D.P. v. Chieftain Insurance, 2019 CanLII 119749

Citation: D.P. vs. Chieftain Insurance, 2019 ONLAT 17-007909/AABS

Tribunal File Number: 17-007909/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:

D.P.

Applicant

and

Chieftain Insurance

Respondent

DECISION

PANEL:

Cezary Paluch, Adjudicator

Lindsay Lake, Adjudicator

APPEARANCES:

For the Applicant:

Frank Van Dyke, Counsel

For the Respondent:

Jocelyn Tatebe, Counsel

HEARD IN PERSON:

August 7 and 8, 2018 (Belleville, Ontario)

OVERVIEW

1This decision follows a reconsideration of the decision made in this matter on December 11, 2018 (the “Decision”).¹

2At issue in the Decision was whether D.P. sustained a minor injury, if she was entitled to an income replacement benefit (IRB) and her entitlement to two treatment plans for occupational therapy and chiropractic treatment. In the Decision, we found that D.P.’s impairments fell outside of the minor injury guideline (MIG) due to chronic pain and that she was entitled to the two treatment plans in dispute. We also determined that D.P. was not entitled to an IRB for the period October 6, 2017 to date and ongoing.

3D.P. filed a request for reconsideration of the Decision on the IRB issue only.

4On July 12, 2019, D.P.’s request for reconsideration was granted² pursuant to Rule 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) as the Tribunal found that we made a significant error in our findings of fact. Specifically, the Tribunal found that we did not adequately look at the substance of, properly assess or give appropriate weight to D.P.’s expert reports as we found that these reports did not address the substantial inability test for determining entitlement to an IRB. The issue of whether the applicant met the substantial inability test was determined to be a legal finding to be made by the Tribunal and not by the experts. The Tribunal also held that the findings in the Decision with respect to IRBs regarding D.P.’s impairment and function were inconsistent with our other findings on the MIG and the treatment plans in dispute.

5The matter was referred back to us to redetermine D.P.’s entitlement to an IRB.

ISSUES IN DISPUTE

6The following issue is to be reconsidered:

(i) Is D.P. entitled to an IRB in the amount of $341.96 per week for the period of October 6, 2017 to January 30, 2019?³

RESULT

7We find that D.P. is entitled to IRBs in the amount of $341.96 per week for the period of October 6, 2017 to January 30, 2019 with interest in accordance with s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

ANALYSIS

Income Replacement Benefits

8The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident.

9D.P. bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from October 6, 2017 to January 30, 2019.

Essential tasks of D.P.’s pre-accident employment

10D.P. was employed on a full-time basis at a call centre in a customer service role at the time of the accident. In the Decision, we found that the essential tasks of D.P.’s pre-accident employment were as follows:

(i) sitting for long periods of time;

(ii) telephone use (receiving calls) to provide advice to customers including trouble-shooting and making sales inquiries; and

(iii) computer keyboard work/typing/mouse use requiring finger movements and repetition for long periods of time, quite possibly the majority of her work day.

D.P.’s substantial inability to perform the tasks of her pre-accident employment

11One of the primary reasons in the Decision for our finding that D.P. was not entitled to IRBs was because several of the applicant’s experts failed to address the question of whether or not D.P. was substantially unable to complete the tasks of her pre-accident employment. As this reasoning was determined to be an error upon reconsideration, we have now reconsidered the evidence and, as a result, we find that D.P. has proven on a balance of probailities that she is substantially unable to perform the essential tasks of her pre-accident employment as a result of her chronic pain in her left arm and shoulder.

12In the Decision, we found that D.P. had been consistent with her pain complaints in her left arm and shoulder, and that her pain remained ongoing even at the hearing. D.P. also testified and reported to several of the medical witnesses that since the accident, she was unable to sleep for longer than three hours per night due to pain and that she was still taking pain medication. We also found that D.P. was consistent with reporting the distress and functional limitations that her pain was causing her, which included difficulties with dressing, completing household tasks and caring for her autistic son. Being unable to complete such basic tasks as a result of her chronic pain leads us to conclude that she would also be unable to complete the straightforward tasks of her pre-accident employment.

13Our finding that D.P. meets the substantial inability test as a result of her chronic pain is supported by the findings in the April 26, 2018 Independent Medical Examination Report by Dr. Gavin Shanks,⁴ which we initially gave little weight solely as a result of it failing to address the substantial inability test, which was an error.

14In his report, Dr. Shanks opined that D.P. was unfit for her regular, or any other employment, as a result of decreased left upper extremity function resulting from pain and from fear of further injury.⁵ Dr. Shanks also noted that D.P.’s soft tissue neck and shoulder injuries and continuing myofascial pain resulted in an impairment of the left upper extremity function which interfered with working at a call centre.⁶ Dr. Shanks opined that at the time of his report, D.P.’s pain was such that accommodation would not facilitate a return to work⁷ and that D.P.’s impairment had been continuous since the accident.⁸

15The position of the respondent, Chieftain Insurance (“Chieftan”), was that D.P. failed to meet her burden of proving her entilement to IRBs. Chieftan relied upon the September 12, 2017 Insurer’s Examination (IE) Physiatry Assessment Report⁹ and the September 22, 2017 IE Addedum for Clarification Report¹⁰ both by Dr. Yuri Marchuk, physician, and the September 12, 2017 IE Functional Abilities Evaluation Report¹¹ and the Physical Demands Analysis Report¹² both by Mr. Michael Drinkwater, physiotherapist, in its submissions to support its position.

16In reconsidering the issue of IRBs, we place greater weight on Dr. Shanks’ report and D.P.’s evidence than on Dr. Marchuk’s and Mr. Drinkwater’s IE reports for the following reasons:

(i) Dr. Shanks’ opinion that D.P.’s impairments have been continuous since the accident are consistent with her ongoing pain reporting and resulting distress and functional limitations as discussed above and in the Decision;

(ii) While Dr. Shanks’ report was preapred approximately six months after the commencement of the period in which D.P. is claiming entitlement to IRBs, we are satisfied that his findings would apply to the duration of the period in dispute as he clearly explained in his report that D.P.’s impairments had been continuous since the accident which is consistent with other evidence including D.P.’s pain reporting;

(iii) Mr. Drinkwater ultimately conceded that he was not in a position to express an opinion in relation to D.P.’s employability despite the purpose of his reports being to ascertain the physical demands that D.P. experienced in the workplace;

(iv) Mr. Drinkwater also testified that his physical demands analysis was not representative of D.P.’s functional abilities due to significant variation in test results and D.P.’s inability to participate in a large portion of the functional testing due to her limitations. As a result of Mr. Drinkwater’s conclusion regarding D.P.’s test results, we are unable to place weight upon his findings despite his attempt to explain in his testimony that his test results were valid; and

(v) While Dr. Marchuk initial opined in his September 22, 2017 IE Physiatry Assessment Report that D.P. could resume her pre-accident employment at any given time and that from a physical medicine perspective, D.P. did not suffer a substaintial inability to perform the essential tasks of her pre-accident employement, Dr. Marchuk still required an MRI of D.P.’s left shoulder to rule out tendinosis/rotator cuff tears, “which may be preventing a return to work.”¹³ We are unable to place wieght on Dr. Marchuk’s opinion regarding D.P.’s ability to return to work because his initial opnion was not conclusive and it was also based upon Mr. Drinkwater’s findings which we found not to reliable, as discussed above.

17As the Tribunal also found on reconsideration that we did not properly analyze and consider all of the evidence, we also:

(i) still place little weight on Dr. J. Townley’s Orthopaedic Assessment Report dated January 11, 2018¹⁴ and his testimony because, as discussed in the Decision, he only addressed D.P.’s employability in a very general sense and does not provide any discussion or analysis about D.P.’s ability to complete the essential tasks of her pre-accident employment in a call centre as Dr. Shanks did. Also, as discussed in the Decision, Dr. Townley had very little information about D.P.’s pre-accident employment and he testified that he only presumed that D.P. required the use of both arms in her pre-accident position; and

(ii) place little weight on the opinions contained in the March 9, 2018 Occupational Therapy In-home Functional and Attendance Care Needs Assessment Report¹⁵ by Ms. Chantal Pullen, occupational therapist. In her report, Ms. Pullen opines that, “as her pre-accident job required bilateral hand activity, [D.P.] would have been limited in her ability to participate in work tasks (such as computer/telephone work).” ¹⁶ In addition to concerns over Ms. Pullen’s use of non-conclusive language as discussed in the Decision, there is no discussion in her report of the source of the information that D.P.’s pre-accident work tasks required bilateral hand activity as no documents were provided to Ms. Pullen for review prior to the completion of her assessment of D.P. Furthermore, no evidence was led that D.P. would not be able to type using a one-handed typing system with her dominant right hand, as Ms. Pullen also reported that D.P. demonstrated functional strength in her dominant right upper extremity¹⁷ and D.P. testified that she was able to complete other tasks, such as driving, using only her right arm. Ms. Pullen also reported observing D.P. reaching with her right arm above her shoulder,¹⁸ completing other light tasks, such as applying toothpaste to a toothbrush or wiping glass and manipulating items with her right hand.¹⁹

18As part of her submissions for reconsideration, D.P. argued that the Tribunal also failed to consider the evidence of Ms. Laurie Deviny, Dr. Niten Thanner and D.P.’s family physician, Dr. Steven Waring, in relation to D.P.’s entitlement to IRBs. While this evidence was included in D.P.’s original written submissions, the evidence from these medical professionals was not referenced by D.P. in her argument that addressed IRBs. Specifically, D.P. made no submissions to the Tribunal on how this evidence should be applied to the issue of IRBs. For these reasons, we are not prepared to consider the evidence from Ms. Deviny, Dr. Thanner and Dr. Waring at this time on the issue of IRBs, as the Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter.²⁰

19Even if we are incorrect in not considering the evidence of Ms. Deviny, Dr. Thanner and Dr. Waring on the issue of IRBs, we give little weight to this evidence for the following reasons:

(i) Dr. Deviny’s evidence is an Attending Physician’s Statement - Short-term Disability Claim dated March 6, 2018²¹ which notes that D.P. is unable to sustain keyboard use for longer than 30 minutes. It is unclear if this restriction applied to D.P.’s left hand or to both of her hands and no information is provided on how Dr. Deviny arrived at this conclusion in the 2-page document;

(ii) Dr. Thanner’s evidence was a Disability Certificate signed by Dr. Thanner on April 16, 2016, but not signed by D.P. until February 16, 2017.²² Similarly to the other OCF-3s submitted as evidence and discussed in the Decision, we give no weight to this document as it was signed by Dr. Thanner prior to the period in dispute and reflected an anticipated duration of D.P.’s disability that ended prior to the period in dispute for which D.P. is seeking entitlement to IRBs; and

(iii) Even in her reconsideration submissions, D.P. only generally refers to Dr. Waring’s evidence in her argument. Further, while D.P. does set out certain entries in Dr. Waring’s clinical notes and records (CNR) earlier in her submissions, none of these entries recommend that D.P. not return to work or reflect that Dr. Waring provided her with a note to exclude her from work. D.P. also made no submissions on how to apply Dr. Waring’s CNR entries to the issue of IRBs.

20For all of the reasons set out above, we prefer the evidence from Dr. Shanks’ report and from D.P. over the evidence submitted by Chieftan and find that D.P. is substantially unable to perform the essential tasks of her pre-accident employment as a result of her chronic pain in her left arm and shoulder. As a result, D.P. is entitled to IRBs for the period of October 6, 2017 to January 30, 2019 in the amount of $341.96 per week.

Interest

21Although not requested in the application, one of the issues in dispute listed in the Tribunal’s March 16, 2018 Order for determination at the hearing was interest.

22While this issue was not specifically referred back to us, this does not preclude D.P.’s entitlement to interest on IRBs following the reconsideration in this matter. As a result, we find that D.P. is entitled to interest on the IRBs owing as set out above in accordance with s. 51 of the Schedule.

CONCLUSION

23For the reasons outlined above, we find that D.P. is entitled to IRBs for the period of October 6, 2017 to January 30, 2019 in the amount of $341.96 per week with interest in accordance with s. 51 of the Schedule.

Released: November 1, 2019

___________________________

Cezary Paluch

Adjudicator

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 117-007909 v Chieftan Insurance, 2017 CanLII 147726 (ON LAT).
2. 2D.P. v Chieftan Insurance, 2019 CanLII 83888 (ON LAT).
3. 3At the time of the hearing, D.P. sought IRBs for the period of October 6, 2017 to date and ongoing. However, we only received evidence and submissions from the parties on IRB entitlement within 104 weeks of the accident as this was the time period during which the hearing took place. As a result, the period in dispute has been amended to end on January 30, 2019 and we do not make any findings on D.P.’s entitlement to IRBs for the period of 104 weeks after the accident.
4. 4Plaintiff’s Document Brief, tab 3.
5. 5Ibid. at page 23.
6. 6Ibid. at page 22.
7. 7Ibid. at page 23.
8. 8Ibid. at page 24.
9. 9Respondent’s Document Brief, tab 38, page 5.
10. 10Respondent’s Document Brief, tab 39.
11. 11Respondent’s Document Brief, tab 36.
12. 12Respondent’s Document Brief, tab 37.
13. 13Supra note 9 at page 10.
14. 14Plaintiff’s Document Brief, tab 2.
15. 15Plaintiff’s Document Brief, tab 4, page 3.
16. 16Ibid. at page 8.
17. 17Ibid. at page 4.
18. 18Ibid. at page 6.
19. 19Ibid. at page 4.
20. 20See I.K. v. Primmum Insurance Company, 2018 CanLII 13162 at para. 27.
21. 21Plaintiff’s Document Brief, tab 13.
22. 22Plaintiff’s Document Brief, tab 7.