Tribunal File Number: 17-004228/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:

M.F.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Applicant: Lawrence A. Berg, Counsel

For the Respondent: Sharla Bandoquillo, Counsel

Heard in writing: March 7, 2018

OVERVIEW

1On January 3, 2017, the 61 year old applicant, M.F., was involved in a motor vehicle accident and sustained injuries.

2The applicant applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent Aviva initially paid an income replacement benefit (“IRB”) from January 10, 2017 to August 10, 2017, but ceased payment thereafter.

3The applicant disputed this decision, and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

4A written hearing was scheduled, and a review of the evidence and submissions forms the basis for the decision.

ISSUES IN DISPUTE

5The following issues are in dispute:

(a) Is the applicant entitled to a weekly income replacement benefit in the amount of $336.45 for the period of August 11, 2017, to date and ongoing?¹

(b) Is the applicant entitled to interest for the overdue payment of benefits?

RESULT

6The applicant is entitled to a weekly income replacement benefit in the amount of $336.45 for the period August 11, 2017, to date and ongoing, in accordance with the Schedule. The applicant has established that she is substantially unable to complete the essential tasks of her pre-accident employment.

7The applicant is entitled to interest.

PRELIMINARY ISSUE

8The respondent notes that contrary to the Order of the Tribunal dated November 29, 2017, the applicant submitted her initial submissions four days late and her reply materials three days late, and as such, they should not be considered at the hearing. By way of explanation, the applicant states that by letter dated March 1, 2018, the Tribunal and counsel for the respondent were advised that the applicant’s representative’s office was short staffed, and would file the reply by March 5, 2018, rather than March 2, 2018, as required. The applicant advises that two employees were ill for the better part of the week.

9The respondent further states that contrary to Rule 9.2 (Mandatory Disclosure) of the LAT Rules of Practice and Procedure, the Order of the Tribunal dated November 29, 2017, and the Notice of Hearing dated January 22, 2018, the applicant failed to disclose the updated clinical notes and records of Dr. Andrew Shaul, psychologist, totalling about 15 pages, before December 7, 2017 as agreed upon, or by February 6, 2018, which is 10 days before the applicant’s initial submissions were due. The applicant counters by advising that her representative had little control with respect to obtaining the up-to-date clinical notes and records of the various treating physicians, and that as soon as that documentation was received, it was immediately provided to counsel. Furthermore, that to penalize the applicant with respect to the production of Dr. Shaul’s updated medical records, through no fault of her representative, would be inappropriate.

10I agree with the applicant. I have considered the applicant’s initial submissions and reply materials even though they were each several days late. I have also reviewed and considered the 15 pages of the updated clinical notes and records of Dr. Shaul. The prejudice to the applicant in not considering any of her submissions would be too great, in comparison to the minimal prejudice to the respondent in this regard.

DISCUSSION

A. Eligibility to Receive Income Replacement Benefits

11Based upon the evidence before me, I find that the applicant has met the eligibility test for income replacement benefits (“IRB”). To be entitled to an IRB under ss. 5(1)2 of the Schedule, the applicant must establish on a balance of probabilities that, as a result of the accident, she suffered an impairment that renders her substantially unable to complete the essential tasks of her employment as a sales person/consultant at [furniture store] (“[furniture store]”). The burden is on the applicant, and she has met her burden.

12For purposes of the analysis, I will divide the inquiry into three steps:

i. Was the applicant employed at the time of the accident;

ii. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment; and

iii. Causation

i. Employment at the time of the accident

13It is undisputed that the applicant was employed full-time at the time of the accident as a furniture salesperson/consultant for [furniture store]. She worked in this capacity for about eight months prior to the accident.

ii. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?

14To answer the question, I must first determine the essential tasks of the applicant’s employment; and second, whether the applicant is substantially unable to perform those essential tasks of her employment.

(a) The essential tasks of the applicant’s employment

15In its submissions, the respondent includes a broad job description for a sales person/consultant provided by the applicant’s employer, [furniture store]. The duties and responsibilities are listed as follows:

a. Responsible for the customer shopping experience from the time they enter until they leave the store.

b. Remain current with product knowledge.

c. Check floor at the beginning of each shift to be familiar with any display changes.

d. Understand all features and benefits of products we sell.

e. Fully functional on Anzio computer system as it relates to information regarding in-stock position, estimated arrival of new product to our warehouse, pricing, and option availability.

f. Monitor and respond (when required) to company email at least twice every shift.

g. Consistently use [furniture store].com. [website], A.S.A.P etc., and all manufacturer’s websites.

h. Use iPad as an integral part of the sales process.

i. Follow-up of every sale to thank customers.

j. Responsible to keep a designated area of the retail floor well presented, neat, dusted, cleaned, vacuumed and fluffed.

k. Follow the guidelines set out in the sales rotation system.

l. Carefully write up and review sales bill with customer.

m. Apply the sales concepts of the A, B, Z’s of the [furniture store] Selling process.

n. Follow policy on store operations relative to daily routines, performance statistics and miscellaneous paperwork procedures.

o. Comply with employee regulations and benefits as per Employee Handbook.

p. Other duties as assigned.

16In her submissions, the applicant relies upon the September 22, 2017 Functional Abilities Evaluation (the “FAE”), conducted by physiotherapist Dennis Polygenis, where the applicant’s job demands are listed as:

a. Assisting customers with purchasing furniture.

b. Demonstrating chairs to customers, which involves lifting and tilting recliners over to show the components underneath, and which involved exerting force up to 40-50 lbs.

c. Prolonged standing and walking.

17The FAE report further states that the applicant’s description of her job demands and the National Occupational Classification indicate that the applicant’s sales position is within the medium strength category (pulling, pushing, lifting and/or moving objects between 10 to 20 kgs.), or the medium physical demand characteristic (exerting 21 to 50 lbs. of force occasionally and/or 11 to 25 lbs. of force frequently, and/or up to 10 lbs. of force constantly).

18The description of the applicant’s duties and responsibilities as listed in the job description provided by the respondent are broad, but nonetheless, consistent with those set forth in the FAE. Both descriptions demonstrate and outline what is required of a furniture sales person/consultant. However, I find as fact that the essential tasks of the applicant’s employment as a furniture sales person are those more narrowly defined in the FAE. I find the essential task are: assisting customers with purchasing furniture; demonstrating chairs to customers, which involves lifting and titling recliners over to show the components underneath (and which involved exerting force up to 40 to 50 lbs); and prolonged standing and walking.

(b) Is the applicant substantially unable to perform the essential tasks of her employment as a sales person at [furniture store]?

19The applicant has established on a balance of the probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment at [furniture store]. I will summarize the evidence below.

20The applicant asserts that due to her physical and psychological impairments she is substantially unable to perform the essential tasks of her employment as a sales person. She relies upon the medical report of Dr. Jason Su, sports and musculoskeletal medicine specialist, dated August 18, 2017, who diagnoses the applicant with: cervical spine multi-level spondylosis with L>R foraminal narrowing especially at C6/C7 and C7/T1 segments; lumbar spine multi-level spondylosis most prominent at L4 to S1 causing central stenosis L4/5, foraminal narrowing BIL effecting BIL L4/L5 and R S1 nerve roots; bilateral carpal tunnel syndrome; and left shoulder impingement with likely underlying degenerative changes and rotator cuff pathology +/- tear(s). Essentially, degenerative conditions due to boney and/or disc degeneration, the narrowing of the spinal canal affecting nerve roots, and various degrees of tears on the left shoulder rotator cuff.

21Dr. Su further notes that the applicant is experiencing pain symptoms. The applicant advised Dr. Su that prolonged standing, sitting or even driving triggers the pain in her neck, back and left shoulder. She reports that after treatment it feels better for a couple of hours. Dr. Su advises that the applicant appears to have underlying degenerative pathology(ies) which were triggered to become symptomatic after the accident. He notes that her physical condition affects her job and everyday function. He notes that she appears to have had minimal and temporary response to conservative management thus far.

22The applicant also provides the January 2 and 23, 2018 reports of Dr. Alfonse Marchie, physiatrist, wherein he diagnosed the applicant with thoracic and lumbar strain and sprain, left rotator cuff pathology left AC joint pathology, left biceps tendinopathy, left medical epicondylitis, and possible left carpal tunnel syndrome. He notes that the applicant suffers constant pain localized in the posterior neck, left shoulder and lower back, and there is associated night pain. Prolonged sitting, standing and neck movements exacerbates the symptoms. He notes that the symptoms appear to be more severe as the day progresses. Testing showed that the applicant displayed decreased range for lumbar flexion/extension/rotation/lateral production secondary to pain localized on her lower back. He further noted decreased range for left shoulder flexion. Dr. Marchie also provided a steroid injection to the applicant’s left shoulder to ease her pain symptoms.

23From a psychological perspective, the applicant relies upon the reports of Dr. Adeyemi Egbewunmi, psychiatrist, dated October 6, 2017 and December 14, 2017, who diagnosed the applicant with adjustment disorder with depressive and anxiety symptoms due to chronic pain and life stressors. He notes her past history with anxiety and depression which started in 2009, following her separation from her husband, but intensified after the motor vehicle accident. He notes that she was doing relatively well after the initial episodes of anxiety and depression, and even began working at [furniture store]. He states that since the accident she has suffered from neck, hand and shoulder pain, and is “now scared of going back to work as she thinks she would not be able to cope.”

24Dr. Egbewunmi further notes that the applicant’s mood is low most of the time, and she is quite emotional with low motivation and low energy. Her standing and sitting are limited to a few minutes up to 10 to 20 minutes. She is experiencing a lot of anxiety with worrying thoughts. He notes that she has been diagnosed with fibromyalgia pain, and that she would need ongoing treatment for her depression and anxiety for a lengthy period of time.

25In further support of her psychological impairments, the clinical notes and records of the applicant’s treating psychologist, Dr. Andrew Shaul are provided. The notes indicate that, since the accident, the applicant is experiencing feelings of anxiousness and sadness.

26The applicant also relies upon the FAE which notes that the applicant returned to work one week following the accident, and then stopped due to her symptoms. The FAE notes that her functional ability can be classified as light physical demand characteristic, and that she did not satisfy the essential load and frequency requirements of her pre-accident job demands. The FAE notes shortfalls in lifting, carrying, pulling, standing, walking and stooping. The applicant was unable to complete tests for crouching, kneeling and left overhead reach due to reported symptoms. The assessor recommends that she continue with her present rehabilitation program to increase strength and function.

27Lastly, in her reply materials the applicant provided diagnostic imaging. First, a MRI of her cervical spine dated March 8, 2017, which found that there are diffused mild to moderate degenerative changes, and in particular, at the C7-T1 level there is significant left foraminal narrowing impinging the exiting left C8 nerve root. Second, an MRI of her lumbar spine dated March 14, 2017, confirming multilevel degenerative changes most pronounced from L4-S1, prominent central stenosis at L4/5, and suspect tiny left renal cyst. Third, an ultrasound of both shoulders dated February 15, 2017, showing calcific tendinosis in both supraspinatus tendons with partial thickness tear on the right, and mild degenerative change in the left AC joint. The objective medical evidence establishes that there are underlying causes to the pain that the applicant is experiencing.

28By contrast, the respondent states that at the time the IRB was stopped on August 10, 2017, the applicant was demonstrating normal function or mild restrictions, and reporting that her pain level had significantly reduced. The respondent relies upon Dr. Esmat Dessouki, orthopaedic surgeon, who in a report dated July 10, 2017, diagnosed the applicant with cervical, thoracic, lumbosacral and left shoulder strain. Dr. Dessouki found that a physical examination revealed that the applicant had a functional range of motion of her cervical spine, both shoulders and her lumbar spine. He noted that from a musculoskeletal perspective, and based upon examination, she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

29The respondent also relies upon the July 7, 2017 report of Dr. Zubina Ladak, psychologist, who diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood of mild severity. Dr. Ladak conducted a Beck Anxiety Inventory which revealed a mild level of anxiety. The respondent points to a similar finding of mild level of anxiety by the section 25 therapist, Ms. Maryam Tavakoli in her and Dr. Shaul’s report of May 17, 2017. I note that Ms. Tavakoli also noted that the applicant was suffering from symptoms of depression in the moderate range, and diagnosed the applicant with adjustment disorder, major depressive disorder, specific phobia (traveling with vehicle), and somatic symptom disorder with predominant pain.

30Dr. Ladak further notes that the applicant had returned to a significant number of pre-accident activities by August 10, 2017, when the respondent stopped payment of the IRB. He notes that she continues to do her own laundry and she sometimes cooks, cleans and occasionally goes grocery shopping. Dr. Ladak states that applicant’s mood is compromised, but that her current complaints and reported symptoms are not of a degree or nature that would preclude her return to work.

31The respondent also puts forth the report of physiotherapist Vincent Rip, dated November 27, 2017, for the assertion that the applicant confirmed that she is independent with self-care, and is able to load and unload the washer/dryer on her own.

32The respondent further relies upon the report of OHIP physiatrist, Dr. Dan Katz, on May 2, 2017 which states that upon physical examination of the applicant, she presented in no acute physical distress, her neck range of movement was moderately limited except in rotation, which was mildly limited and flexion, which was full. Her range of both shoulders were mildly limited except external rotation, which was almost full, and there was no wasting or deformity around her neck or shoulder area. Katz impression was that the applicant probably sustained myofascial strain/sprain of her cervical spine, bilateral shoulder girdles and lumbar regions. He notes that the clinical picture was compatible with bilateral lateral epicondrylitis. He further notes that she complains of numbness of both hands and wanted to rule out carpal tunnel syndrome. I note that Dr. Katz was not provided with the applicant’s MRI results at the time of his report, and he asks for them to be sent to him. I do not know if the MRI results were ever provided to Dr. Katz, or whether his impression of the applicant’s impairments changed upon review of those results.

33The respondent points out that during the applicant’s own FAE, one of the test performed upon the applicant was the Muscle Test Grading which revealed normal strength throughout as the applicant achieved the maximum grade of 5 defined as “complete range of motion against gravity with maximal resistance.” With regards to reporting her pain level to physiotherapist Polygenis, the applicant reported intermittent neck pain at 3/10, intermittent left shoulder pain with numbness through her left upper extremity at 3/10, and intermittent low back pain at 5/10. The respondent asserts that this demonstrates a significant reduction in pain level by the time the IRB was stopped. The respondent asserts that the applicant cannot claim that she is substantially prevented from performing her pre-accident employment tasks when her pain level is well below average.

34After considering all the evidence, I prefer the medical reports of the applicant’s experts, and in particular, those of Dr. Su, Dr. Marchie and Dr. Egbewunmi. I find that the reports of Dr. Su and Dr. Marchie are convincing in establishing her physical impairments. I am further persuaded by the FAE report which I find to be comprehensive and convincing with regards to the applicant’s abilities and restrictions. The FAE notes that the applicant does not meet the load and frequency requirements of her pre-accident job demands, specifically shortfalls exist in lifting, carrying, pulling, standing, walking and stooping. The applicant submits, convincingly, that the applicant is simply unable to meet the physical demands of her pre-accident job, namely prolonged walking, standing and demonstrating furniture.

35Dr. Su sets out the pain symptoms that the applicant is experiencing in her neck, back and left shoulder when sitting or standing for prolonged period. He points to the underlying degenerative pathologies which were triggered by the accident. He notes her degenerative conditions due to boney and/or disk degeneration, the narrowing of the spinal canal affecting nerve roots, and various degrees of tears on the left shoulder rotator cuff. I accept his conclusions as sound and find his report is convincing.

36I note that the reports of Dr. Marchie, dated after the date of the FAE, state that the applicant suffers constant pain in her neck, left shoulder and lower back which are exacerbated by prolonged sitting, standing and neck movements. Her pain becomes more severe as the day progresses. While I acknowledge the respondent’s argument that in the FAE the applicant’s pain level can be in some respects considered below average, given the underlying conditions of spondylosis in more than one level of the spine, it is convincing for the applicant to submit that she is experiencing pain that renders her substantially unable to perform the essential elements of her job.

37Furthermore, the diagnostic medical evidence, namely the MRIs of the cervical and lumbar spine, as well as the ultrasound of both shoulders, provides reliable and objective medical evidence of the underlying cause of the applicant’s pain.

38Lastly, from a psychological perspective, Dr. Egbewunmi makes clear that the applicant is scared to return to work because she feels she would not be able to cope. Her adjustment disorder with depressive and anxiety symptoms leave her experiencing anxiety and worrying thoughts. I note that the clinical notes and records of Dr. Shaul confirm the applicant’s feelings of anxiousness and sadness.

39The applicant is convincing in establishing that her physical impairments coupled with her psychological impairments, render her substantially unable to assist customers with purchasing furniture, demonstrating chairs to customers, and the prolonged standing and walking that is required to show customers the furniture that is available in the store.

40I find that the medical evidence establishes that the applicant is substantially unable to perform her pre-accident employment as a furniture sales person/consultant. The applicant has met her onus.

41Accordingly, the applicant has established on a balance of the probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment at [furniture store].

iii. Causation

42The applicant is entitled to an IRB only if the accident caused her to sustain an impairment that renders her unable to work as a furniture sales person, and the inability to work manifests within 104 weeks of the accident. The respondent correctly points out that the “but for” test applies. I find that the applicant has met her onus is establishing causation.

43There is no dispute that the applicant suffered from pre-existing conditions prior to the accident. However, the applicant asserts that the pre-existing conditions did not interfere with her ability to work at [furniture store] before the accident. The applicant submits that her pre-existing conditions were exacerbated by the accident, and relies upon Dr. Su, who notes that the applicant appears to have underlying degenerative pathology(ies) which were triggered to become symptomatic after the accident. He states that from a cause and effect standpoint, it is highly likely that the accident resulted in her current status. I see no reason to doubt this opinion, and find his reasoning sound.

44With regards to her psychological impairment, the applicant relies upon the report of Dr. Egbewunmi. He notes her past history with anxiety and depression starting in 2009, when separating from her husband, but notes that she was doing relatively good, and was even able to work at [furniture store]. He notes that her depression and anxiety intensified after the motor vehicle accident.

45I find that, prior to the accident, the applicant’s pre-existing physical and psychological conditions did not impede her ability to work at [furniture store] as evidenced by her eight-month work history at [furniture store]. The evidence before me establishes that the applicant’s pre-existing conditions were exacerbated by the accident, and that the accident caused her to sustain an impairment that renders her unable to work as a furniture sales person.

46Under the circumstances, I am persuaded that the motor vehicle accident is responsible for the impairment.

B. The Applicant’s Entitlement to Interest

47Section 51 of Schedule states:

51. (1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue.

48I find that interest is payable for the overdue payment of benefits in accordance with the Schedule.

CONCLUSION

49The applicant is entitled to a weekly income replacement benefit in the amount of $336.45 for the period August 11, 2017, to date and ongoing, in accordance with the Schedule.

50The applicant is entitled to interest.

Footnotes

1. 1I note that the Tribunal Order dated November 29, 2017, states that the applicant is seeking payment from July 31, 2017, to date and ongoing. However, the parties in their respective submissions agree that the income replacement benefit was paid by the respondent up to August 10, 2017, and that the applicant is seeking payment from August 11, 2017, to date and ongoing.