Tribunal File Number: 17-001931/AABS
Case Name: 17-001931 v Wawanesa Mutual Insurance Company
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:
C. P. Applicant
and
Wawanesa Mutual Insurance Company Respondent
DECISION
ADJUDICATOR: Ruth Gottfried
Appearances:
For the Applicant: Yasar Saffie, Counsel For the Respondent: Elizabeth Scott, Counsel
Hearing in Writing Only: September 7, 2017
BACKGROUND:
1The applicant was involved in an automobile accident on September 26, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the Schedule).
2The applicant applied for an income replacement benefit (IRB) in the amount of $400.00 weekly, which was paid by Wawanesa beginning October 4, 2016.
3On February 23, 2017 Wawanesa wrote to the applicant terminating the IRB as of February 27, 2017 based on Insurer Examinations (IEs) assessments performed by Deborah Westbrook, OT and Dr. Tansey, orthopaedic surgeon.
4During the week of February 27, 2017, the applicant returned to work at her pre-accident workplace, but worked fewer hours per week for approximately the next month. The applicant disagreed with Wawanesa’s decision and seeks partial payment of IRB until March 26, 2017 to make up for the shortfall of her income while she was on modified hours.
5The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.
ISSUES:
6The following are the issues addressed at this Hearing:
a. Is the applicant entitled to an income replacement benefit in the amount of $400.00 weekly from February 27, 2017 to March 26, 2017, less income earned in that period?
b. Is the applicant entitled to interest on any overdue payment of benefits?
c. Is the respondent entitled to costs against the applicant?
RESULT:
7The applicant is not entitled to an income replacement benefit from February 27, 2017 to March 26, 2017.
8The applicant has claimed entitlement to an IRB from February 23, 2017. Although the letter denying the benefit was dated February 23, 2017, the effective date of the denial is February 27, 2017.
9If the applicant was not paid for the period up to the date of denial (February 27, 2017) then Wawanesa must pay the amount owed, plus interest pursuant to section 51 of the Schedule.
10Because, other than as listed under (9) above, I have determined that no IRB benefit is payable after February 27, 2017, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
11The respondent is not entitled to costs against the applicant.
ANALYSIS
Substantial Inability Test
12The eligibility criteria (commonly referred to as the substantial inability test) for receiving income replacement benefits within the first 104 weeks is found in section 5(1)(i) of the Schedule.2
13The parties are in agreement that the applicant sustained injuries as a result of the accident.
14Prior to the accident, the applicant worked full-time at a bakery as a cashier. According to a note dated April 15, 2017 from her family doctor, Dr. W. B. Soutar, the primary diagnosis of her injuries is: myofascial cervical, thoracic, and lumbar strain. This injury has likely exacerbated significant pre-existing cervical, thoracic, and lumbar osteoarthritis and degenerative disc disease with thoracic scoliosis.
15Dr. Soutar went on to say that at the time of his note, the applicant’s issues had become chronic. He also stated that the applicant’s job involved constant standing and carrying and that “I told her to stop work”.
16The applicant submits that she was unable to work for many months due to her injuries and she attended physiotherapy.
17In January 2017, the applicant attended multidisciplinary IE assessments arranged by Wawanesa. On January 25, 2017, she attended a Functional Abilities Evaluation (FAE) and a hypothetical job site analysis with Deborah Westbrook, a physiotherapist. On January 31, 2017, the applicant attended an orthopaedic assessment with Dr. Patrick Tansey, an orthopaedic surgeon.
18Before determining whether the applicant suffers a substantial or complete inability, I must first address what were the essential tasks of the applicant’s employment.
19The applicant provided a job description during her FAE assessment. She stated that she primarily worked as a cashier. The cashier would also make coffee, heat food and oversee the hot table. During non-busy hours, there would be two staff members at the cash/hot table area. During the busier lunch hour, there would be four staff: two at the cash and two serving food from the hot table and making sandwiches.
20She confirmed that 75% of her work was at the cash register. She would start her shift by counting the money in the cash register till, making Canadian coffee in a thermos and stocking cups and condiments. She would then receive customers at the cash register, which is computerized, take payment and bag their purchases. She might heat a slice of pizza or a sandwich. During the non-busy times, she would pour coffee or make espresso. She might also restock cups at the coffee area. The cash, hot table and coffee area are in the centre of the bakery. The applicant was not required to serve at the deli or bakery areas or to work in the kitchen or bakery areas.
21Ms. Westbrook’s report did not identify any impairment during her evaluation. She identified that the applicant’s pre-accident job as a cashier was classified at the light level of physical demands and her opinion was that the applicant was not substantially disabled from performing the essential tasks of her pre-accident employment.
22Dr. Tansey’s report noted that the applicant sustained uncomplicated myofascial strain-type injuries to her neck and back in the accident and demonstrated a full range of motion with some end-range pain but no specific discernable areas of weakness and no neurological abnormality. He concluded that the applicant did not have an impairment as a result of the accident.
23Both assessors found that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and was capable of returning to her pre-accident employment on a full-time, full-duties basis.
24During her assessment with Ms. Westbrook, the applicant identified the barrier to returning to work as the number of hours required to stand/walk. At the time of the assessment, the applicant stated that she did not know if modified hours would be available to her on her return to work.
25Based on the above assessments, Wawanesa denied the continuation of IRB and advised the applicant by letter and Explanation of Benefits dated February 23, 2017 that she would no longer be entitled to an IRB after February 27, 2017.
26The applicant provided additional documentation to the assessors, however Dr. Tansey advised that his position remained unchanged.
27Dr. Tansey reviewed the clinical records of Dr. Soutar, including x-rays from 2012 and immediately post-accident. He concluded that the x-rays showed “degenerative changes…not related to the subject accident”.
28He also reviewed treatment plans submitted by the treating chiropractor, Dr. T. Damaso, which Dr.Tansey states did “not contain any new clinical information regarding [the applicant’s] accident injuries”.
29The applicant did not submit any evidence from an orthopaedic specialist that refuted Dr. Tansey’s opinions and I find them persuasive.
30Wawanesa advised the applicant of same in correspondence dated April 28, 2017.
31I believe that the applicant was open and forthcoming in her evidence and in her concerns that her employer might not provide modified hours for her when she returned to work. I also commend her for her immediate efforts to return to work as soon as Wawanesa made their decision to terminate IRBs.
32However, it is clear from the paystubs submitted, that the applicant’s employer was willing to provide modified hours. Under Part X of the Schedule, the applicant must make reasonable efforts to return to employment. I believe that she should have consulted with her employer and considered the availability of modified work before Wawanesa’s denial. No evidence was submitted to indicate that she had determined her employer’s position on that.
33I also give more weight to Dr. Tansey’s report and the assessment by Ms. Westbrook than to the family doctor’s records. Both indicate that the applicant did not suffer an impairment that would prevent her from returning to work and performing her duties on a full time basis.
34In contrast, Dr. Soutar’s medical note indicates that the applicant’s symptoms are “…still totally disabling for her previous work…”. He also indicates that the applicant “tried to return to work for two days in early March, but had to stop due to increased pain in her back and neck.” Although the note was dated April 15, 2017 and the doctor indicates he saw the applicant in January, February and twice in March, 2017, he clearly does not know that by the date of the note she had returned to work full time.
Applicant’s return to work
35The effective termination date of the IRB was February 27, 2017. The applicant had been off work for approximately five months. She returned on part-time hours for one month and then to a full complement of work hours.
36The applicant has requested that Wawanesa pay her for the “short fall” of income once she returned to work. If an applicant is still receiving an IRB, then the insurer is obligated to deduct 70% of the post-accident income and pay the difference to the claimant.
37Under section 11 of the Schedule the applicant could have attempted a return to work and if she could not work full time then her benefits would not have been affected except for the deduction of income earned.
38Unfortunately, the applicant was no longer receiving an IRB when she returned to work – the benefit had been denied based on the IE assessments. As stated above, I did not give a great deal of weight to the family doctor’s argument that the applicant was unable to return to full time work as she already had.
39The applicant made submissions with regard to chronic pain and whether or not her injuries were properly categorized within the Minor Injury Guideline (MIG). She has also raised the legal principle of the “thin skull rule,” arguing that the applicant’s general health and conditioning predispose her to never reaching full recovery from the accident. She also submitted a report from her family doctor supporting the reality of her underlying poor physical condition, which in his opinion is the primary reason that her prognosis for recovery is so poor.
40However, the issue of whether the applicant is within the MIG is not before me. Her underlying poor physical condition, which has been chronic and long preceded the accident, is not determinative of her continuing to receive an IRB. The issue here is only whether or not the applicant could substantially perform her pre-accident employment tasks.
41Based on the above, I conclude that the applicant has not met her onus in establishing that as of February 27, 2017 she suffered a substantial inability to perform the essential tasks of her employment. She is not entitled to an IRB from February 27, 2017 to March 26, 2017.
42As no benefit is payable, the applicant is not entitled to interest pursuant to s.51 of the Schedule.
COSTS:
43The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for costs to be awarded when a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for a cost request, which must include the reasons for the request and the particulars of the alleged conduct.
44In this case, costs are not warranted. I note that the respondent has not set out the reasons for the request or the particulars of the applicant’s conduct which would attract a cost award as required by Rule 19. Since there is no basis or evidence of conduct that is unreasonable, frivolous, vexatious, or in bad faith before me, no costs will be awarded.
ORDER:
45Pursuant to the authority vested in it under the provisions of the Insurance Act, the Tribunal directs that:
a. The applicant is not entitled to an income replacement benefit from February 27, 2017 to March 26, 2017.
b. If the applicant was not paid for the period up to the date of denial (February 27, 2017) then Wawanesa must pay the amount owed, plus interest pursuant to section 51 of the Schedule.
c. Because, other than as listed under (b) above, I have determined that no income replacement benefit is payable after February 27, 2017, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
d. The respondent is not entitled to costs against the applicant.
Released: January 29, 2018
Ruth Gottfried, Adjudicator
Footnotes
- O. Reg. 34/10.
- The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.