G. B. v. The Guarantee Company of North America, 2019 CanLII 22207

Date: January 23, 2019

Tribunal File Number: 18-001878/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:

G. B.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR:

Dawn J. Kershaw

APPEARANCES:

For the Applicant:

Andy Rady, Counsel

For the Respondent:

Patrick W. Brennan, Counsel

Held In Person:

November 26, 27 & 28, 2018

OVERVIEW

1On February 6, 2014, the applicant was a passenger in a vehicle that was parked in a parking lot, when a truck backed into her car, smashing the glass out of the back window. The applicant saw the impact coming and braced herself by grabbing the door handle with her right hand. At the scene of the accident, the applicant’s back felt warm and tingly and her right arm swelled up and felt heavy and “clubby”. She also had throbbing pain in her elbows. Her neck swelled up and felt like a tree trunk, and she developed a headache.

2The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). Because the respondent refused to pay income replacement benefits past the 104 week mark, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES IN DISPUTE

3The disputed claims in this hearing are:

i. Is the applicant entitled to receive a weekly income replacement benefit (“IRB”) in the amount of $400.00 per week for the period from October 4, 2016 to date and ongoing?

ii. Is the applicant entitled to interest on the overdue payment of benefits?

4In this case, the applicant was paid an IRB from February 2014 to October 2016. At the 104 week mark after the motor vehicle accident, or in this case February 2016, the test for entitlement becomes more stringent as set out, below. The applicant’s claim in this case is for post 104-week income replacement benefits.

RESULT

5Based on the evidence before me, I find that:

i. The applicant is entitled to IRBs in the amount of $400.00 per week for the period from October 4, 2016 to date and ongoing.

ii. The applicant is entitled to interest on the outstanding amount of IRB.

THE LAW

6The applicant claims an IRB for a period of time that begins more than 104 weeks after the accident. Section 6(2)(b) of the Schedule states:

“The insurer is not required to pay an income replacement benefit, after the first 104 weeks of disability, 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.”

EVIDENCE AND ANALYSIS

7In order for the applicant to prove on a balance of probabilities that she is entitled to an IRB after 104 weeks, she must demonstrate that she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience¹. The term “suitable employment” means employment in a competitive, real-world setting, taking into account an employer’s demands for reasonable hours and productivity, and the work must be comparable in terms of status and wages².

8The applicant in this case was approved for CPP disability benefits. As the Tribunal stated in 17-004229, relying on 16-002000 v. Jevco Insurance Company³, a successful CPP disability application is not determinative of entitlement to IRB. However, I agree with the Tribunal in 16-002000 that although it is not determinative, some weight must be given to the finding. I turn now to the evidence with respect to the applicant’s ability to work.

9The applicant continues to get headaches, which at times are piercing; neck pain from her head into her right shoulder; heavy, “clubby”, numb right arm; throbbing in her elbow; knife-like pain in her back, particularly if she overextends, as well as a sciatic-like pain into her right leg. At times, her right foot swells if she sits or stands for too long. The applicant testified she has been told her injuries are all muscular other than what she called “floating discs” in her back.

10The applicant lost her job a few days after the accident, and as a result suffered emotionally. The accident caused her to lose her livelihood, and time with her children and husband. She gets overanxious, irritable, edgy and moody. She feels useless and worthless, and has no self-esteem and little ambition.

11The applicant’s sleep pattern is erratic. Her mind is always active with thoughts and pain. She does little other than go with her husband to bingo two to three times a week or to the mall for a short walk to try and alleviate her depression and anxiety. She cannot walk around the mall without resting. She uses breathing techniques to help calm herself.

12Since her accident, the applicant has only been able to do a bit of housework and laundry, though she used to do all the cleaning except the bathrooms. She changes bed linens with her left hand. She does some stovetop cooking. She really misses gardening as she cannot dig, weed or use a pitchfork. She can no longer cut the grass.

13The applicant uses a bath chair. She dresses in loose, pull on clothes. She cannot tie things or do up fasteners. She wears her hair short now because she could not pull it back, and it is easier to wash with one hand. Her husband has to do up her bra for her and cut her toenails. Having to rely on him makes her feel useless. She has no self-esteem and has gained weight.

14The applicant does not have a set routine for her days. She does not make appointments because she does not know if she will be able to go, and goes when she feels she can. She does little now other than to try to cope with her soreness. She testified she no longer has a social life and spends a lot of time watching television. She occasionally visits her daughter.

15The applicant is anxious and physically uncomfortable in the car. She resumed being a passenger in a vehicle right after the accident. She has driven very little herself. She drove part of the way on a trip to Saskatchewan, but testified it is easier driving than the 401, for example, as it is not busy. She has tried to drive on the 401, but to this day prefers to take the highway 2 if they are driving to Toronto.

16The applicant’s husband testified that the applicant has become sad, a bit bitter and deflated. He said she hardly uses her right arm. While he cannot feel her pain, he sees she is in pain. He testified that they now have no social life.

17The applicant obtained treatment, including physiotherapy, including massage and laser, until between six months and a year ago. After 3 ½ years of treatment, she was told she was as improved as she was going to get. While she had brief improvement after a session, it also made her stiffer afterward. The physiotherapist recommended lots of exercise, and the applicant said at the gym she tried using a recumbent bike, did some walking with a TENS machine on and used the bands.

18She saw a psychologist for a period of time to try and deal with her feelings of uselessness and worthlessness, but ceased once the respondent stopped paying for her treatment.

19The applicant had a gym membership for two years, recommended for socialization and to help her physically. She went two to three times a week at first. She used the whirlpool and steam room. Going helped her socialize to some extent, but neither the physical or mental improvements lasted. She now uses bands and a hand ball on her own when she has the energy and is not in pain.

20The respondent in its submissions urged me to reject the applicant’s evidence because of credibility issues. For the reasons that follow, I found the applicant to be a credible witness, and I accept her evidence. The respondent, for example, pointed out apparent inconsistencies in the applicant’s reporting (and non-reporting) of headaches. Dr. Sequeira did not mention headaches. However, not only did the applicant circle “headaches” as a condition she had on the form she filled in for him, but she also shaded in the back of her neck and behind her right ear as the areas of pain, which was consistent with her evidence. The respondent also said that she may be getting headaches because of her overuse of medications. This too is consistent with her evidence, because she testified that sometimes headaches are caused by the medications. There is again no dispute that the applicant uses much medication, and may in fact be overusing medications, but she is using them to deal with post-accident pain.

21The applicant also gave somewhat inconsistent evidence about how often she had tried to drive since the accident. It appears she may have under-reported how often she had tried to drive since the accident. However, despite this, the evidence was clear that even in the face of some minor inconsistencies about the frequency, she still does not drive often, and she remains fearful of driving. She still prefers to avoid the 401 because it is too busy and it causes her anxiety. Her husband also testified that as a passenger she is constantly watching and cautioning him regarding his driving.

22The applicant also testified she had taken one airplane trip since the accident, but she had taken two. When asked about her evidence on re-examination, she appeared genuinely surprised that she had forgotten the second trip.

23The respondent also raised some other inconsistencies between the applicant’s evidence and the medical records. For example, the applicant said she gained weight because of her lack of activity since the accident, but one of her family doctor’s clinical notes stated she was 147 pounds, though she testified she weighed only 115 pounds before the accident. The respondent did not ask the applicant about this apparent discrepancy. In addition, I do not know if the applicant lost weight between 2012 and the accident in 2014. The fact that the applicant now blames her weight gain on the accident does not change my assessment of her credibility in the face of her consistent reports of pain.

24The respondent also submitted that the applicant’s credibility is at issue because she reported to doctors that she took fewer Tylenol 1 than she actually takes. She also continued to take more Tylenol 1 than her family doctor told her to take. Again, given the applicant’s consistent reporting of pain and the doctors’ acceptance that the applicant has chronic pain, her underreporting of her Tylenol 1 intake does not change my assessment of her credibility. My finding is supported by the fact that she admitted underreporting her intake.

25It is important that no doctor or assessor found that the applicant was malingering or lying about her abilities. They assessed her as genuine. The only adverse finding was in the FAE because the applicant self-limited. I accept the applicant’s explanation that she declined to do an activity she knew would cause her pain.

26I also note that in all the surveillance that was conducted, the applicant was not seen doing anything very physical. She was noted to go up and down the steps of her home slowly. She was seen to occasionally use her right hand to close a door or lift the garbage can lid. The earliest she was seen was just before noon, and even on her busiest day, she did nothing very physical. The surveillance does not change my assessment of this matter.

27In this case, there is virtually no disagreement among the experts that the applicant has chronic pain that interferes with her ability to engage in activity, whether because of the pain itself or because the applicant self-limits. Both Dr. Sequeira for the applicant and Dr. Bhardwaj for the respondent agreed the applicant has chronic pain. They differed only in their opinion of whether the applicant should be able to engage in activity in the face of that chronic pain. However, even Dr. Bhardwaj agreed that the applicant’s chronic pain negatively impacts her stamina and endurance, and the applicant cannot predict how she will be on any given day. That evidence in my assessment supports Dr. Sequeira’s conclusion that the applicant can only do part-time work in a supported role, meaning her co-workers and supervisors would have to assist her with any heavier tasks, and permit her to pace herself. As such, I find that the applicant’s chronic pain negatively impacts her ability to engage in activity on any kind of predictable basis.

28There is also no disagreement that the applicant has difficulties with her mood, even though there was some disagreement over whether the applicant has major depressive disorder or adjustment disorder. There was also disagreement over whether or not the applicant could work, given her mood issues. The post-104 test is a legal test for me to decide based on the evidence.

29The applicant had appointments with psychological experts arranged by the applicant and the respondent. There was little variation in the psychological reports of Dr. Bureau and Dr. Freedman, the applicant’s and the respondent’s experts, respectively. Dr. Freedman diagnosed the applicant in May 2016 with chronic pain disorder, adjustment disorder and passenger anxiety. Dr. Bureau, who saw the applicant in 2016 and again in 2018 concluded that the applicant suffered from major depression, somatic symptom disorder and passenger anxiety. Both doctors diagnosed some factors of post-traumatic stress disorder, but agreed she did not meet all the criteria. Dr. Freedman also authored an addendum to his report in June 2017. He did not change his opinion about the applicant’s diagnoses, but concluded that the applicant did not suffer from a complete inability to perform any employment for which she is suited by education, training or experience. However, he came to his conclusion without being given the transferrable skills analysis to review.

30Dr. Bureau’s report took into account the applicant’s physical limitations even though he is a psychologist, whereas Dr. Freedman concluded based on psychological testing alone that the applicant was not prevented from working. Dr. Bureau testified his opinion was based on the whole picture, including the physiatry assessment. He also testified that on validity testing, the applicant scored perfectly, showing that she put forth full effort and was not malingering or lying. Dr. Freedman agreed the applicant was genuine in her presentation, and agreed that chronic pain can interfere with one’s ability to work, depending on the injury, the treatment and the medications given. He acknowledged that his view that the applicant could return to work was based solely on his assessment of her psychological state.

31I prefer the evidence of Dr. Bureau because he considered the whole picture. In addition, both experts agree that the applicant was genuine and Dr. Freedman agreed chronic pain could in fact prevent a person from returning to work. As such, I find that the applicant’s psychological symptoms are also interfering with her ability to return to work.

32From a physical point of view, the applicant cannot sit or stand for long periods. She cannot lift heavy items. She is not able to use her dominant right hand much. She continues to have headaches at times. I turn now to her education and work history.

Applicant’s Education and Work History

33The applicant has a high school education and took some refresher courses in Dictaphone, typing and accounting a few years after high school. She has a consistent work history that includes working in restaurants she and her husband owned, and for others; working at a dry cleaners for about four years; working as a temp at Saskatchewan Indian Affairs where she did up contracts and answered phones. She and her husband also ran a takeout food delivery service for several years. The applicant also worked at a college as a delivery driver and in the restaurant.

34At the time of the accident, she was working the night shift at the juice bar of a high end health club. She had worked at their restaurant for a year or two until it closed. She testified she thought she would end her working days there because she liked the job and her employers liked her and her work ethic. I turn now to the Functional Abilities Evaluation (“FAE”).

Functional Abilities Evaluation (“FAE”)

35The applicant underwent a FAE. It concluded she did not put forth maximal effort. She testified she tried to the best of her ability but declined some tasks, such as bending down and picking something up off the floor, because she knows she cannot do it without triggering great pain. When Dr. Freedman was asked about chronic pain, he testified that people with chronic pain limit their activities.

36While the FAE concluded that the applicant could do various jobs including at a call centre or as a security guard, I find neither of these would fit the applicant’s functional limitations that include daily pain, difficulties sitting or standing for any length of time, an unpredictable sleep pattern and limited use of her dominant arm. I also accept the applicant’s evidence that she could not do the job of Food Service Supervisor listed in the FAE because of her pain issues and medication use.

Employment since the Accident

37At the time of the accident, the applicant’s job required her to be active all day and not sit. She had to carry pails of ice and drink purees and clean.

38She returned to work for a few days after the accident, and was permitted to sit, but her employer then left her a message telling her they did not need her anymore. She testified her work ethic was totally different after the accident. Before she was injured, she did not even take a break in a 10-12 hour shift.

39The applicant has not sought work since the accident because of her soreness, her lack of a predictable schedule and the medications she takes.

IRB Test

40The test for IRB includes a consideration of whether the applicant could engage in self-employment. The respondent submitted that the applicant has a history of self-employment and a “true entrepreneurial spirit”. In my view, in order for the applicant to be self-employed, she would have to have the ability to attend to that employment at somewhat regular hours and would very likely have to engage in some physical tasks which the doctors conclude she cannot do. The respondent submitted that the applicant and her husband have started about three businesses together and even though she did the physical labour required, it is not to say she could not do this in a non-physical capacity. However, the test involves considering the competitive, real world setting, and I find that the applicant’s past entrepreneurial endeavours have involved having to do the physical work as well, and it is unrealistic to imagine that the applicant has the skills or experience that would enable her to start a business that would not require her to do the physical work required. As such, despite her entrepreneurial spirit and experience, I find she could not return to self-employment.

41In reaching my conclusion that the applicant has a complete inability to engage in employment, I find it necessary to consider the fact that the applicant has not even tried to return to work other than continuing to work with difficulty for a few days after the accident. The respondent relies on the case of N.M. v. The Guarantee Company of North America⁴ for the proposition that the effort an applicant makes to secure suitable employment is a factor to consider. By the same token, it was also held in this case that the fact that an applicant was granted CPP was also a factor to consider.

42In this case, the respondent relies on the fact that some of the doctors found that the applicant had some functionality. However, it is of note that even Dr. Bhardwaj who assessed the applicant on behalf of the respondent agreed that the applicant’s chronic pain negatively impacts her stamina and endurance, and the applicant cannot predict how she will be on any given day. While Dr. Bhardwaj reported that a lot of her patients are working, which helps distract them from their pain, the fact is she agreed the applicant’s stamina and endurance are negatively impacted. As indicated, the applicant in this case was approved for CPP disability benefits, which is a factor that works in her favour, though it is not determinative. With respect to the fact that the applicant has not tried to work, I find based on the applicant’s oral evidence and the medical evidence that she has pain that has prevented her from doing so. Given the constellation of pain symptoms as well as her intake of medications and her headaches, it is not unreasonable that she has not tried to return to work. In my view, unlike in the N.M. case, the medical evidence supports the applicant’s lack of attempts to return to work.

43In conclusion, I find that the applicant has a complete inability to engage in any employment or self-employment and is entitled to IRBs in the post-104 week period beginning October 4, 2016 to date and ongoing.

44The applicant is also entitled to interest on the outstanding IRB amount.

ORDER

45The respondent shall pay the applicant IRB in the amount of $400 per week from October 4, 2016 to date and ongoing.

46The respondent shall pay interest in accordance with s. 51 of the Schedule on the overdue weekly amount of IRB.

Footnotes

1. 1Section 6(2)(b) of the Schedule.
2. 2See, e.g.: 16-000874 v. Certas Home and Auto Insurance Company, 2017 CanLII 69444 (ON LAT); Burtch v. Aviva Insurance Co. of Canada, 2009 ONCA 479 (Ont. C.A.), paras. 15 & 23; 17-004229 v. The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT), para. 16; Henry v. State Farm Mutual Automobile Insurance Company, FSCO A09-000213.
3. 32017 CanLII 63617 (ON LAT) ["16-002000"].
4. 417-004229AABS, August 31, 2018 ("N.M.")