Citation: [The Applicant] vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 17-008445/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:
[The Applicant]
Appellant(s)
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
PANEL:
Rupinder Hans, Adjudicator
APPEARANCES:
For the Applicant:
Maria Makarova
For the Respondent:
James Schmidt
HEARD:
In Writing on: August 27, 2018
BACKGROUND
1On June 9, 2017, the applicant 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 Wawanesa Insurance Company initially paid an income replacement benefit (“IRB”), but terminated the benefit as at November 6, 2017. The termination was based upon the respondent’s position that the applicant was able to work in, at least, one of her two pre-accident employments. The respondent subsequently reinstated the benefit retroactively effective May 7, 2018. However, the respondent did not pay the IRB for the period from November 6, 2017 to May 6, 2018, a period of about six months. This is the period in dispute.1
3The applicant disputed the respondent’s decision not to pay the IRB for the period in dispute, 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”).
ISSUES IN DISPUTE
4The following issues are in dispute:
a. Is the applicant entitled to a weekly IRB in the amount of $400.00 for the period of November 6, 2017 to May 6, 2018?
b. Is the applicant entitled to interest for the overdue payment of benefits?
c. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5The applicant is entitled to a weekly IRB in the amount of $400.00, for the period November 6, 2017 to May 6, 2018.
6The applicant is entitled to interest in accordance with the Schedule.
7The applicant is not entitled to an award under Ontario Regulation 664.
ANALYSIS
A) Eligibility to Receive Income Replacement Benefits
8Based upon the evidence before me, I find that the applicant has met the eligibility test for IRBs. 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 each of her pre-accident employments, separately, as a personal support worker (“PSW”). The burden is on the applicant, and she has met her burden.
9It is undisputed that at the time of the accident the applicant was employed, and working for two separate employers as a PSW. She was employed at Weston Terrace Care Community (“Weston”), and Extendicare West Park Long Term Care (“Extendicare”). She had been working at both places since 2002. At the time of the accident, she was working on a full-time basis for both employers routinely working about sixteen hours a day. After the accident, she was able to eventually return to her employment on a full-time basis with Weston, and on a part-time basis with Extendicare effective on or about June 18, 2018.
i. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employments?
10To answer the question, I must first determine the essential tasks of the applicant’s employments; and second, whether the applicant is substantially unable to perform those essential tasks.
(a) The essential tasks of the applicant’s employments
11In her submissions, the applicant relies upon the job summaries provided by her employers with respect to her duties as a PSW. With regards to her pre-accident employment at Weston, her job responsibilities include:
a. Ensures and promotes the provision of resident-focused care to meet the needs of residents.
b. Provides supervision and/or assistance to the residents in the activities of daily living including eating, dressing, transferring, toileting, hygiene, grooming and bathing as per the resident’s individual plan of care.
c. Provides cognitive, social, emotional and spiritual support.
d. Provides oral and dental care.
e. Provides for and assists in achieving the residents’ nutritional needs including assists residents to and from dining room as requested or required; assists the residents in choosing their food preferences and instructs residents with eating at scheduled meals, teas and snacks; assists and instructs residents in the use of self-care feeding devices.
f. Provides for and assists with residents’ elimination needs as determined in the individual care plan as follows: administers and removes bed pans and urinals; assists residents to and from commode chairs and toilets as per policy; follows bowel and bladder training program and incontinent care.
g. Provides routine personal care and bathing as scheduled by inspecting each resident’s feet and nails and reports concerns to registered team member.
h. Provide comfort, rest and sleep to residents in their physical environment, positioning and health treatment and care routines as per care plan.
i. Provides support services to meet the needs of the residents as follows: porters residents to various appointments; uses sanitation and infection control procedures; cleans hydrotherapy units, tubs, shower chairs and lift chairs with a germicidal cleaner as per policy and procedure.
j. Participates in material management of the home and human resource management.
k. Participates in records management and home’s quality management.
12The job summary lists the working conditions at Weston as including: lifting alone and with assistance; pushing/pulling content; crouching, kneeling, stopping/bending for short periods of time; walking and climbing stairs frequently and standing for long periods of time.
13With respect to her employment at Extendicare, the applicant provides a Nursing Administration Manual from Extendicare which list her duties and responsibilities as including:
a. Provides personal care to promote the comfort and safety of residents, and typical activities include bathing, skin care, mouth care, dressing, grooming (e.g. shaving, nail care, hair care), answering call bells, monitoring intake and output, care for catheters and accessories, colostomy care and accessories and providing physical assistance to residents as required.
b. Making beds and cleaning bedside units, collecting and bagging soiled linen for dispatch to laundry, sorting and storing clean linen, emptying bedpans, removal of unsafe objects, labelling personal items.
c. Perform selected procedure such as collecting specimens, measuring weights and completes daily care records.
d. Assist in providing restorative care for residents; assists with ambulation, nutritional needs, and palliative care.
e. Assist with meal service and nourishment delivery to residents and provides feeding assistance as required.
f. Provides emotional and social support to residents.
14Extendicare lists its working conditions as including: prolonged standing and walking; regular transferring and moving of residents, equipment and supplies; and repeated squatting, reaching and bending.
15The respondent provides the Hypothetical Jobsite Analysis (the “Jobsite Analysis”), dated November 1, 2017, that was completed to establish a description of the physical demands required to perform the essential task of the applicant’s pre-accident employments. The Jobsite Analysis lists the essential job tasks as those set forth in the job description from Weston, as set out above. The Jobsite Analysis further states that the essential physical requirements of the applicant’s position include:
a. Lifting up to 20 lbs. from floor to waist level
b. Lifting up to 50 lbs. from hip to hip level
c. Carrying up to 20 lbs. using both hands
d. Carrying up to 10 lbs. using one hand
e. Pushing and pulling with a force of up to 50 lbs.
f. Frequent walking
g. Frequent forward reaching
h. Occasional lowered work in standing, squatting and truck rotation in standing
i. Rare reaching overhead, sitting, static standing and repetitive squatting
j. Forward, lateral, overhead and lowered reach
k. Gripping and handling
l. Cervical flexion and rotation
m. Fine finger movements.
16The Jobsite Analysis lists the level of strength required for the applicant’s work as medium. The weight bearing demands are listed as 90 percent walking/standing, and 10 percent sitting. The applicant also uses, or can use, a Hoyer lift or other machine assistance to assist with patient transfers.
17I find that the job descriptions from both Weston and Extendicare and the essential tasks as set forth in the Jobsite Analysis are consistent and similar. I find that the essential tasks include: providing supervision and/or assistance to the residents in the activities of daily living including eating, dressing, transferring, toileting, hygiene, grooming and bathing; administering and removing bed pans and urinals; assisting residents to and from commode chairs and toilets; providing emotional and social support to residents; lifting alone and with assistance; and as more specifically set forth in the Weston job summary.
18Further, I find that the evidence before me establishes that the applicant’s work is medium strength, and requiring 90 percent walking/standing and 10 percent sitting. There is also prolonged standing and walking, frequent forward reaching, transferring and moving of residents, equipment and supplies, lifting alone and with assistance, and repeated squatting and forward reaching.
(b) Is the applicant substantially unable to perform the essential tasks?
19The applicant has established on a balance of the probabilities that, during the relevant time period, she was substantially unable to perform the essential tasks of each of her pre-accident employments, separately. The applicant submits that driving anxiety, chronic pain, frozen left shoulder and pain in her knee render her substantially unable to perform the essential tasks. Her symptoms include neck, back, left shoulder and left knee pain, headaches, and feelings of anxiety and depression. I find that the applicant provided compelling medical evidence regarding how her physical impairments affected her functionality and her ability to perform the essential tasks.
20The applicant relies upon the clinical notes and records of her family physician, Dr. Jack Mandel, who continued to provide the applicant with care during the period at issue. These include:
a. An October 5, 2017 note states “recovery has not plateaued. Works as PSW and involves lifting and bending. Back flection decreased by 30%.”
b. A November 20, 2017 note states that the applicant’s pain persists in her neck, left shoulder and left knee. Her shoulder abduction was 50%, and neck flexion and rotation decreased 20%. A diagnosis of cervical disc disease and rotator cuff tendonitis is made.
c. A December 11, 2017 note states that the applicant is still having pain in neck and shoulder. No improvement with physiotherapy.
d. A December 15, 2017 note states that the applicant is attending physio for rotator cuff tendonitis and tear, and her “work is physical (lifting) and no modified duties available.”
e. A January 10, 2018 note states that the applicant was advised steroid injections for her left frozen shoulder and torn subscapularis.
f. An April 14, 2018 note states that there is no change in pain and the applicant is complaining of pain in neck, back, left shoulder and knee.
21An ultrasound performed on the applicant’s left shoulder on November 29, 2017, revealed that the left shoulder is frozen at 45 degrees, left biceps tenosynovitis, and a partial tear the insertion of the subscapularis.
22A January 17, 2018 fracture clinic report notes that the applicant was seen over a year ago and had a torn meniscus at the time, but decided not to go ahead with knee surgery. Instead, she was given a cortisone injection. The applicant submits that her pre-existing knee condition was exacerbated by the accident, and she continues to experience left knee pain. The report notes that she has non-localized tenderness of the medial side of the left knee and it appear a little more marked on the joint line.
23The applicant further relies upon a chronic pain assessment report completed by Dr. Kevin Rod, on May 7, 2018, which states that the applicant is restricted with respect to: prolonged standing, walking and sitting, lifting and carrying, pushing and pulling, and bending, squatting and twisting. Dr. Rod diagnosed the applicant with the following: chronic pain syndrome, chronic cervicogenic headaches, chronic cervical zygapophy joints pain, chronic cervical pain/sprain, chronic left shoulder pain/sprain, chronic left wrist sprain, chronic left hand sprain, chronic cervicothoracic spine sprain/strain, chronic lumbar spine sprain/strain, chronic left knee sprain, chronic left lumbar polyradiculopathy, chronic sleep disturbances and chronic mood disturbances. He states that her chronic pain condition is well established. He notes that prior to the accident she was able to work at two places for sixteen hours a day, and that now she is unable to work, do housekeeping at home, to shop and she requires housekeeping and personal care support. He opines that she is not able to perform the essential tasks of her pre-accident employment as a PSW.
24An orthopaedic assessment report completed by Dr. Michael West, orthopaedic specialist, dated May 14, 2018, notes that the applicant’s injuries and impairments sustained in the accident include: a contusion to her left shoulder which resulted in post-traumatic frozen shoulder and impingement syndrome. She also sustained a contusion to her left knee resulting in post-traumatic patellafemoral syndrome and an exacerbation of pre-existing meniscal problem. Lastly, she sustained myofacial strain to her cervical spine and lumbar spine as a result of the accident. Dr. West opines that as a result of the injuries to her left shoulder, left knee and back, she is currently unable to complete the essential tasks of her pre-accident employment as a PSW. He states that she cannot perform tasks that involve long periods of standing or bending, or tasks that involve lifting, carrying, pushing or pulling.
25The respondent states that the assessments of Drs. Rod and West occurred outside the period in dispute though “admittedly only slightly so.” The assessments took place relatively and reasonably close to the time period in dispute, and thus, I have considered them.
26With regards to a psychological impairment, the applicant provides a psychological report dated November 17, 2017, completed by Ms. Mandeep Singh, psychological associate in a supervised practice, who diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood precipitated by the accident. The applicant is noted as having suffered a substantial inability to perform the essential tasks of her employment due to her injuries.
27The respondent relies upon the IE orthopaedic surgeon’s report by Dr. Jacqueline Smith Auguste, orthopaedic surgeon, dated November 1, 2017, and the subsequent paper reviews by Dr. Auguste.2 Dr. Auguste found that the applicant was substantially able to perform the essential tasks of her pre-accident employment as a PSW. Dr. Auguste opined that the applicant sustained a cervical strain/sprain and a lumbar strain/sprain as a result of the subject accident, as well as an exacerbation of pre-existing knee osteoarthritic changes and medial meniscal tear. She found that there was no compelling clinical evidence that her left knee presentation is any different than prior to the accident. Dr. Auguste did note that the applicant’s accident related symptoms in order of severity were: neck pain radiating to the posterior shoulders with prolonged static positions, stooping and attempts at repetitive use of her left arm in particular, and associated arm fatigue but no paresthesia; low back pain with prolonged sitting and standing, bending forward and heavier low level activities; and left knee pain located medially along the joint line and associated with stiffness and pain.
28The respondent further relies upon the IE psychological report of Dr. Silverman, psychologist, dated November 1, 2017, and the subsequent paper reviews by Dr. Silverman. Dr. Silverman diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood which has arisen in connection with the motor vehicle accident and its enduring consequences. He finds that she is not suffering a substantial inability to perform the essential task of her two jobs.
29I find that there is convincing medical evidence that the applicant’s physical impairments, specifically injuries to her cervical and lumbar spine prevent her from engaging in bending and lifting, her left shoulder impairment prevents her from actively engaging her shoulder and arm in lifting, reaching, pulling, and pushing. Further, her left knee impairment prevents her from prolonged periods of standing or walking. All these movements would be required to perform the essential tasks of both of her pre-accident jobs of caring for individuals.
30In addition, as set forth in the Job Analysis, the applicant’s positions require lifting up to 20 lbs. from the floor to waist level, lifting 50 lbs. from hip to hip level, carrying 20 lbs. using both hands, carrying 10 lbs. using one hand, pushing and pulling with a force of up to 50 lbs., frequent walking and forward reaching, and cervical flexion and rotation. Although the applicant may have access to a lift or other machine assistance, this does not diminish the fact that the level of strength required for the applicant’s work is medium level. Furthermore, her position requires 90 percent walking/standing, and repeated squatting, reaching and bending.
31With regards to her physical impairments, after considering the evidence presented, I prefer the medical evidence of the applicant, and especially her family doctor who continues to provide her with ongoing care and sees her on a regular basis. I am persuaded further by the orthopaedic and chronic pain reports and the diagnostic image report of the applicant. The applicant provided credible and sufficient medical evidence regarding her physical impairments, and has proven, on a balance of probabilities, that she suffered a substantial inability to perform the essential tasks of each of her pre-accident employments, separately.
32Since I have found that the applicant provided convincing evidence of her physical impairments, there is no need to analyze the psychological impairments within the IRB test.
33Given the above, income replacement benefits are payable.
B) Interest
34As I have found that an IRB is payable, interest is payable in accordance with the Schedule on any overdue amounts.
C) Award
35The applicant lastly requests an award under Ontario Regulation 664. I find that the applicant has not met her burden with regards to establishing that the respondent unreasonably withheld or delayed payments to the applicant of the IRB.
36The applicant asserts that the respondent acknowledged that she was substantially unable to perform the essential task of her pre-accident employment by reinstating her benefits effective May 7, 2018. The applicant further asserts that there was no reasonable explanation provided as to why the benefit remains unpaid for the six month period in dispute. The respondent counters that it assessed and re-assessed the applicant for the period in dispute, and that she was found to have been able to work at least one of her pre-accident positions. I agree that the respondent was actively assessing the file, and relying upon the medical opinions of its assessors. Although, I found that the IRB is payable, I do not find that the respondent unreasonably withheld or delayed payments.
37Under the circumstances, I deny the applicant’s request for an award.
ORDER
38I order that the applicant is entitled to a weekly IRB in the amount of $400.00 for the period November 6, 2017 to May 6, 2018, and interest is payable on these benefits as per the Schedule. The applicant is not entitled to an award under Ontario Regulation 664.
Released: March 7, 2019
___________________________
Rupinder Hans
Adjudicator
Footnotes
- I note that the Tribunal Order dated May 18, 2018 states that the applicant is seeking payment from November 7, 2017 to date and ongoing. However, the applicant asserts that the appropriate period of time is November 7, 2017 to May 7, 2018. By contrast, the respondent asserts that the time period is November 6, 2017 to May 6, 2018. A review of the respondent’s correspondences dated November 3, 2017 (when the IRB was stopped), and July 4, 2018 (when the IRB was reinstated), reveal that the IRB was stopped effective November 5, 2017, and reinstated effective May 7, 2018. Thus, the respondent is correct that the time period during which the applicant did not receive an IRB was November 6, 2017 to May 6, 2018.
- The applicant asserts that Dr. Auguste’s July 18, 2018 paper review report was provided on July 18, 2018, which is two days after the July 16, 2018 production exchange date set out in the Tribunal’s Order dated May 18, 2018. I have considered the report, and find that the prejudice to the applicant is minimal as the report was provided only two days late and well before her submissions were due. The applicant therefore had an opportunity to comment on the report.