ibid., Tab 18E, pg. 4.
44. 44Applicant’s Brief, 18H, pg. 1.
45. 45Insurer’s Written Submission, pg. 18. Burtch and Aviva Insurance Company of Canada (2009).