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:
[A.T.]
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Avvy Go, Adjudicator
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Mohamed R. Hashim, Counsel
HEARD:
In Writing on: July 22, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on July 30, 2017 when, as a front seat passenger, she was struck by another vehicle making a left turn.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). By letter dated August 21, 2017, the respondent advised the applicant she was eligible to receive income replacement benefits (IRB) at a weekly quantum of $326.31, inclusive of a back payment. However, the respondent terminated the IRB effective December 1, 2017. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”) to claim her ongoing entitlement to IRBs.
ISSUES IN DISPUTE
3As per an order dated February 27, 2019 from the Tribunal, I have been asked to decide the following issues:
(a) Is the applicant entitled to receive a weekly IRB in the amount of $326.31 per week for the period of December 1, 2017 to date and ongoing?
(b) Is the applicant entitled to receive interest on any overdue payment of IRB?
(c) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4For the reasons set out below, I find that the applicant is not entitled to receive the IRB and, thus, no interest is due. I also find the applicant is not entitled to any award.
ANALYSIS
Issue 1: Is the applicant entitled to receive a weekly IRB in the amount of $326.31 per week for the period of December 1, 2017 to date and ongoing?
Relevant Provisions under the Schedule
5Section 5(1)1 of the Schedule sets out the test for an employed person seeking IRB. It stipulates that the insurer shall pay an IRB if the insured person 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 was articulated in the decision of M.M. v. Northbridge Personal Insurance Corporation1 as follows:
To answer this question in the applicant’s case, two determinations are required. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of his employment?
6Pursuant to s. 6(2)(b), an IRB is not payable beyond the 104 weeks unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.
7The applicant bears the onus of proof to show her entitlement to IRB.
Summary of Evidence and Medical Reports
8There is no question that the applicant has sustained injuries in the accident and that the injuries fall outside of the Minor Injury Guidelines (MIG) as determined by the respondent. Before the accident, the applicant was working part-time as a Sales Associate for [a communication company] while attending university. The applicant’s life has been affected as a result of the accident. The issue before me, however, is whether the applicant is entitled to an IRB as per the test set out under s. 5(1)1 of the Schedule. To answer that question, I will consider the evidence before me, including the medical evidence and evidence with regard to the applicant’s employment activities.
9The applicant’s IRB was initially approved based on several medical documents, including the OCF-3 dated August 1, 2017 prepared by Dr. Ryan Pagnanelli, a chiropractor at MacKenzie Medical Rehabilitation Centre, which listed 15 injuries including concussion, dislocation, sprain and strain of joints and ligaments at neck level, thorax, lumbar spine, pelvis, and shoulder girdle; as well as injury of muscle and tendon at neck level, thorax, lower back and pelvis as well as shoulder and upper arm.
10Another OCF-3 also dated August 1, 2017 prepared by the applicant’s family doctor, Dr. Richard Chen,2 listed four injuries: right shoulder sprain, headache, nausea and upper back/neck sprain. Dr. Chen opined that the applicant met the disability test with an anticipated duration of 9-to-12 weeks.
11Documents submitted at the time also showed that the applicant worked part-time at [a communication company]. Her essential tasks of employment were listed as “working sales floor, maintaining store cleanliness”. The documents submitted by the applicant listed a collateral benefits carrier, Sun Life Financial, but there is no information as to whether the applicant has availed herself of any benefit from Sun Life. Based on the information submitted, the respondent approved the IRB.
12Between September and October 2017, the respondent requested a multi-disciplinary round of Insurance Examination (IE) reports pursuant to s. 44 of the Schedule. One of the s. 44 reports was a Job Site Analysis (JSA) report prepared by physiotherapist, Tracy Gilbert, and kinesiologist, Dana Metherall, dated October 11, 2017. The report concluded that the applicant’s job as a Sales Associate with [a communication company] was categorized as a Light Work position, requiring Light Strength level capabilities. Light work is defined as “Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly.” The assessors opined that the appellant requires light level strength and functional abilities for perform all duties of her pre-accident work.
13This was followed by a s. 44 psychological assessment report dated October 25, 2017 by Dr. Shulamit Mor. The applicant disclosed during the examination with Dr. Mor that she had returned to school full-time but that she would have to cut hours as the program was very demanding. While the applicant did endorse feelings of disconnect due to pain limitations and vehicular anxiety, Dr. Mor concluded that the applicant did not suffer a substantial inability to perform essential tasks of her employment and that her demanding studies would be the source of stress.
14Finally, a s. 44 orthopaedic assessment report dated November 1, 2017 was prepared by Dr. Samuel Soriano, who observed the applicant as having full, pain-free, range of motion in her neck and shoulders. Dr. Soriano opined that the applicant sustained soft tissue injuries to her neck, head, lower back and shoulders, and had not suffered a substantial inability to perform the essential tasks of her employment. Based on the reports of Drs. Mor and Soriano, and Ms. Gilbert and Ms. Metherall, the respondent then terminated the IRB.
15While the applicant’s IRB was terminated, the respondent continued to manage other claims for benefits for the applicant. The respondent commissioned a s. 44 psychological assessment report dated June 11, 2018 by Dr. Sanghera in which the applicant reported she was working part-time with [a tech company] doing sales. The applicant reported working about 12-to-15 hours a week started about three weeks prior. The applicant described her work as sitting at a kiosk and meeting with customers. The applicant reported taking frequent breaks at work, which she described as flexible and supportive.
16The applicant relied on some of the s. 44 reports to support her claim for an IRB. For instance, she pointed out that the JSA report by Ms. Metherall indicated that the applicant’s employment with [a communication company] as a sales representative “requires functional short-term and long term memory, concentration, attention, time management, alertness”, and an ability to multitask. The applicant pointed out that the PT and Kinesiologist report confirms the applicant has missed work because of back and neck pain in the six months prior and that there was a history of low back and pelvis pain due to a prior accident in 2016. In addition, the applicant pointed out that Dr. Mor’s psychological assessment indicated that the applicant reported not being able to return to work after the accident due to pain and anxiety about onset of pain while working. The applicant also noted that Dr. Sanghera’s report confirmed the applicant sustained a psychological impairment as a result of the accident and that she meets the diagnosis of Post-traumatic Stress Disorder, Moderate and Specific Phobia (Situational type, driving).
17The applicant argued that the orthopaedic report of Dr. Soriano was contradictory. On the one hand, Dr. Soriano noted in his report the applicant’s complaints of diffuse headache, neck pain, right shoulder pain and low back pain and yet he stated that these injuries were resolved and then stating there was discomfort. The applicant also submitted that the assessor failed to properly identify the applicant’s inability to return to work is due to injuries and impairments and not due to schooling.
18The applicant also relied on other medical and documentary evidence. To start, the applicant referred to the Clinical Notes and Records from Dr. Chen, her family physician, to support her IRB claim. Citing the notes between August 1, 2017 and January 28, 2019 recorded by Dr. Chen, the applicant said she has repeatedly reported pains and her inability to work due to her injuries. The applicant also provided a Verification of Student Illness or Injury report completed March 5, 2018 to confirm her inability to attend school, and a Sick Leave Request Form from [the communication company]dated September 12, 2017, December 8, 2017 and March 27, 2018 indicating her inability to work while she was employed by [the communication company].
19Finally, the applicant submitted a psychological assessment report by Dr. Arshad Mahmood and Dr. Tony Toneatto dated January 4, 2018 which provided a diagnosis of acute pain, PTSD, adjustment disorder with anxiety and depressed mood, and problems related to employment.
Analysis
20As noted above, the applicant bears the onus of establishing that she suffers a substantial inability to perform the essential tasks of her employment as a result of and within 104 weeks after the accident. After 104 weeks, the applicant has to show she is suffering a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
21In her submission, the applicant did not comment on the applicable test in this case. I will first address the applicant’s eligibility within 104 weeks.
22On balance, I find the applicant has failed to discharge her burden for IRB within the first 104 weeks.
23Starting with the evidence that the applicant seeks to rely on, including the notes and records by Dr. Chen, there was a gap in Dr. Chen’s notes between March 2018 and January 2019, when there was no entry. As well, Dr. Chen’s entry dated January 28, 2019 described the applicant as “able to function and able to work”. Given that the applicant was seeking an IRB effective December 1, 2017 and ongoing, a gap of almost 10 months from the applicant’s family physician during the relevant time period does not help the applicant demonstrate a substantial inability to perform the essential tasks of her employment.
24Further, while in her submission the applicant characterized her family physician being in complete support of her inability to work, an actual reading of Dr. Chen’s notes appears to suggest otherwise. For instance, an entry dated March 27, 2018 from Dr. Chen depicted the applicant approaching her doctor to complete previous work forms and the physician noting the applicant as capable of working modified duties and was doing home exercise, including yoga. Similarly, Dr. Chen’s entry of January 28, 2019 noted full range of motion in the applicant’s back, as well as no visible abnormalities, in addition to noting the applicant being able to work.
25The applicant also submitted that the IE assessor, Dr. Soriano, stating the applicant is not coping well in school and attended less often due to pain, when the actual passage in the IE report stated as follow: “She started her university course in the fall and is coping well sitting at the computer most of the day, although her lower back does bother her periodically.”
26As well, one of the key elements for assessing the applicant’s eligibility for IRB is her ability, or lack thereof, to perform the essential tasks of her employment. The evidence shows that her job at [a communication company] was determined to be light duty work. The orthopaedic assessment by Dr. Soriano confirmed that the injuries sustained by the applicant to her neck, head, low back and shoulders appear to have resolved satisfactorily, although she still complained of some discomfort in her back. The report concluded that the applicant was able to function within normal parameters and did not suffer a substantial inability to perform the substantial tasks of her employment as a result of the accident. The report noted that the applicant “has not returned to work because she is now studying computer science at university”.
27The evidence further reveals that the applicant worked part-time with [a tech company] Sales after her IRB was terminated. In reply, the applicant pointed out that she did return to work briefly but was unable to manage. However, the evidence does show that the applicant worked from April 2018 and July 2018, a factor which I find weighs against a finding of an inability to perform essential tasks of her employment with [the communication company], which the JSA report concluded as a “light work” position.
28The Sick Leave Request Forms submitted by the applicant to [the communication company] also provide little insight into her ability to work. In the forms dated September 12, 2017 and December 8, 2017, the section titled “Restrictions” was crossed out and noted as “N/A”, while the form dated March 27, 2018 indicated that the applicant was not able to lift more than 15 pounds or push more than 5 pounds. It is unclear whether the “N/A” signaled there was no restriction on the applicant’s work or had some other meaning. Equally unclear is whether the applicant’s employment at [a communication company] required her to lift more than 15 pounds or push more than 5 pounds. In the JSA report, Ms. Metherell noted under physical demand, the type of lifting and pushing that the applicant would be required to do on her job as follows:
Lifting
Floor to Bench Bench to Shoulder Above Shoulder
Rare Frequent Rare
Phones/Speakers/Phone accessories stored in lower cupboards (negligible weight) Phone accessories (negligible weight) Wall display items – phone accessories (negligible weight)
Pushing
Pushing/Pulling Upper Extremity Pushing/Pulling Whole Body
Rare None
Mopping store to clean up spills/marks on flooring Not required
29Thus, while the applicant likely had some limitations and was not able to perform certain aspects of her position at [the communication company], including lifting more than 15 pounds and pushing more than 5 pounds, the JSA report suggested that these tasks were either rare or not required. It would be hard-pressed to conclude that the applicant’s inability to carry out these tasks alone would meet the test of “inability to perform the essential tasks of her employment” as a Sales Associate.
30Finally, with respect to the Student Illness Form dated March 5, 2018, it made no mention of the accident and did not describe any impairment. The Form appeared to cover only the period of March 1 to March 4, 2018. As such I give this document little weight.
31While the applicant has provided a reply submission, she did not provide any substantive response to much of the respondent’s argument, other than stating her disagreement with the argument.
32I do not doubt the applicant has suffered injuries from the accident which have affected her in various ways both physically and psychologically. However, the applicant has not discharged the burden of demonstrating that she suffers a substantial inability to perform the essential tasks of her employment as a result of and within 104 weeks after the accident. Her employment at [a communication company] was a light work position. While the applicant might have certain limitations with regard to the physical demands of her work, those demands were rare at best. The applicant was able to return to school, albeit with some stress and a reduced load, the applicant was also able to secure a part-time job with [a tech company] for about three months. The medical evidence also was equivocal, particularly when I consider the eight months gap in the applicant’s family physician’ clinical notes and his comment that the applicant could do modified work by March 2018 and was able to function and work by January 2019.
33Taking into account the totality of the evidence, I therefore find the applicant is not entitled to IRB as of December 1, 2017 and ongoing within the 104 weeks after the accident. As such, I do not have to deal with the applicant’s entitlement to IRB after the 104 weeks of the accident.
34In her submission, the applicant raised a new issue, namely, that the respondent has miscalculated the weekly amount of the IRB she is entitled to. Based on the income from the four weeks prior to the accident, the applicant argued that her weekly IRB should be $370.46, instead of $326.31. In reply the respondent submitted that this issue was not properly before the Tribunal as the applicant at no point during the management of her claim questioned the weekly payment, nor did she raise an objection to the quantum at the case conference.
35Given my finding on the entitlement, there is no need for me to address this issue.
Issue 2: Is the applicant entitled to interest of the overdue payment?
36Section 51(1) of the Schedule states that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required. Section 51(2) further provides that if payment of a benefit is overdue, the insurer shall pay interest on the overdue amount.
37As there is no overdue amount, the applicant is thus not entitled to any interest.
Issue 3: Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed the payment of benefits?
38This Tribunal has the power to award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, pursuant to s.10 of RRO 1990, Reg. 664.
39An award may only be awarded in the case where benefits are found payable. As I do not find the applicant eligible for the IRB effective December 1, 2017, I therefore do not find the applicant entitled to any special award.
FINDING & ORDER
40The applicant’s application for an IRB for the period of December 1, 2017 to date and ongoing is denied. There is no payment overdue and as such there is no interest owing. The applicant is not entitled to any award.
Released: December 3, 2019
Avvy Go Adjudicator
Footnotes
- M.M. v. Northbridge Personal Insurance Corporation, 16-000682/AABS, February 14, 2017, at para 18, aff’d 2017 ONSC 5885 at para 17
- I note that in her submission, the applicant kept referring to her family physician as Dr. Richard Chan, while the respondent referred to him as Dr. Chen. Throughout my decision I would refer to the applicant’s family physician as Dr. Chen, based on the OFC-3 which I presume was typed and completed by the physician.