Tribunal File Number: 17-001822/AABS
Case Name: 17-001822 v Aviva Insurance Canada
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Daniel Klein, Counsel
For the Respondent: Loretta De Thomasis, Counsel
HEARD: In person on October 3 & 4, 2017
OVERVIEW:
1[The applicant] (the “applicant”) was involved in an accident on April 28, 2016. She applied for accident benefits to Aviva Insurance Canada (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied the applicant’s entitlement to benefits and she filed an application with the Licence Appeal Tribunal.
2The parties were unable to resolve the issues in dispute and an in-person hearing was held on October 3 & 4, 2017. I have been asked to determine the following:
ISSUES IN DISPUTE:
(i) Is the applicant entitled to receive a weekly income replacement benefit (“IRB”) in the amount of $290.50 per week, from February 5, 2017 to date and ongoing denied January 26, 2017?
(ii) Is the applicant entitled to an examination expense in the amount of $2,486.00 for a chronic pain assessment, recommended by Dr. Steven Brown denied by the respondent on July 25, 2017?
(iii) Is the applicant entitled to interest on the overdue amounts?
RESULT:
3For the reasons that follow, I find the following:
(i) The applicant is entitled to receive a weekly IRB in the amount of $290.50 per week, from February 5, 2017 to date and ongoing less any post- accident income;
(ii) The applicant is entitled to an examination expense in the amount of $2,000.00 for a chronic pain assessment, recommended by Dr. Steven Brown denied by the respondent on July 25, 2017;
(iii) The applicant is entitled to interest on the overdue amounts for the income replacement benefit; and
(iv) The applicant is not entitled to interest on the examination expense as it has not been incurred.
ANALYSIS:
Is the applicant entitled to payment of an IRB?
4The applicant is thirty years old and has two children who at the time of the accident were four and a half and one year and four months old. Prior to the accident, the applicant was independent in caring for her two children. The applicant did not have any pre-existing physical or psychological issues that required medical attention.
5Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person:
(i) Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
6Both parties agree that the applicant was employed as a sales representative with Telus Mobility (“Telus”) at the time of the accident and had been employed there for approximately 8 years. Further, they agree that she sustained an impairment within 104 weeks of and as a result of the accident. The respondent paid the applicant an IRB from May 5, 2016 to February 5, 2017. What is in dispute is whether the applicant continued to suffer a substantial inability to perform the essential tasks of her employment from February 5, 2017 to date.
What are the essential tasks of the applicant’s employment?
7To determine entitlement I must first look at the essential tasks of the applicant’s employment. Based on the Job Overview for a sales representative with Telus1 the essential tasks of the applicant’s job are as follows:
(i) Constant walking and standing;
(ii) Frequent hand/wrist finger activity with each transaction including using a scanner, and keying information into a computer and using a mouse;
(iii) Frequent shoulder activity to write, operate scanner, computer and reaching for products and accessories from shelves and display cases;
(iv) Constant verbal communication with customers;
(v) Frequent reading information off of monitor and documents to operate equipment, devices and to handle payments;
(vi) Occasional neck activity- forward flexion when viewing information and when operating equipment;
(vii) Occasional back activity to stoop, bend and twist in order to interact with customers, deposit money in safe and to access products on shelves; and
(viii) Seldom sitting, climbing, kneeling, squatting and crouching.
Is the applicant substantially unable to perform the essential tasks of her employment?
8I find that the applicant suffers a substantial inability to perform the essential tasks of her job as a sales representative for the following reasons:
Applicant’s Pre-and Post-accident Work History
9The applicant attempted to return to work on a few occasions: in May 2016 and June 2016 for a few days and for five weeks in November 2016. She had difficulties concentrating, dealing with pain and lifting her arm so she took medical leaves and eventually abandoned her job in December 2016.
10The applicant contends that commuting to work by bus made her head hurt due to the noise, and she had pain in her shoulders, left arm and back. She called in sick a lot because she could not handle the pain and was too depressed to deal with the demands of her job. She was not motivated to sell and would sit at the back of the store and give her sales to other people. She submitted that she received her first zero on a customer survey after 8 years as a sales representative. She attributes her poor performance to the physical pain and anxiety and depression she sustained as a result of the accident.
11The applicant’s supervisor at Telus provided evidence at the hearing. He verified that he started supervising the applicant in December 2015. Prior to the accident the applicant came in on time and did what was asked of her. She did not have any excessive absences. He indicated that from a physical perspective the job of a sales representative entails light duties and requires constant use of the hands to manipulate data. However, he stated that customer service is their number one priority. It is important for an employee to be on time, be happy to talk to people and to be motivated to sell phones and accessories.
12He stated that after the accident the applicant came into work for a few days and complained of pain. She could not lift her arm and took a medical leave from May 3, 2015 to June 6, 2015. She attempted to come back for a few days in June and went on medical leave again. In November 2016, she attempted to come back to work for the third time. The applicant’s attendance was sporadic – she did not show up for most shifts and there were numerous no calls/no shows. Her performance was poor. When he spoke with her she confirmed it was because of the accident. He testified that the applicant abandoned her job in December 2016.
13The respondent argued that the last disability certificate completed by Dr. Sardari, a chiropractor on December 23, 2016 did not support that the applicant had a substantial inability from completing the essential tasks of her employment. The disability certificate indicated that the applicant could return to work on modified duties. The respondent maintained that the fact that the applicant attempted to return to work on a few occasions was evidence of her ability to work. I do not find this evidence persuasive when compared to the facts and other evidence. Further, I agree with the applicant that an insured should not be penalized for attempting to return to work. I accept the applicant and her supervisor’s testimony that she tried to return to work but could not due to psychological issues and chronic pain (which I discuss below).
Medical Evidence
Dr. Brown’s Chronic Pain Assessment
14First, I preferred the chronic pain assessment report of Dr. Steven Brown, chronic pain specialist dated August 28, 2017 over the reports of the insurer examination (“IE”) assessors Dr. Fathi Abuzgaya, orthopaedic surgeon and Dr.Rakesh Ratti, psychologist both dated November 1, 2016.
15Dr. Brown testified that prior to preparing his report he reviewed medical documentation, conducted an hour long clinical interview, a physical examination and administered a series of tests. Dr. Brown diagnosed the applicant with the following accident related impairments:
(i) Chronic pain disorder associated with both psychological factors and a general medical condition;
(ii) Chronic pain of the cervical spine; and
(iii) Left shoulder heaviness (possible cervical radiculopathy).
16Dr. Brown found that the applicant’s impairments have affected her ability to perform the essential physical and cognitive tasks of working as a sales representative for Telus. Further, he stated “her pain symptoms and fatigue have resulted in deconditioning, reduced endurance, and decreased focus. Her ability to function at her pre-accident status is limited to both physical and psychological factors.” These impairments have decreased her ability to work as well as her competitive advantage and employability. In addition, her impairments have affected her psychological well- being and have compromised her ability to care for her children.
17I found Dr. Brown’s report more thorough and his testimony more consistent with the evidence submitted by the applicant. Dr. Brown testified that one thing he found compelling from the medical documentation he reviewed was that the applicant’s complaints were consistent through all of the assessments and her pain was increasing. I agree with Dr. Brown’s analysis of the consistency in which the applicant reported her symptoms of pain.
18The tests Dr. Brown administered corroborated the applicant’s self-reports of pain and the test results were valid. Evidence of the applicant’s chronic pain is corroborated through the clinical notes and records of the Yorkdale Wellness Centre (“clinic”). From March 1, 2017 to August 11, 2017, the applicant attended the clinic approximately 28 times for various treatments. While attending this clinic the applicant consistently complained of severe pain and was actively participating in treatment.
19Second, the respondent’s IE assessors found that the applicant sustained an impairment as a result of the accident and that her presentation during their assessments were valid. I found the conclusions of Dr. Abuzgaya and Dr. Ratti in both reports inconsistent and lacking in analysis.
Orthopaedic IE
20Dr. Abuzgaya’s orthopaedic IE dated November 1, 2016 consisted of a clinical interview, document review and physical examination. Dr. Abuzgaya diagnosed the applicant with cervical sprain and bilateral shoulder sprain. The doctor noted that the Spurling test was positive as the applicant showed signs of nerve root irritation on the left side and significant numbness and tingling of the fourth and fifth finger on the left side.2 Dr. Abuzgaya testified that the fact that the Spurling test was positive meant that if the exam leads to pain the patient must have pain.
21Dr. Abuzgaya found that the applicant’s impairments were as a result of the accident and recommended an x-ray and MRI for further investigation. The results of the x-ray and MRI conducted after his assessment showed the applicant’s condition was partially degenerative and in his view not related to the accident.
22Dr. Abuzgaya came to the conclusion that “based on review of the functional abilities evaluation dated October 18, 2016, completed by Dr. Paul Kominek and from his own physical examination that the applicant does not suffer a substantial inability to perform the essential tasks of her employment.”
23When asked during cross-examination whether he explored with the applicant why she had not returned to work he did not remember. I did not find Dr. Abuzgaya’s testimony to be persuasive. In my opinion, this is a basic and fundamental question that an assessor, who is determining whether an insured has a substantial inability to return to work, would ask. I put less weight on the opinions expressed by Dr. Abuzgaya because of his inability to recall asking the applicant for this information.
24Furthermore, Dr. Abuzgaya stated that the there was no indication that the applicant suffered from chronic pain. However, Dr. Ratti’s psychological IE noted that the applicant’s scores on the McGill Pain Questionnaire are within the range that is typically reported by individuals with chronic pain. Not only was Dr. Abuzgaya’s statement inconsistent but the quotes he took from Dr. Ratti’s report were selective. He quotes that Dr. Ratti did not find a substantial inability from a psychological perspective but leaves out other relevant factors such as his reference to chronic pain, his diagnosis and that the applicant could not care for her children.
25Dr. Abuzgaya was asked during cross examination if he felt that the applicant’s use of her left arm was a necessary part of her job at Telus. He testified that he relied on the results of the FAE and work demands analysis which are more repetitive examinations. I find that Dr. Abuzgaya relied too heavily on Dr. Kominek’s reports, which is another reason I place less weight on his opinion.
FAE and Work Demands Analysis
26The respondent submitted the functional abilities evaluation and work demands analysis completed by Dr. Kominek, chiropractor, dated November 1, 2016. Dr. Kominek reviewed the essential tasks of the applicant’s job at Telus. The reports found that the applicant demonstrated the capacity to perform work activities at a light physical demand level. While Dr. Kominek comments on the applicant’s physical abilities to do the essential tasks of her job the reports fails to address the customer service element, which in my view is an essential task of the applicant’s employment. In addition, Dr. Kominek did not give any evidence at the hearing. For these reasons, I give his reports less weight.
Psychological IE
27Dr. Rakesh Ratti’s psychological IE dated November 1, 2016 consisted of a clinical interview, document review and the administration of psychological tests. Dr. Ratti found that based on the applicant’s presentation and her response to testing that his report is a credible valid representation of the applicant’s functioning at the time of the assessment.
28Dr. Ratti diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia, Situational Type (driving anxiety). Further, he confirmed his diagnosis was a direct result of the injuries sustained in the accident.
29However, Dr. Ratti found no evidence that the applicant’s psychological condition resulted in any functional limitations. Dr. Ratti came to this conclusion because the applicant self-reported that she credited not working due to not being able to use her hand and arm which was necessary to do the job. Consequently, from a psychological perspective the applicant did not sustain a substantial inability to perform the essential tasks of her employment as a sales representative.
30Dr. Ratti testified that he assumed the applicant had chronic pain. However, he found there were no psychological barriers for the applicant to return to work as she attributed her inability to work to her arm. Dr. Ratti was asked if he had a discussion with the applicant about psychological issues that might prevent her from returning to work. He indicated that if she stated something he would have explored it but could not confirm whether he asked the question. In my view, this is an important question to ask as a patient may not offer it voluntarily. For this reason, I place less weight on his opinion.
31When Dr. Ratti was asked about whether someone suffering from depression might have difficulties with presenting good interpersonal skills and a positive attitude at work he indicated that one cannot assume there is a pervasive impact. I did not find Dr. Ratti’s testimony with respect to the applicant not having a substantial inability to perform the essential tasks of her employment from a psychological perspective consistent with his diagnosis, the results of the psychological tests and the contents of his report.
32One essential task of the applicant’s employment which I felt was overlooked by Dr. Ratti was with respect to “constant verbal communication with customers.” The applicant and her supervisor gave oral evidence that one of the most important aspects of being a sales representative is to give excellent customer service which requires energy, motivation and a positive attitude.
33The applicant testified that she worked approximately fifteen to twenty hours a week, and would deal with up to twenty customers a day, spending fifteen minutes or more with each customer educating them and upselling products. Sales representatives had quotas they were required to meet. The applicant was expected to sell five to ten phones and $200-$500 worth of merchandise a week. I disagree with Dr. Ratti that someone suffering from anxiety, depression and chronic pain would be able to provide that level of customer service. I am of the view that this essential task should have been explored by Dr. Ratti in his assessment. Therefore, I have placed less weight on his report for his failure to do so.
34In contrast, Dr. Brown testified that one must have an appreciation for what the applicant did as far as her social interaction and customer service skills in such a busy and demanding environment. I agree with Dr. Brown and accept his finding that the applicant’s physical and emotional injuries created barriers to her doing her job consistently and doing it well.
Diamond Bar and Grill and Surveillance Evidence
35The applicant testified that in August 2017, she started helping out at Diamond Bar and Grill, a restaurant owned by her stepmother. She indicated that she did not get paid and would help occasionally with the cash register, bar tending and clean up. She claimed that when she would help it would not be all day and she would take numerous breaks as she experienced a lot of muscle tension. She never worked alone and started to help more often in September 2017 to be social and feel productive. The applicant testified that she wants to work and get out of the house even though it is challenging for her physically and psychologically.
36The respondent submitted video surveillance evidence which showed the applicant driving and running various errands over the course of four days in June 2017 and four days in September 2017. At the hearing, it produced a video of the applicant serving a patron coffee at the Diamond Bar and Grill restaurant on September 6, 2017. The video depicts the applicant operating a coffee machine and a cash register. Another surveillance video taken on September 9, 2017 shows the applicant going to the beer store and loading a trolley of five or more cases of beer into the trunk of her car and then unloading them from her trunk and delivering them to the restaurant.
37The private investigator with Intrepid Investigations testified that he conducted surveillance of the applicant over an eight day period. In total, he performed fifty six hours of surveillance. He confirmed that out of the fifty six hours of surveillance the applicant is seen on camera for less than one hour. These statistics are confirmed in his investigative report. I did not find this brief snapshot of the applicant’s post-accident activities disproves that the applicant does not suffer a substantial inability to complete the essential tasks of her employment.
38Dr. Brown confirmed that he reviewed the surveillance and it did not change his opinion. He indicated that the applicant’s behavior was slow and her facial expressions were sad in the video footage. The speed in which she moved did not look like a 30 year old that was happy or physically fit. I agree with Dr. Brown.
39In response to surveillance the applicant testified that her stepmother had been arrested by Immigration authorities, which is why she needed to help out at the restaurant. She was the only person available to go to the beer store and she experienced pain afterwards. To corroborate her evidence the applicant submitted an Order of Detention and Notice to Appeal issued by the Immigration and Refugee Board of Canada dated September 18, 2017.
40When asked why she was able to do these activities at the Diamond Bar & Grill but not Telus the applicant said she helped out sporadically, was able to take breaks as often as she liked and there was a cot in the basement where she could rest. She was not expected to provide the same level of customer service as she would only speak with customers when her stepmother was not there. I found the applicant to be a credible witness and I accept her explanation. Therefore, I have placed little weight on the surveillance video.
41For the above-noted reasons, I find that based on a balance of probabilities the applicant has a substantial inability to complete the essential tasks of her employment as a sales representative with Telus.
Is the applicant entitled to the chronic pain assessment recommended by Dr. Brown?
42Section 15(1) of the Schedule provides that the insurer shall pay for “all reasonable and necessary” expenses incurred as a result of an accident.
43Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. However, Section 25(1)5 provides that an insurer shall not pay more than $2,000.00 for conducting any one assessment.
44The respondent maintains that that the assessment does not relate to any goods or services which may be payable by the insurer as there is no treatment plan at issue for chronic pain treatment. The respondent did not provide any evidence that this assessment is not reasonable other than providing their legal position. The applicant argues that she suffers from chronic pain and a multi-disciplinary chronic pain assessment is required to determine an appropriate course of treatment.
45Dr. Brown recommended a neurological and psychiatric assessment and a chronic pain program including physiotherapy, supervised exercise and behavioural therapy. He recommended she be enrolled in a multidisciplinary program to improve her control over the emotional behavior, cognitive and sensory experiences associated with chronic pain syndrome. He also recommended the chronic pain assessment in the amount of $2,486.00 in order to have the applicant assessed by the various treatment providers to determine an appropriate course of action to treat her chronic pain.
46Since I have accepted Dr. Brown’s diagnosis that the applicant suffers from chronic pain I agree that this assessment is reasonably required to determine how to treat the applicant’s chronic pain from a multi-disciplinary perspective. Therefore, I find that the assessment is reasonable and necessary in the amount of $2,000.00.
CONCLUSION:
1The applicant is entitled to receive a weekly IRB in the amount of $290.50 per week, from February 5, 2017 to date and ongoing, less any post-accident income;
2The applicant is entitled to an examination expense in the amount of $2,000.00 for a chronic pain assessment, recommended by Dr. Steven Brown denied by the respondent on July 25, 2017; and
3The applicant is entitled to interest on the overdue amounts for the income replacement benefit.
4The applicant is not entitled to interest on the examination expense as it has not been incurred.
Released: December 11, 2017
___________________________
Rebecca Hines, Adjudicator
Footnotes
- Exhibit 2:Applicant’s Document Brief – Vol 2: Job Overview of Retail Sales Representative with Telus, dated February 2014
- Both Dr. Brown and Dr. Abuzguya explained that the Spurling test is a medical maneuver used to assess nerve root pain. The examiner turns the patient's head to the affected side while extending and applying downward pressure to the top of the patient's head. A positive Spurling's test is when pain arises from the neck in the direction that the head is turned.