Tribunal File Number: 16-004619/AABS
Case Name: 16-004619 v State Farm 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
Applicant
and
State Farm Insurance
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
For the Applicant: Malcolm Zoraik, Counsel
For the Respondent: Jocelyn Tatebe, Counsel
HEARD: July 20, 2017
Overview
1The applicant was born in Lebanon and came to Canada when she was 2 years old. She attended college in Ottawa and obtained a certificate in Early Childhood Education. She is fluent in both English and French. At the time of the accident, she was 23 years old and employed at the New Middle Eastern Market as a cashier supervisor. Her employment activities included standing for extended periods of time (up to 7 hours per day), lifting heavy boxes (up to 20 pounds), shelving merchandise and serving customers.
2The applicant was involved in a motor vehicle accident on October 11, 2013. She suffered injuries to her left shoulder, neck and lower back. These injuries prevented her from returning to her place of employment and as a result, she began receiving an income replacement benefit on January 3, 2014. The applicant continued to receive the income replacement benefit until March 24, 2016, which is more than 104 weeks from the date of the accident. The benefit was then terminated by way of an OCF-9 dated March 24, 2016, based on the findings of various s.44 reports.
3The applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act, RSO 1990 c I.8 dated December 9, 2016. The applicant seeks a determination from the Licence Appeal Tribunal that she is entitled to an income replacement benefit in the amount of $336.00 per week from March 24, 2016 to present and ongoing. The applicant submits that she is entitled to the income replacement benefit as she is psychologically and physically incapable of engaging in any employment for which she is reasonably suited by education, training or experience.
Result
4The applicant has failed to demonstrate that, as a result of the accident, she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. As a result, she is not entitled to an income replacement benefit in the amount of $336.00 per week from March 24, 2016 to present and ongoing. No interest is payable.
Discussion
5The applicant bears the onus of establishing, on a balance of probabilities, that she is entitled to the income replacement benefit in dispute. The test for entitlement to an income replacement benefit 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, she has a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
6The applicant asserts that she has met her onus based on her psychological and physical impairments. She relies upon Dr. Shaul’s psychological report dated November 3, 2016, the Disability Certificate dated April 15, 2016, and the Medical Certificate of Dr. Kelly (family physician) dated January 16, 2017, and the MRI dated March 28, 2014 in support of her claim.
Psychological Impairment
7On October 28, 2016, the applicant was assessed by Ms. Ilios (psychotherapist) who was working under the supervision of Dr. Shaul. The assessment included a clinical interview and the administration of three psychological self-report questionnaires. The applicant was first administered the Beck Depression Inventory – II which is designed to measure the degree of depression that she was experiencing. The applicant’s score indicated that she suffers from symptoms of depression in the Mild to Moderate range.
8The applicant was next administered the Beck Anxiety Inventory which is designed to measure the level of anxiety that she was experiencing. Her score indicated that she is experiencing a moderate level of anxiety.
9The applicant was then administered the Symptom Checklist 90 Revised which is a 90 item questionnaire designed to assess a wide range of psychological and physical symptoms including emotional distress from pain. The applicant endorsed her headaches and pain in her lower back as extremely distressing.
10Based on these test scores, Dr. Shaul concluded that since the accident, the applicant has been experiencing emotional distress mostly in the form of symptoms of anxiety and somatic pain. He diagnosed the applicant with Adjustment Disorder with Anxiety and Specific Phobia (Driving a Vehicle). Dr. Shaul then concluded that from a psychological and emotional standpoint, the applicant cannot return to work as a cashier supervisor or any other job for which she is reasonably suited by education, training or experience.
11The respondent submits that Dr. Shaul’s report should be given little weight for the following reasons. Firstly, the report is based entirely on the applicant’s self-reports with little or no corroborating objective medical evidence. Secondly, Dr. Shaul’s conclusion that the applicant is incapable of engaging in any employment for which she is reasonably suited by education, training or experience should have been supported by some vocational evidence that takes into account the applicant’s educational background, skills and employment experience in relation to the job market. There is no indication that Dr. Shaul did this in this case. Thirdly, Dr. Shaul’s report fails to identify what medical documentation, if any, he or Ms. Ilios reviewed. Finally, the respondent submits that the conclusion that the applicant’s presentation is consistent with Adjustment Disorder with Anxiety and Specific Phobia (Driving a Vehicle) is not consistent with the records of Dr. Kelly, the applicant’s family physician. The records of Dr. Kelly do not contain any accident related psychological complaints. Furthermore, there are no records or reports from any treating psychologist or psychiatrist in support of this conclusion.
12Dr. Shaul’s failure to consider vocational evidence that takes into account the applicants educational background, skills and employment experience in relation to the job market is my primary concern. Without doing so, I find it difficult to assess the reasonableness and soundness of Dr. Shaul’s conclusion. As a result, Dr. Shaul’s report does not compel me to conclude that from a psychological and emotional standpoint, the applicant suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. The applicant has not met her onus in this regard.
13My finding is supported by Dr. Suddahy, psychiatrist, who met with the applicant on January 5, 2017, in order to conduct a psychiatric evaluation for the respondent. A paper review was also completed on January 20, 2017. Based on his assessment and paper review, Dr. Suddahy opined that from a purely psychiatric perspective, the applicant has no diagnosis or impairment.
Physical Impairments
14The applicant testified that she is suffering from chronic lower back pain with radiating numbness in her legs. She directs me to the Medical Certificate of Dr. Kelly dated January 16, 2017, and the MRI dated March 28, 2014 in support of her claim. She also testified that her chronic lower back pain prevents her from remaining in a standing position for more than 20 minutes and a sitting position for more than 30 minutes. She explained that lying down and pain medication (Tylenol and/or Advil) provides her with some relief from the pain. She argues that all of the employment activities for which she is reasonably suited by education, training or experience will require prolonged standing or sitting and as a result, she has satisfied the complete inability test.
15The applicant also directs me to the Disability Certificate dated April 15, 2016 in support of her claim. The Disability Certificate was prepared by Dr. Hassanzadeh, the applicants treating chiropractor following the motor vehicle accident. The applicant submits that this Disability Certificate “clearly and convincingly” states that the applicant has a complete inability to engage in activities of normal life including employment.
16Dr. Kelly, the applicant’s family doctor, assessed the applicant on January 16, 2017 in relation to her chronic lower back pain. Following the assessment, Dr. Kelly prepared a Medical Certificate indicating that the applicant is having a worsening of her back pain and recommended aquafit classes.
17I was not persuaded by the evidence provided by the applicant. The MRI revealed no significant spinal canal or foramina stenosis at any level. Only a small disc protrusion is seen at the L5-S1 level. No nerve root impingement was found. The results of the MRI alone do not support the claim that the applicant meets the “post 104 test”.
18There is no report from Dr. Kelly which addresses the complete inability test and I have not been directed to any portion of her clinical notes and records which address this issue. Dr. Kelly’s certificate does not comment on how this pain factors into the applicant’s complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
19Also, the Disability Certificate I was directed to only speaks to the applicant’s entitlement to a non-earner benefit and does not address entitlement to an income replacement benefit. The Disability Certificate is also silent with respect to whether the applicant has a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. As a result, the Disability certificate provides very little insight into the applicant’s entitlement to the income replacement benefit in question.
20Based on the above, the applicant has not satisfied me, on a balance of probabilities, that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience based on her physical impairments. I acknowledge the applicant’s testimony with respect to the pain she experiences after continuous sitting or standing for prolonged periods of time, however, the applicant’s self-reports of pain are not sufficient enough to persuade me on a balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
21The respondent’s denial of the applicant’s entitlement to the income replacement benefit was based on multiple physical and psychiatric assessments. It was also based on a vocational assessment with a transferable skill analysis, functional abilities evaluation and labour market survey. I found this evidence to be compelling and gave it more weight than the applicant’s testimony because it was based on objective testing of the applicant’s functionality and identified jobs she is able to perform based on education, training and experience.
22Dr. Sreenivasan conducted a physiatrist examination for the respondent on March 4, 2016. He also completed a paper review on January 20, 2017. Based on his assessment and paper review, Dr. Sreenivasan opined that there were no objective orthopaedic or hard neurological signs to indicate a significant neurological, orthopaedic or functional impairment. As a result, Dr. Sreenivasan concluded that the applicant had reached maximum medical improvement and that she does not suffer from a complete inability to perform her pre-accident employment.
23Dr. Yip, physiotherapist, conducted a functional abilities evaluation assessment on February 5, 2016 in order to assess the applicants physical capabilities. In his report, Dr. Yip noted the functional abilities demonstrated by the applicant at the assessment. They include the ability to:
a. Engage in sitting at a frequent basis (for at least 30 minutes with no limitations).
b. Engage in standing at a constant basis (for at least 1 hour and 10 minutes with no limitations).
c. Lift from the waist to floor of 15 pounds on a frequent basis, 25 pounds on an occasional basis and 30 pounds on a rare basis.
d. Lift from waist to crown level of 10 pounds on a frequent basis, 15 pounds on an occasional basis and 20 pounds on a rare basis.
e. Perform bilateral carries of 10 ponds on a frequent basis, 20 pounds on an occasional basis and 30 pounds on a rare basis.
24Ms. Hasanic, occupational therapist, conducted a functional capacity evaluation assessment on April 8, 2014, in order to determine the applicant’s abilities and limitations with respect to the performance of work tasks. Ms. Hasanic found that the applicant demonstrated a workday tolerance, defined as the ability to participate in work activities over a given period of time, of continuous (5 ½ - 8 hours daily). With respect to weighted tasks, the applicant demonstrated the ability to tolerate work activities at the sedentary work level characterized by exerting up to 10 pounds of force occasionally as well as some ability to work at the mid-range medium work level.
25The vocational assessment with transferable skill analysis was completed by Ms. Genereux. The purpose of the vocational assessment was to identify suitable employment options for the applicant based on her education, transferable skills, aptitude, training and experience. The purpose of the transferable skills analysis was to identify potential alternate occupations for which the applicant may be suited by education, training and experience and to reflect current functional abilities. Based on the vocational assessment with transferable skills analysis, the following occupations were identified as suitable for the applicant: general office clerk, productions clerk, purchasing clerk, collector and call centre agent.
26At the hearing, the applicant stated that she did not feel capable of returning to work within any of the identified occupations because they would require her to sit a lot and that would cause a lot of pain. Again, I accept that applicant experiences pain, however, I am not persuaded based on the totality of the evidence before me that she does not have a complete inability as articulated in s.6(2)(b) of the Schedule. On balance, I am satisfied that the sedentary nature of the occupations identified in Ms. Genereux’s report are suitable for the applicant based on her education, training and experience and that they reflect her current functional abilities.
27For the reasons noted above, the applicant’s appeal is dismissed.
Released: February 6, 2018
Paul Gosio, Adjudicator