16-003683 v. Pafco Insurance, 2017 CanLII 69454

Licence Appeal Tribunal

Date: 2017-10-18

Tribunal File Number: 16-003683/AABS

Case Name: 16-003683 v Pafco Insurance

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:

Applicant

and

Pafco Insurance

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Geoffrey A. Bogo, counsel

For the Respondent: Richard Horst, counsel

HEARD IN WRITING: June 21, 2017

OVERVIEW

1The applicant was injured in a motor vehicle accident on July 17, 2013. The applicant applied for accident benefits from Pafco Insurance (the "respondent") under the Statutory Accident Benefit Schedule –effective September 1, 2010 (the "Schedule")

2The respondent accepted the applicant's claim for income replacement benefits (IRB) and paid the applicant the sum of $400.00 per week commencing July 22, 2013 and ending on November 25, 2014.

3The respondent's position at this time, as stated in a November 25, 2017 letter to the applicant, was that the applicant no longer qualified for an IRB after November 25, 2014, and therefore was not entitled to any further benefits. The applicant challenges that denial in this matter.

4In its written submissions, the respondent now also claims that, in error, it continued the payments until March 9, 2015, overpaying the applicant a further $6,057.14. The respondent seeks a repayment by the applicant of the overpayment. I will deal with this issue separately from the issues which appear in the case conference order, as set-out in paragraph 5.

ISSUES IN DISPUTE

5At the case conference of this matter, the parties identified the issues in dispute. Those issues are reflected in the case conference order as follows:

(a) Did the applicant sustain impairment within the meaning of the Schedule as a result of the accident?

(b) Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 for the period November 25, 2014 to date, and ongoing?

RESULT

6I find that the applicant has not proven beyond a balance of probabilities that he has met the requirements of section 6 of the Schedule, and therefore is not entitled to receive a weekly IRB in the amount of $400.00 for the period November 25, 2014 to date, and ongoing.

7Regarding the overpayment issue raised by the respondent in its written submissions, the overpayment occurred through the respondent's error. Subject to any limitation periods, this issue however was not raised at the case conference, and therefore is not an issue currently before the Tribunal. The respondent will have to bring a new application for this issue, to be heard by the Tribunal at another time.

THE LAW, EVIDENCE AND ANALYSIS

Did the applicant sustain impairment within the meaning of the Schedule as a result of the accident, and if so, did it cause the applicant to be unable to work?

8The applicant is seeking to continue his income replacement benefits for a period that is within 104 weeks after the disability, and then continues on after 104 weeks after the disability. Section 6 of the Schedule thus requires him to show (1) for the period up to 104 weeks that as a result of the accident, he suffers a substantial inability to perform the essential tasks of his or her employment("pre 104 test"), and (2) for the period after 104 weeks, that, as a result of the accident, he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience (the "post 104 test"). I find that as of November 25, 2014 he does not meet either test for the reasons below.

9The applicant is 50 years of age and had been working full time as a machine operator at the time of the accident. The Job Site Analysis report dated February 20, 2014, described his job to be considered "a casual pace" as the worker stands by a machine, while the machine performs the majority of the work. The worker has to change the drill bits of various weights between 30-40 lbs. throughout the day.

10The applicant had no previous medical problem that interfered with his working full time.

11The ambulance report dated July 17, 2013 indicated that there was very little damage to the applicant's car. No air bags were set off by the accident. The applicant got out of his car without any assistance and walked around unassisted, talking to the police. There was no trauma noted. The applicant complained about a "stabbing back pain in his lower back area ". The Oakville Healthcare Services Report dated July 17, 2013, also described similar findings as set out in the ambulance report.

12The other many medical reports, however, submitted by both parties are conflicting, and at odds with one another, as to what the medical conditions are as a result of the accident, and their effect on the applicant.

13The applicant's doctor, Dr. Knapp, in his report dated July 17, 2013 – the day of the accident - noted that the applicant had mild degenerate changes of the lumber spine at L3-L5. Dr. Graham at the Credit Valley Hospital, in his October 12, 2013 report, after an MRI, also concluded the applicant had mild degenerate changes in the same area as noted by Dr. Knapp. Dr. Graham's report stated that there was no evidence of an acute or remote fracture. Neither doctor related the mild degenerate changes as being incurred as a result of the car accident.

14The applicant saw chiropractor Dr. Gard on July 13, 2013, who completed a Disability Certificate ("OCF 3"). The OCF 3 indicated that the applicant's post - accident sequelae included a WAD-II neck and lumbar strain injury. Dr. Gard concluded that the injuries rendered the applicant unable to perform the essential tasks of his pre-accident employment or to resume any type of modified hours or duties.

15In February of 2014, the applicant was assessed by Dr. Shawn Kavanaugh, a chiropractor, on behalf of the respondent. In his report dated February 12, 2014, Dr. Kavanaugh noted that the applicant sat for 1.5 hours during intake, without complaining of pain. The doctor also made findings of "inconsistent and submaximal effort" on behalf of the applicant in applying himself to the various tests administered to him as part of the assessment.

16Dr. Marc Mandel, a psychologist, in his March 26, 2014 report, opined that there was a lack of consistent objective information to suggest that the applicant suffers clinically significant symptoms or that would indicate a substantial psychological impairment and disability as a result of the accident.

17Dr. Mandel's report also indicated that the applicant does not, from a psychological perspective, suffer a substantial inability to perform the essential tasks of his pre accident employment. Dr. Mandel also noted that the results of some of the tests suggested that the applicant displayed "exaggerated symptom magnification in some areas".

18The applicant saw Dr. Efala, an orthopedic surgeon, on April 6, 2016. Dr. Efala opined that the applicant's symptoms of chronic back pain are compatible with degenerate disc diseases on the lumbar spine. He recommended passive physiotherapy.

19The applicant was seen on March 2, 2017 by Dr. Rick Zarnett, an orthopedic surgeon. Dr. Zarnett indicated that the applicant's prospects for resuming any employment were poor, because the applicant had developed "chronic pain syndrome".

20The applicant was seen by Dr. Judith Pilowsky a clinical psychologist for a psychovocational assessment on February 8, 2017. Dr. Pilowsky concluded that the applicant has a loss of self-esteem, sleep disorder and a sense of shame and inadequacy. Dr. Pilowsky also pointed out that English was not his first language, creating a mild language barrier in the workplace. Dr. Pilowsky opined that the applicant was functioning at a borderline intelligence, and was not a candidate at this stage for any form of retraining or upgrading.

21Dr. Zabieliauskas, physiatrist, examined the applicant on behalf of the respondent. In his October 10, 2013, January 30, 2014, and October 16, 2013 reports, he noted that the applicant was overweight before the accident, and had had gained weight since the accident," overloading his lumbar facet joint causing the back pain". The back pain, therefore, related to his obesity and not to the accident. The doctor also opined that if the applicant reduced his weight by 50 lbs, the applicant could resume his previous employment. The doctor also found no objective physical findings to support the applicant's voiced pain complaints. The applicant exhibited a good range of motion of all lower extremities without reporting pain. Thus, the doctor opined that the applicant sustained only a minor injury.

22I prefer the evidence of Dr. Knapp, Dr. Graham and Dr. Efala regarding the source of the applicant's pain. All stated that there were mild degenerate changes of the lumbar spine, which was causing the pain claimed by the applicant. All agreed that the changes and the pain were not exacerbated as a result of the accident.

23I accept the opinions of Dr. Zabieliauskas. I find his reports to be in depth, looking at all of the issues including obesity, in an independent evaluation. The reports were consistent in 2013, 2014, and in 2016 relating to the obesity issue which was not commented on in any other medical reports. I note from the medical reports of Dr. Zabieliauskas that a programme to reduce the weight was recommended to the applicant, with the applicant making a minor attempt to lose weight. I do not have before me evidence of a real effort made by the applicant to lose weight, to see if his pain would be reduced or eliminated with a loss of weight.

24I prefer the evidence of Dr. Marc Mandel, whose report addressed the psychological impairment, over the evidence of Dr. Judith Pilowsky. Dr. Mandel, related his assessment findings to the accident as set out in paragraph 17 above, and not to other factors such as language, education, sleep disorder, etc., as set out in the report of Dr. Pilowsky.

25I accept the evidence in the report of Dr. Shawn Kavanaugh indicating that the applicant had no pain complaints during his intake for 1.5 hours in 2014. This suggests that the applicant was possibly embellishing the degree of pain as set out in the later medical reports, and as also noted in Dr. Mandel's report.

26There was no evidence put before me of any attempt by the applicant to seek work at any modified job at his former place of work, or at any new job. Nor was there any evidence of a complete inability to do those jobs as a result of the accident.

27Based on the above, I conclude that the applicant has not met his onus in establishing that as of November 25, 2014 that the accident resulted in either a substantial inability to perform the essential tasks of his or her employment, or for the period after 104 weeks, that he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. Thus, he is not entitled to an IRB after November 25, 2014.

28As set-out above, I find the repayment issue is not properly before me.