LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal File Number: 16-000082/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

J. W. Applicant

and

Echelon General Insurance Company Respondent

DECISION

Adjudicator: D. Gregory Flude

Appearances: Applicant: J. W. Counsel for the Applicant: Kurt Bergmanis Representative for the Respondent: Karen Miranda, Adjuster Counsel for the Respondent: Jamie Pollack

HEARD by Teleconference and In Writing: August 25, 2016

REASONS FOR DECISION AND ORDER

OVERVIEW:

1The applicant, J. W., was injured in an automobile accident on May 15, 2012 and sought an income replacement benefit (IRB) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). The respondent, Echelon General Insurance Company, paid him the IRB until April 24, 2014 when, following an insurer’s medical examination (IE), it determined that the Applicant could return to work. It has not paid him an IRB since that date. The Applicant has applied to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”) for an order reinstating his IRB at the statutory rate from the date of denial to present and ongoing.

2This Application involves two statutory tests for entitlement to an IRB. The first test is applicable for the period from one week after the date of the accident until the second anniversary. During this period, the applicant is entitled to be paid an IRB if he suffered a substantial inability to perform the essential tasks of his pre-accident employment. This test applies for the three weeks from the date of denial on April 24, 2014, to the second anniversary of the accident on May 15, 2014. The Schedule allows for the Applicant to attempt a return to the workforce during this period, and the applicant did return to work for a number of months.

3After 104 weeks, the applicant is only entitled to an IRB if he suffers from a complete, as opposed to a substantial, inability to engage in any employment for which he is reasonably suited by education, training or experience. As the post-104 week entitlement comprises the bulk of the applicant’s claim, the evidence focused mainly on that period.

4The second test is more stringent than the first, encompassing a complete inability to perform any suitable employment. It follows that if I find that his condition has remained substantially unchanged since the date of denial on April 24, 2014, and that he has been incapable of performing any suitable employment, then he would have been substantially incapable of performing the essential tasks of his pre-accident employment during the three weeks prior to the second anniversary of the accident.

5The applicant submits that because of the accident he is psychologically and physically incapable of returning to work. The respondent submits that the applicant’s physical injuries have healed enough that he can return to work. The respondent also submits that any psychological incapacity pre-dates the accident and is not attributable to it.

6For the reasons more fully set out below, I find that the applicant’s physical injuries have healed and are no longer a barrier to his return to the workforce. I also find that he had pre-existing depression and that the accident materially worsened his depression. Because of the accident, he now also suffers from severe post-traumatic stress syndrome (PTSD). His condition is such that he is incapable of performing any employment for which he is suited by education, training, or experience. He has had this incapacity since, at least, April 24, 2014.

ISSUES:

7The issues were identified as follows:

a. Is the applicant entitled to an Income Replacement Benefit at the rate of $126.00/week for the period commencing on April 24, 2014 to May 14, 2014?

b. Is the applicant entitled to an Income Replacement Benefit at the rate of $185.00/week for the period commencing on May 15, 2014 to the date of this decision and ongoing?

c. Is the applicant entitled to interest on any outstanding amounts at the rate of 1% per month compounded?

8I find that:

a. The applicant is entitled to an Income Replacement Benefit at the rate of $126.00/week for the period commencing on April 24, 2014 to May 14, 2014.

b. The applicant is entitled to an Income Replacement Benefit at the rate of $185.00/week for the period commencing on May 15, 2014 to the date of this decision and ongoing.

c. The applicant is entitled to interest on any outstanding amounts at the rate of 1% per month compounded.

FACTS & ANALYSIS

Pre-Accident Medical History:

9The applicant asserts that his physical and psychological injuries render him incapable of working. The respondent submits that his physical injuries have healed. The respondent argues that the applicant’s psychological problems pre-date the May 15, 2012 accident and are not caused by it, pointing to the clinical notes and records from Aquarius Medical Clinic in Vancouver covering the period from May 31, 2009 to November 30, 2011. The applicant submits that his medical records from British Columbia are not relevant. In his testimony, the applicant insisted that he had not been diagnosed with depression prior to the accident. However, in contradiction of that statement, he also stated that he has had a long history of depression, beginning at a young age. A review of his medical records indicates that the applicant has been actively treated with antidepressant medications since in and around February 2009, and supports the respondent`s submissions.

10Notes from an August 30, 2010 visit to Aquarius by the Applicant refer to the applicant being treated with antidepressant medication in and around February 2009 while in Vancouver. During a visit to Aquarius on January 18, 2010, the applicant reported difficulty sleeping and suicidal thoughts because of a work suspension.

11On February 10, 2010 Dr. Tong at Aquarius prescribed medication for depression, despite the applicant`s report that he had been attending counselling and that his mood had improved. At his next visit on March 6 the applicant reported that he had doubled the dose of antidepressant medication to the maximum permitted level, and Dr. Tong recommended that he continue to take the medication. It appears he continued with antidepressant medication thereafter while a patient at Aquarius. I find that his depression pre-dates the accident.

Pre-Accident Employment History:

12The applicant left school in Grade 10 to attend Marvel Beauty School. He worked as a colourist for more than three decades. A colourist, or a colour technician, handles all chemical treatments of the hair, including dyeing, streaking, styling and perms. He testified that he enjoyed his career and found it fulfilling. He lived and worked both in the Greater Toronto Area (GTA) and in Vancouver. He returned to the GTA just prior to the accident.

13Of particular note with respect to his work history in Vancouver was his employment with an international beauty salon called Suki’s Salon and Spa. He worked at Suki’s for about four years. Suki’s suspended him for four days in January 2010, and throughout 2010 the applicant expressed job dissatisfaction to his doctors. In January 2011 he was terminated from Suki’s for assaulting a co-worker.

14Over the next ten or eleven months the applicant had problems getting work. There is passing reference to work in a salon in June 2011; a job he left over a dispute about remuneration. In late fall 2011 he was hired for seasonal work at Costco but left because “it did not work out.” In March 2012 he returned to the GTA. He secured employment in his field at a salon on or about May 6, 2011 where he was paid $600.00 per week.

Post-Accident Employment History:

15The accident occurred on May 15, 2012, nine days after the applicant started work at his new job in the GTA. The applicant sustained serious injuries, including broken ribs, a fracture to his dominant left wrist that required surgery and injuries to his lower back. He was treated at St. Joseph’s Hospital Fracture Clinic.

16The applicant received an IRB from one week following the date of the accident until September 4, 2012 when he returned to work as a colourist. On February 23, 2013 he took a position as an instructor at Marvel Beauty School. In his oral evidence he testified that he suffered pain in his left wrist when holding blow dryers or brushing and that this pain stimulated his decision to move to Marvel. He stayed at Marvel for approximately six weeks before quitting. He gave two reasons for quitting. The first reason was that he had been hired to teach colouring, but Marvel changed his duties to also teach cutting. Difficulties with his wrist made manipulating scissors painful. His second reason was that Marvel had promised him resources he claimed it had failed to deliver.

17The respondent resumed the payment of the IRB to the applicant when he left Marvel and maintained the payment until it was terminated on April 24, 2014. During that period of time the applicant was employed at two or three salons as a colourist, but none of the positions was long-term. On one occasion the salon went out of business and in a second case he was let go for lack of work. He did not report this employment to the respondent. Thereafter, he was unemployed for a lengthy period until the fall of 2014.

18Starting in and around October 2014 the applicant took seasonal work in retail with Purdy’s Chocolatier. The work involved selling and packaging chocolates in a retail setting and dealing with customers. The applicant testified that the work caused him to have pain in his left wrist. The job was extended to Valentine’s Day and then further into 2015. In March, 2015, he attended an interview with a supervisor to discuss full-time employment, but the interview went badly and he was dismissed. He then took a seasonal position with Crate and Barrel in November 2015, but the job appears to have ended in January 2016.

POST ACCIDENT MEDICAL HISTORY:

Physical Impairment:

19As stated above, the applicant sustained a number of broken bones as a result of the accident, the most significant of which, as far as his employability is concerned, was a break to his left wrist that required surgery. As he is left-handed, the left-wrist injury hampered his ability to carry out the essential tasks of his employment. That injury was treated at the St. Joseph’s Hospital Fracture Clinic. By May 2013, one year after the accident, the applicant reported to the Fracture Clinic that his wrist was much better and he was discharged.

20In October, 2013, the respondent sent the applicant to Dr. Getahun, an orthopaedic surgeon, for an orthopaedic assessment. Dr. Getahun determined that the applicant was unable to carry out the functions of his employment. Dr. Getahun identified significant problems with the left wrist as the cause of the applicant’s inability to return to work.

21In March 2014 the Respondent arranged for the applicant to undergo a Multidisciplinary Assessment. The orthopaedic and functional assessments of the Multidisciplinary Assessment both concluded that the applicant’s physical capabilities were such that he could carry out his normal employment activities. His strength, range of motion and endurance were all measured and were found to be within an acceptable range for a return to work.¹

22On the evidence before me, I find that the applicant does not suffer from a physical impairment such that he has a substantial inability to perform the essential tasks of his pre-accident employment. I also find that he does not suffer from a physical impairment sufficient to render him incapable of engaging in any employment for which he may be suited by education, training and experience. He had been discharged from the fracture clinic. On March 21, 2013 he reported to his psychologist, Dr. Harris that his wrist pain had resolved itself.² The Multidisciplinary Assessment in March 2014 had found him physically capable of returning to work. While the applicant still reported pain in his wrist, I note that he did not leave any of his various post-accident jobs because of difficulties with his wrist. It appears that what pain he did have arising out of the accident was manageable in the workplace.

Psychological Impairment:

23The applicant’s psychological impairment pre-dates the April 24, 2014 date on which his IRB was denied by over a year. On March 21, 2013, the applicant was seen by Dr. Ricardo Harris, a psychologist, for an assessment.³ While recognizing that the Applicant’s depression pre-dated the accident,⁴ Dr. Harris found that, as a result of the accident, the Applicant was suffering from “Post-Traumatic Stress Disorder, Chronic, and an Adjustment Reaction with Depressed Mood, Severe.” Because of his fear, anxiety, isolation and irritability, he could not carry on a normal life. Dr. Harris recommended 12 treatment sessions with his colleague, Dr. Iammarino.

24There was also a psychological component to the Multidisciplinary Assessment, carried out by Dr. Kerry Lawson, a psychologist, on March 19, 2014. Dr. Lawson agrees that the accident materially contributed to the applicant’s psychological condition. Her findings differ from those of Dr. Harris only by degree. Whereas Drs. Harris and Iammarino conclude that the Applicant’s psychological impairment is severe, Dr. Lawson takes the position that it is moderate and that the applicant could return to work. In agreeing that the accident materially impacted the applicant’s condition, she concludes:

Based on self-report, as well as a review of the file documentation, it does not appear [J.W.] was experiencing his current degree of emotional distress or level of pain severity and associated symptomatology, in the year prior to the subject MVA. As such, it is my view that these aspects of his current clinical presentation remain materially related to the accident in question.

25I prefer the diagnoses of Drs. Harris and Iammarino over that of Dr. Lawson. The former two psychologists have had a long-term relationship with the applicant. Dr. Iammarino has counselled him through episodes of suicidal thoughts. In one particular instance, the applicant testified to standing on the bridge over Highway 403 about to jump off. Without Dr. Iammarino’s ongoing counsel, the outcome may have been drastically different. With no disrespect to Dr. Lawson, I am of the view that the more extensive relationship of the treating psychologists provides greater insight into the applicant’s condition than even the most thorough single examination. Accordingly I find the applicant suffers from chronic post-traumatic stress disorder and severe adjustment reaction with depressed mood. The severity of his current condition is materially related to the accident.

26Drs. Harris and Iammarino are both of the opinion that the applicant’s psychological condition is of such severity that he cannot return to work at present. They state in their July 18, 2016 report that the applicant “is not capable of working.”⁵

Complete Inability:

27The regulatory test for entitlement to an IRB after 104 weeks from the date of the accident is set out in s. 6 (2)(b) of the Schedule. To qualify, the applicant must demonstrate that, as a result of the accident, he has a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. As stated above, by satisfying the more stringent post-104 week test from at least April 24, 2014, the applicant also satisfies the substantial inability test applicable during the three weeks from April 24, 2014 to the second anniversary of the accident on May 15, 2014.

28Neither the applicant nor the respondent submitted evidence of employment for which the applicant might be reasonably suited by education, training, or experience. I note that the applicant’s training and experience have been in the beauty industry as a colourist. Since his accident he has made unsuccessful attempts to return to that industry. He has also made unsuccessful attempts to find a position in general retail. There were no submissions suggesting that general retail was not a reasonable equivalent in accordance with the regulatory test set out in s. 6 (2)(b) of the Schedule. No other potential field of employment was advanced as a suitable occupation for the applicant.

29The applicant points to his many failed attempts to find and retain employment as proof of his complete inability to work. He worked for one lengthy period of employment at Purdy’s Chocolatier which ended as a result of conflict with a supervisor. The respondent submits that the short-term nature of the applicant’s employment is as a result of either the seasonal nature of the jobs in question or the premises going out of business. I accept the applicant’s submission. I agree that the applicant did apply for employment that was generally seasonal in nature. His experience at Purdy’s Chocolatier, where seasonal employment was extended and may have changed into full time employment, indicates to me that the applicant was genuine in his attempts to get back into the workplace. The applicant testified that he met with his supervisor to discuss full-time employment but reacted badly at the interview.

30While his response reflects behaviour that the applicant was beginning to manifest in Vancouver, his return to the GTA began on a bright note. He secured employment in his field at an acceptable remuneration. Drs. Harris and Iammarino identify the accident as the factor that causes the applicant’s condition to deteriorate to the point where the applicant is not capable of working in his present condition.

31I am satisfied on all of the evidence that the applicant is completely unable to engage in any employment for which he is suited by education, training or experience in his present condition.

QUANTUM OF BENEFIT:

32There is no dispute concerning the amount of the benefit. Since the applicant had only recently returned to work following a low earning year in Vancouver and a move to the GTA, according to s. 4 (2) 1. of the Schedule, his entitlement to income replacement benefits was calculated based on his previous 52 weeks of income. That amount is calculated to be $126/week. After 104 weeks, s. 7 (1) 1. ii of the Schedule increases the amount payable to $185/week going forward.

INTEREST:

33The Applicant seeks interest at 1% per month compounded monthly on all outstanding benefits. Section 51 of the Schedule governs the liability of an insurer to pay interest. Its language is mandatory. The respondent is liable to pay interest on any payment found to be overdue at the rate of 1% per month compounded monthly. I find that the respondent is liable to pay interest at the regulatory rate for all overdue payments. No interest calculations were submitted to me by the parties. If they cannot agree on the total interest outstanding, they may apply to me for a timetable to make further written submissions on the quantum of interest.

ORDER:

34I direct the respondent, Echelon General Insurance Company, to pay to the applicant, J. W.:

a. An Income Replacement Benefit in the amount of $126.00/week from April 24, 2014 to May 14, 2014,

b. An Income Replacement Benefit in the amount of $185.00 per week from May 15, 2014 to the date of this order and ongoing, and

c. Interest on the above amounts at the regulatory rate of 1% per month compounded monthly for the number of days such amounts have been outstanding.

Footnotes

1. 1Respondent’s Document Brief Tab K
2. 2Applicant’s Documents Part 2 Tab 9
3. 3Applicant’s Documents Part 2 Tab 9
4. 4Applicant’s Documents Part 2 Tab 9
5. 5Applicant’s Documents Tab 1```