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:
K.F.
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for the Applicant: Vicki Edgar
Counsel for the Respondent: Jennifer Chapman
HEARD: Written Hearing: August 20, 2018
OVERVIEW
1The applicant, K.F., was involved in a motor vehicle accident as a cyclist on September 10, 2015.
2Prior to the accident, the applicant was employed as a prep cook/dishwasher at a restaurant. The applicant lives with his common-law spouse and their young son. He was unable to return to his employment as a result of injuries sustained in the accident and applied to the respondent, Motor Vehicle Accident Claims Fund, for Income Replacement Benefits (“IRBs”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”).
3The respondent found the applicant was entitled to IRBs as of September 17, 2015. The applicant continued to receive IRBs until June 30, 2016, at which time the respondent determined that the applicant no longer suffered a substantial inability to perform the essential tasks of his employment and, on that basis, terminated IRBs. In response, the applicant brought this application.
ISSUES
4The issues in dispute are:
a) Is the applicant entitled to an income replacement benefit in the amount of
$245.95 weekly from June 30, 2016 to November 20, 2017?
b) Is the applicant entitled to interest in any overdue payment of benefits?
RESULT
5For reasons set out below, I find that the applicant is not entitled to the benefits claimed and, thus, no interest is payable.
ANALYSIS
Issue 1: Is the applicant entitled to an income replacement benefit in the amount of $245.95 weekly from June 30, 2016 to November 20, 2017?
6The test for entitlement to IRBs within the first 104 weeks after the accident is outlined in subsection 5(1) of the Schedule. Section 5(1) states that IRBs are payable to an insured person who 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. This test applies to the applicant for the period of June 30, 2016 to September 10, 2017.
7The test for entitlement to IRBs post-104 weeks after the accident is found in subsection 6(2) of the Schedule and states that the applicant must suffer “a complete inability to engage in any employment for which he or she is reasonably suited by education, training, or experience”. This test applies to the applicant for the period of September 10, 2017 to November 20, 2017.
Applicant’s Entitlement to IRBs for the period of June 30, 2016 to September 10, 2017
Medical Evidence on Record
8As noted above, the respondent paid the applicant IRBs for the period of September 17, 2015 until June 30, 2016. The respondent’s decision was based on a number of medical documents. These include, among others, hospital emergency records and diagnostic imaging records dated September 10, 2015. The applicant also provided two separate disability certificates (OCF-3) dated November 30, 2015 and December 22, 2015, respectively. The November 30, 2015 OCF-3 indicates that the applicant meets the test for pre-104 week IRBs and estimates the duration of the same to be three to four months, i.e., until March 30, 2016 at the latest. The December 22, 2015 certificate indicates that the applicant meets the applicable test for IRBs but provides no estimate of how long the applicant would continue to do so.
9By correspondence dated March 22, 2016, the respondent requested that the applicant provide an updated OCF-3, which the applicant has yet to provide. Instead, the applicant provided a form completed by a physiotherapist at Saugreen Physiotherapy, dated April 19, 2016. The form indicates a number of what appear to be self-reported symptoms and an inability to participate in certain hobbies, however there is no mention that the applicant is unable to return to his pre-accident employment or of the applicant’s ability or inability to perform the essential tasks of his pre-accident employment.
10The respondent arranged for the applicant to undergo a number of Insurer’s Examinations, including one by Dr. Chan, a psychologist, and one by Dr. Perez, a neurologist.
11Dr. Chan’s Report, dated May 12, 2016, noted that, by the time of the examination, the applicant was able to resume his normal housekeeping tasks but has not been cleared to resume extracurricular activities by his orthopedic surgeon and was unable to lift and carry his son. The applicant described that his work as a prep cook/dishwasher required him to be on his feet for the duration of each shift, intermittent with breaks. His job required him to prepare food, wash dishes, refill salt in water softener (lifting a 40 lb. salt bag to waist level), stock glasses in the bar, bus tables and perform janitorial duties after the restaurant was closed. Based on the description, Dr. Chan noted that the job of prep cook/dishwasher is classified as a light to medium occupation.
12Based on his observations, his review of the medical reports, a semi-structured clinical interview with the applicant and psychometric testing, Dr. Chan concluded that the applicant is experiencing an Adjustment Disorder with Mixed Anxiety and Depressed Mood, but at a level of severity that would not render him substantially unable to perform the essential tasks of his pre-accident employment as a dishwasher and food preparer. Dr. Chan opined that, from a psychological perspective, the applicant’s prognosis is good and will be largely dependent on improvement in his physical injuries.
13Dr. Perez, on the other hand, examined the applicant on May 3, 2016, and produced a report dated May 17, 2016. Dr. Perez also reviewed a number of medical records and conducted an interview and examination with the applicant. Dr. Perez noted a number of self-reported symptoms including dizziness and headache. Dr. Perez noted in his neurological examination that the findings with respect to visual fields, extraocular movements, pupils, fundi, cranial nerves, motor, sensation, coordination, and gait were all “normal.” Dr. Perez noted that there were no imaging reports available in the documentation to further localize the cervical vertebral fracture and correlate with symptoms. Dr. Perez concluded that the clinical picture is suggestive of the following neurological diagnosis: concussion, post-concussion syndrome, chronic post traumatic headache attributed to a mild head injury, neck pain, non- radicular low back pain, and post-traumatic positional vertigo.
14In spite of these findings, however, Dr. Perez concluded that strictly from a neurological perspective and based on results of the Functional Capacity Evaluation along with the Physical Demands Analysis of April 20, 2016, the applicant does not suffer from a substantial inability to complete the essential tasks of his pre-accident employment. However, Dr. Perez deferred the impact of the cervical vertebral fracture on possible physical activity limitations to an orthopaedic surgeon.
15The Physical Demands Analysis and Functional Capacity Evaluation referred to in Dr. Perez’s Report was conducted by Neil Edwards, a Registered Kinesiologist. In his Physical Demands Analysis Report dated April 26, 2016, Mr. Edwards reviewed the essential job functions of the applicant’s position as a prep cook/ dishwasher. He noted that the applicant typically worked four hours per day during the weekday and two four-hour split shits on the weekends with a 15 minute break. There are modified duties available for the applicant, including assistance for heavier lifting (namely the twice-weekly lifting of 40 lb. salt bags). However, the applicant is required to perform all the other tasks independently. Based on the information provided, Mr. Edwards classified the applicant’s position as light to medium work.
16Mr. Edwards also prepared the Functional Capacity Evaluation dated April 26, 2016. Mr. Edwards conducted a test to determine if the claimant’s “demonstrated abilities and subjective reports are an accurate and reliable measure of their actual abilities and limitations.” Based on the tests, Mr. Edwards concluded as follows:
The presence of high levels of physical effort on the applicant’s behalf;
The presence of minor inconsistencies in the reliability and accuracy of the applicant’s reports of pain and disability;
The applicant did not demonstrate any overt signs of functional limitation associated with sustained standing or stooping;
The applicant demonstrated good range of motion and functional strength in all assessed areas; and
The applicant demonstrated the ability to perform all pre-accident occupational demands as a prep cook/dish washer on a safe and dependable basis.
17Mr. Edwards noted that the Functional Capacity Evaluation may not be sensitive for episodic conditions, such as dizziness, but added this was not observed during the evaluation. Based on all the findings, Mr. Edwards concluded that the applicant should be able to perform work in his previous position on a full-time basis.
18The applicant was also examined by Dr. Paitich, an orthopaedic surgeon, on May 17, 2016. Dr. Paitich’s Report, dated May 24, 2016, concluded that the applicant has sustained an undisplaced fracture involving the C7 vertebral body as well as a transverse process fracture involving T1. However, Dr. Paitich described it as a “stable injury” for which the applicant has received “excellent care”. At the time of the examination, Dr. Paitich noted the applicant did not have any evidence of impairment with respect to the range of movement of his cervical spine and there was no evidence of spasm or guarding. There were no neurologic features whatsoever, Dr. Paitich added. Dr. Paitich concluded: “There is no medical contraindication to return to his pre-accident occupation without restrictions” and no indication that the applicant “has any accident-imposed limitations having any material affect on his ability to meet the demands of his pre-accident assessment.”
Analysis
19There are four components to the test for assessing whether the applicant should receive IRBs within the 104 weeks after the accident: first, there must be an impairment; second, the impairment must be as a result of the accident; third, there must be an analysis of what the essential tasks are of the employment; and fourth, there must be a substantial inability to perform these essential tasks.2 The burden falls on the applicant to demonstrate that he meets the test for IRBs.
20The applicant relied mostly on the reports of Dr. Perez, Dr. Chan and Dr. Paitich to argue that he suffered from very serious and ongoing issues as a result of the accident, and that he continues to suffer from post-concussion syndrome, chronic post-traumatic headaches, ongoing neck pain and C5 radiculopathy. Because of these conditions, along with adjustment disorder and depression, the applicant should be entitled to IRBs.
21Quoting from Dr. Perez’s Report, which noted that the applicant “will not be able to tolerate bending, pulling, lifting and overhead movements that are required in his work,” and Dr. Chan’s Report that the applicant experiences dizzy spells, as well as constant pain in his neck, shoulder and lower back, the applicant argued that these physicians made a contradictory conclusion in their reports, stating that the applicant could perform many of the required tasks of his pre-accident employment without providing any explanation.
22The respondent countered by stating that the comments quoted by the applicant were self-reported data. Based on my review of the IE reports, I agree. Neither Dr. Chan, a psychologist, nor Dr. Perez, a neurologist, conducted any test to ascertain the veracity of the applicant’s self-reported dizziness and headaches. They included the data as reported by the applicant.
23I also note that Dr. Chan, as a psychologist, was not in a position to comment on the applicant’s physical ability to carry out his pre-accident employment and did in fact qualify his opinion as such. He restricted his opinion to the severity of the applicant’s psychological condition and its impact on his ability to perform his prior employment.
24While the applicant has suggested that the respondent’s decision “disregards portions of their own assessment reports and ignore conflicting evidence presented by their own experts,” the same can be said about the applicant’s submission. Most notably, the applicant did not address the finding of Mr. Edwards in his Functional Capacity Assessment that the applicant has the ability to perform all of his pre- accident occupational demands. I also note that while the applicant referred to Dr. Paitich’s finding that he has sustained a fracture involving the C7 vertebral body, and a T1 transverse process fracture, he omitted to mention Dr. Paitich’s conclusion noting the absence of any medical contraindication to return to his pre-accident occupation without restrictions.
25The totality of the medical evidence before me indicates that, with proper accommodation (for instance, when lifting heavy objects), the applicant is able to perform the essential tasks of his prior employment as a prep cook/dishwasher.
26I am by no means suggesting that the applicant does not face ongoing challenges in his life and those challenges may very well affect his employment ability, but the burden is on the applicant to demonstrate that he meets the test as set out in the Schedule. As the respondent has pointed out, the applicant has not filed any medical evidence to prove that he meets the test for IRBs. Without evidence, the applicant has failed to meet the onus of proving, on a balance of probabilities, that he meets the test for pre-104 week IRBs and, as such, this aspect of his application must fail.
Applicant’s Entitlement to IRBs for the period of September 30, 2016 to November 10, 2017
27Throughout his submissions, the applicant referred only to his employment as a prep cook/dishwasher, and his inability to perform the essential tasks of this pre-accident employment. The applicant made no submissions on whether he suffers from a “complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience”.
28As I have found that the applicant has not discharged the burden of demonstrating he suffers from a substantial inability to perform the essential tasks of his pre- accident employment, it follows that the applicant also has not discharged the burden of showing he has a complete inability to engage in any employment. On that basis, the applicant’s claim for post-104 week IRBs must also fail.
Issue 2: Is the applicant entitled to interest on the overdue payment of benefits?
29As I find that the applicant is not entitled to the benefits claimed, no interest is payable because there are no overdue payments owing.
ORDER
30The applicant’s claims are dismissed.
Released: November 5, 2018
___________________
Avvy Go
Adjudicator
Footnotes
- O. Reg. 34/10.
- Brentnell v. Wawanesa Mutual Insurance Co., 2015 CarswellOnt 10313, FSCO A13-008004, June 30, 2015.