LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: January 31, 2017 Tribunal File Number: 16-000722/AABS

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:

J. V. Applicant

and

Wawanesa Mutual Insurance Corporation Respondent

DECISION

Adjudicator: Lan An

Appearances By: For the Applicant: Rachel Levitski, Counsel For the Respondent: Louise Kanary, Counsel

Hearing via Teleconference on: October 24 and November 9, 2016

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, J. V., was injured in a motor vehicle accident on January 28, 2015. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

2Following the motor vehicle accident, the applicant applied for and received income replacement benefits for the periods of February 5, 2015 to March 22, 2015 and from January 5, 2016 to May 8, 2016.

3The respondent, Wawanesa Mutual Insurance Corporation, terminated the applicant’s income replacement benefit as of May 9, 2016. It takes the position that she no longer met the test for entitlement due to an Insurer’s Multi-Disciplinary Examination under section 44 of the Schedule.

4The applicant returned to work on September 13, 2016, on reduced hours (30 hours per week) and on modified duties (such as limiting pushing and pulling with both arms, limiting working at shoulder level, and having assistance with moving resident).

ISSUES TO BE DECIDED

5The following are the issues in dispute:

a. Is the applicant entitled to an income replacement benefit in the amount of $280.00 weekly for the period from May 9, 2016 to September 12, 2016?

b. Is the applicant entitled to interest for overdue payment of the income replacement benefit?

c. Is the applicant entitled to an award of costs?

RESULT

6I find on all of the evidence that the applicant is entitled to receive an income replacement benefit in the amount of $280.00 for the period from May 9, 2016 to September 12, 2016. I also find that the applicant is entitled to interest on the amount of income replacement benefits owing.

7I decline to order costs against the respondent.

ANALYSIS

8The applicant bears the burden of proving on a balance of probabilities that she is entitled to the income replacement benefit for the period from May 9, 2016 to September 12, 2016.

9The test for entitlement for an income replacement benefit is set out in s. 5(1) of the Schedule. In the applicant’s case, s. 5(1) provides that she is entitled to an income replacement benefit if, as a result of the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment as a personal support worker (“PSW”).

10At the time of the motor vehicle accident, the applicant was employed as a PSW at a long term care facility but was on a medical leave of absence from September 21, 2014 to March 21, 2015, as stated in the Employer’s Confirmation Form (OCF-2) dated January 20, 2016.

11Shortly after the accident, the applicant attempted to return to work on March 22, 2015, working 37.5 hours per week. Sometime in June 2015, she reduced her hours to 34 hours per week. By January 5, 2016, the applicant stopped working, and the respondent reinstated payment of income replacement benefits in the amount of $280.00 per week.

12As mentioned above, the applicant again returned to work on September 13, 2016 on reduced work hours (30 hours per week), and on modified duties (such as limiting pushing and pulling with both arms, limiting working at and above shoulder level, and having assistance with moving residents).

13To determine the applicant’s entitlement to the income replacement benefit, I must answer two questions. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of her employment?

(a) What are the essential tasks of the applicant’s employment?

14According to the Employer’s Confirmation form (OCF-2) dated March 27, 2015, the applicant’s employer described her job as “personal care” and her duties as assisting the residents with the activities of daily living, such as toilet transferring, and dressing.

15In the respondent’s Jobsite Assessment dated April 18, 2016, Mr. Perrier, an occupational therapist, stated that the applicant’s Co-Directors of Care identified the following tasks performed by the PSWs under their employ:

• Reviewing the report from charge nurse and the care list. At that time, it is [unclear] whether the PSW would be involved in single care (one PSW for one resident) or double care (two PSWs for one resident) resident tasks.
• Assisting residents with personal care tasks (bathing, grooming, changing briefs and dressing). The tubs must be cleaned with a disinfectant following each tub use. Each resident has 2 showers per week unless more are requested or required due to incontinence.
• Transporting people with mobility issues to the dining room.
• Serving food to residents. This consists of carrying at most 2 plates of food at a time to the tables.
• Serving beverages to residents. This consists of pushing the fluid cart and pouring beverages (i.e. coffee, tea, etc.).
• Feeding some of the residents that would require this assistance.
• Transporting people back to their rooms following meals.
• Assisting with toileting (i.e. taking residents to the bathroom, assisting with transfers, changing briefs).
• Delivering snacks to resident[s]. This consists of pushing the snack car to resident[s’] rooms, and helping with feeding snacks.
• Stripping and making beds, placing linen in linen bags, and taking linen bags to the chutes. Some soiled items must be rinsed in a hopper before being dropped down the laundry chute.
• Carrying brief bags to the garbage room which requires travelling in an elevator to the garbage room.
• Assisting with transfers/bed mobility as needed, notably if there is an incontinent episode and morning care.
• Retrieving supplies from the storage room to replenish the care cart and to retrieve boxes of briefs.
• Performing documentation. This is done at computer stations or on touch screens attached to the walls.

16The parties are in agreement, and I accept that the above list accurately describes the essential tasks of the applicant’s employment as a personal support worker.

(b) Is the applicant substantially unable to perform the essential tasks of her employment as a personal support worker?

17Before I can address the above question, I must first determine the applicant’s physical conditions as her ability to perform the essential tasks of her employment turns on her physical ability. While I have considered the psychological report of Dr. C. Vigna, I make my decision fundamentally on the applicant’s physical condition as the applicant’s employment as a personal support worker is physical in nature. This begs the question, what is her physical condition?

18The respondent’s expert witness, Dr. M. Devlin, a physiatrist, diagnosed the applicant with soft tissue injuries of the sprain and strain type while the respondent’s expert witness, Dr. R. Yufe, a neurologist, found that she had no neurological impairments.

19Dr. W. Potashner, the applicant’s rheumatologist, opines that the applicant should not return to work. He diagnosed her with pain syndrome in the cervical spine and the lumbar spine that preclude her from doing her duties as a PSW.

20In a Disability Certificate (OCF-3) dated March 24, 2015 and December 2, 2015, Dr. J. Salib, the applicant’s family physician, diagnosed the applicant with the following injuries and sequelae due to the motor vehicle accident:

• Cervical pain and strain
• Dorsal pain and strain
• Lumbar spine pain and strain
• Bilateral shoulders pain and strain
• Recurrent headache
• Sleep disorder

21It appears that both parties’ expert witnesses agree that the applicant’s physical conditions are, at the minimum, soft tissue injuries to the cervical spine and lumbar spine.

22I will now turn to discuss whether these injuries impair the applicant’s ability to perform the essential tasks of her employment.

23After carefully considering that the applicant has soft tissue injuries to her cervical spine and lumbar spine, I find that she would have difficulties performing many of the essential tasks of her employment. As mentioned above, some of her essential tasks require her to lift residents, and transfer them to and from their bed, the washroom and/or their wheelchair using a mechanical lift. These tasks would require her to actively engage her back, which is where her soft tissue injuries are.

24I note that in McLeod v. State Farm Mutual Automobile Insurance Company (FSCO A10-000755, May 25, 2012), which is not binding on me, but which I find persuasive, Arbitrator Richards determined that “the personal support worker job is very physically demanding.”

25With Arbitrator Richards’s statement in mind, I note that Ms. Westbrook, a physiotherapist, concluded that the applicant “demonstrated the physical abilities to complete work at least at the sedentary level of physical demands as defined by the Dictionary of Occupational Titles.”

26More importantly, I note that during her cross-examination, Ms. Westbrook acknowledged that the essential tasks of the applicant’s job as a personal support worker are not sedentary work.

27Ms. Westbrook also commented that the applicant was self-limiting on 16 out of 20 tasks used for the Evaluation, including all six of the dynamic strength tasks. She stated she was unable to reliably determine if the applicant is capable of sustaining work for an 8-hour work shift as she self-limited on all 3 of the endurance tasks. Despite the self-limiting behaviours, Ms. Westbrook states that she was still able to come to the conclusion that the applicant was capable of sedentary work.

28After considering all of the evidence, I find on a balance of probabilities that the applicant has established that she is substantially unable to perform the essential tasks of her employment. The substantial inability is evidenced by the necessity of the applicant’s reduced work hours since she returned to work, the less physically demanding work she now does, her inability to stand or sit for prolonged periods of time, the need for assistance to perform her lifting duties at work, her limited housekeeping work at home, and that she is working through chronic pain and headaches. Accordingly, she is entitled to an income replacement benefit for the period from May 9, 2016 to September 12, 2016 in the amount of $280.00 weekly plus interest.

Costs

29The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

30The applicant has asked for costs in this proceeding. However, the applicant has not alleged the other party’s conduct to be unreasonable, frivolous, vexatious, or in bad faith. The applicant has also not stated the reasons for the request or the particulars of the respondent’s alleged conduct. The applicant has failed to meet the requirements for a costs award in Rule 19. There is insufficient evidence of conduct by the respondent that is unreasonable, frivolous, vexatious, or in bad faith before me to make an order for costs in this matter.

Conclusion

31In light of the foregoing, I find that the applicant is entitled to income replacement benefits in the amount of $280.00 for the period from May 9, 2016 to September 12, 2016. She is also entitled to interest on the amounts owing.