S.G. v. Wawanesa Mutual Insurance Company, 2019 CanLII 76979

Tribunal File Number: 18-001861/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:

S.G.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

PANEL:

Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant:

Arash Goneh-Farahani, Paralegal

For the Respondent:

Jennifer Beresford, Counsel

Interpreter:

(Spanish Language)

HEARD:

In person: December 3, 5 and 6, 2018

Written submissions completed:

January 18, 2019

Oral closing submissions via Teleconference:

February 11, 2019

OVERVIEW

1S.G. ("the applicant") was injured in a motor vehicle accident ("accident") on July 18, 2015. The applicant applied to Wawanesa Mutual Insurance Company ("Wawanesa") for accident benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule'').

2Wawanesa denied the applicant's claims for weekly income replacement benefits ("IRBs"), the cost of an accounting report and the cost for the preparation of a disability certificate. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal"). She also claims an award pursuant to s. 10 of R.R.O. 1990, Regulation 664, alleging that Wawanesa unreasonably withheld or delayed payments to her.

3The applicant was a back-seat passenger when the vehicle she was riding in was struck from behind at low speed on the rear driver's side. The applicant conceded in her testimony to not knowing at the time of the impact that the vehicle had been hit. She returned to work for a few days following the accident but then went off work due to neck pain. The respondent paid her a weekly IRB of $400.00 per week from August 2, 2015 to March 8, 2016. She returned to work on March 9, 2016 and the IRB was stopped. She was then off work intermittently and has not worked since January 9, 2018. She has a high school education and English is not her first language. She has worked as a banquet server in Toronto since 1998. Her regular job duties included: serving food, carrying heavy trays with plates of food, and cleaning tables.

4The applicant's position is that she was unable to work either regular job duties or modified duties due to pain from her injuries. The applicant maintains that within 104 weeks after the accident, she suffered a substantial inability to perform the essential tasks of her employment. Further, the applicant argues that post 104 weeks of the date of the accident, she has a complete inability to perform any job for which she is trained, or suited for based on education, experience, and training.

5It is the respondent's position that since the IRB was stopped on March 8, 2016, the applicant has intermittently gone off work for reasons unrelated to the accident. The respondent maintains that the applicant did not continue to meet the substantial inability test within 104 weeks to continue qualifying for IRBs and that the applicant does not meet the complete inability test to receive IRBs post-104 weeks following the accident. The respondent raised the issue of causation and maintains that the applicant's current impairments to her left shoulder, neck, and back are not as a result of the accident and the applicant is not entitled to IRBs beyond March 8, 2016. The respondent also argues that the applicant is not entitled to the cost of examinations in dispute.

ISSUES

6The disputed claims in this hearing are²:

(1) Is the applicant entitled to receive an IRB in the amount of $400.00 per week from March 9, 2016 to date and ongoing?

(2) Is the applicant entitled to receive payment for the cost of an accounting report in the amount of $2,825.00 prepared by Davis Martindale Accountants, dated February 20, 2018 and denied by the respondent on February 28, 2018?

(3) Is the applicant entitled to receive payment in the amount of $350.00 on the cost of an examination for a disability certificate completed by Dr. Weinstock-Goldberg, completed January 17, 2018 and denied by the respondent on February 28, 2018?

(4) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(5) Is the applicant entitled to costs?

(6) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7I find the applicant is entitled to receive payment up to the amount of $200.00 on the cost of an examination for a disability certificate completed by Dr. Weinstock-Goldberg, completed January 17, 2018.

8I find the applicant is entitled to interest in accordance with s. 51 of the Schedule on the cost of examination for a disability certificate up to the amount of $200.00 completed by Dr. Weinstock-Goldberg dated January 17, 2018.

9I find the applicant is not entitled to an income replacement benefit, an accounting report in the amount of $2,825.00, an award, or costs claimed.

Procedural Issues

10At the outset of the hearing, the respondent requested an adjournment of the hearing on consent. The respondent stated that one of its expert witnesses, Dr. J. Tucker, psychiatrist was not available to testify, and there were outstanding productions which could assist with resolving the matter. The respondent further stated that they were served with a Notice of Motion from the applicant on the eve of the hearing at 11:15 pm, which they were not able to respond to. The applicant's Notice of Motion sought an order permitting her to add a claim for an award and for costs against the respondent, pursuant to Rule 19 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017 ("Tribunal Rules"). The respondent objected to an award being added at the hearing because there were two prior case conferences during which the applicant could have raised this claim.

11I have allowed the applicant's claim for an award and request for costs to be added as issues for this hearing. Prior case law has established that an applicant can make a claim for an award up to the time of the hearing, prior to the release of the decision. However, recognizing procedural fairness, the respondent ought to have the opportunity to respond to the claim for an award and costs. Therefore, I have allowed the respondent to file a written response to the applicant's claim for an award and costs, and the applicant was provided an opportunity to file a final written reply. A timetable was set up on consent for the filing of their written submissions.

ANALYSIS

IRB Entitlement from March 9, 2016 - July 17, 2017 (Within 104 Weeks of the Accident)

12The test for entitlement to IRBs within the first 104 weeks following the accident is set out at s. 5(1)1. i of the Schedule. The insurer is required to pay an IRB to an insured person who sustains an impairment as a result of an accident, was employed at the time of the accident, and as a result of and within 104 weeks of the accident suffers a substantial inability to perform the essential tasks of that employment.

13I find the applicant is not entitled to be paid IRBs for the period of March 9, 2016 - July 17, 2017. I find the applicant's inability to return to work was due to the following: pre-existing impairments to her neck and back, a shortage of work as noted by her employer, and a work-related injury which occurred on October 19, 2016. Further, there are issues with the applicant's credibility, particularly her evidence regarding her inability to return to work. I will elaborate further on my findings below.

Causation

14I have relied on the "but for" test in determining causation. I find for the period of March 9, 2016 – July 17, 2017 (within 104 weeks of the accident), the applicant did not suffer a substantial inability to perform the essential tasks of her employment as a result of the injuries she sustained from the accident. I find the applicant has not met her onus of proving that her inability to work beyond March 8, 2016 was due to injuries sustained as a result of the accident. The applicant went off work periodically since March 9, 2016 and the documentary evidence and the applicant's testimony do not support that her inability to work was due to injuries sustained as a result of the accident.

15The respondent raised the issue of causation. It takes the position that the applicant's injuries preventing her from returning to work were not caused by the accident. These injuries include a workplace injury to her neck for which she visited the hospital emergency room the day before the accident and a post-accident work-related injury which occurred October 19, 2016. It also takes the position that some of her time off work is because of annual lay-offs due to a shortage of work.

16The applicant's position is that "but for" the accident, she would be able to complete the tasks of her pre-accident employment. It is her position that she is unable to return to work as a result of the injuries she sustained as a result of the accident, including: psychological impairments, a chronic left shoulder rotator cuff injury, chronic neck and back pain, headaches, and insomnia.

17The parties have agreed that the "but for" test is the test to be applied to determine causation.

18There is evidence supporting the existence of both neck and back pain prior to the accident. The applicant attended the emergency department at North York General hospital on July 17, 2015, the day before the accident³, and the hospital record noted she had been experiencing neck pain for two weeks, which worsened while at work. The hospital record further noted that a Workplace Safety and Insurance Board ("WSIB") report was filed. The WSIB file noted prior claims related to low back for: July 21, 2007, May 13, 2004, and March 8, 1989⁴. The applicant was placed on modified duties by her employer following the work-related injury to her back on July 21, 2007.⁵ The clinical notes and records ("CNR") of the applicant's family doctor, Dr. S. Weinstock-Goldberg dated September 17, 2014⁶ noted that the applicant took one month off work for lumbar pain in 2014 due to a slip and fall which happened outside of work.

19Following the subject accident, the applicant saw Dr. Weinstock-Goldberg, on August 4, 2015 and reported the July 18, 2015 accident. The applicant was diagnosed with cervical strain and it was noted that she had free range of motion and tender trapezius in her left shoulder.

20There is medical evidence noting the applicant underwent a CAT scan of her cervical spine on June 30, 2016⁷ and the report noted the applicant had multilevel degenerative disc disease.

21The applicant had a work-related injury on October 19, 2016 and submitted a claim to the WSIB. The Employer's Report of Injury/Disease ("Form 7")⁸ noted the applicant reported she was carrying a tray and felt pain in her back. The form noted the areas of injury as: upper back, lower back, and chest and that the applicant was offered modified duties. It is worth noting that within the WSIB file, it noted no written documentation outlining any restrictions with work had been provided to the WSIB in relation to the work-related injury on October 19, 2016.

22Another application for short-term disability dated January 30, 2017 was completed and signed by the applicant and noted the applicant's last day worked was November 18, 2016. The form noted the disability was caused by an accident which occurred on October 19, 2016. A box was checked off as "yes" indicating the accident was work-related. Further, a box indicating "no" was checked in response to the question "was this a motor vehicle accident." The form further noted that the applicant was carrying a 20-25-pound tray and felt sudden pain in her back area. Dr. Weinstock-Goldberg noted on this application the date the applicant's first symptoms appeared was on October 21, 2016 and a return to work date was noted as January 30, 2017. The applicant testified she did not read the section of the form which her doctor had completed as she does not do that with her doctor.

23It was the applicant's testimony that her left arm was already weak as a result of the motor vehicle accident which caused her to have the work-related accident on October 19, 2016. The Record of Employment ("ROE") dated February 13, 2017⁹ noted the applicant's last paid workday was November 18, 2016 and the reason for issuance of this ROE noted illness or injury. The applicant conceded to completing an application for employment insurance ("EI") benefits herself. The applicant checked off on the application that she was not working due to illness, injury or surgery and the application noted a return to work date of January 30, 2017. In response to the question noted on the EI form: "Do you have an injury as the result of a motor vehicle accident?" The applicant checked off "no" in response to this question. The Service Canada file indicated the applicant had applied for and received EI for various time periods since 2012. Therefore, I am not persuaded that the applicant was unfamiliar with completing the application for EI.

24I find the applicant has not met her onus of proving that her inability to work beyond March 8, 2016 was due to injuries sustained as a result of the accident because of the following:

(i) The applicant's neck pain existed prior to the accident and the documentary evidence confirms it was aggravated by work two weeks prior to the accident. The documentary evidence of the June 30, 2016 CAT scan establishes the existence of multilevel cervical degenerative disc disease which is not accident-related, and the applicant continued to work.

(ii) The applicant had a work-related injury on October 19, 2016. However, the mechanism of injury stated by the applicant's testimony is inconsistent with what has been noted on the Form 7 and the short-term disability application form dated January 30, 2017. There is nothing noted within the Form 7, nor the short-term disability form relating to any weakness in the applicant's left arm. Rather, both forms noted back pain while the applicant was carrying a tray.

(iii) The documentary evidence further contradicts the applicant's testimony as the short-term disability form dated January 30, 2017 noted the disability was caused by a work-related injury on October 19, 2016. The applicant completed an application for EI sickness benefits and indicated that her injury was not as a result of a motor vehicle accident. The same return to work date, January 30, 2017, was noted on the short-term disability form and the EI application form. The only explanation provided by the applicant is that she does not read the section of the form completed by her doctor which I do not accept is a reasonable explanation for the inconsistency with her testimony and the documentary evidence. Further, no oral evidence was proffered by the family doctor at the hearing to address the inconsistency claimed by the applicant.

25Therefore, I find the Form 7 filed with the WSIB relating to the October 19, 2016 work related injury, the application for short-term disability dated January 30, 2017, and the applicant's application for EI sickness benefits all support the applicant experienced a work-related injury and thus her time off from work from November 18, 2016 - January 30, 2017 is not related to the accident and no IRB is owing for this period.

Periods in which there was no Financial Entitlement to IRBs

26The applicant is not entitled IRBs for certain periods, including when she:

(i) was working and receiving an income that exceeded her IRB eligibility for the periods: March 9 – June 24, 2016, August 21 – November 18, 2016, and February 18 – April 20, 2017 and;

(ii) was off work due to a shortage of work for the periods June 25 – August 20, 2016 and June 30 – September 3, 2017.

These will be discussed in further detail below.

27I find there is no entitlement for the applicant to receive an IRB from March 9 – June 24, 2016 as the gross weekly income received by the applicant though her employer exceeded the maximum weekly IRB payable of $400.00 a week as confirmed by the applicant's paystubs representing the period from March 9, 2016 to June 24, 2016.¹⁰

28The ROE dated July 14, 2016¹¹ confirmed the applicant went off work on June 24, 2016 and noted the reason as shortage of work/end of contract or season. I find the documentary evidence supports the applicant experienced a shortage of work for the period of June 25 - August 20, 2016 which supports her reduced gross average earnings during this period, and therefore the IRB is not payable.

29The applicant's gross average earnings from September 3 - November 18, 2016 exceeded any IRB entitlement and therefore I find no IRBs are payable during this period.

30As noted above, I found the documentary evidence supports the applicant was off work as a result of a work-related injury from November 19, 2016 - January 30, 2017.

31The applicant testified she was able to work with the accommodation of only doing the buffet work. This accommodation was still in place upon her return to work on January 30, 2017. Paystubs produced for the period February 18 - April 20, 2017 confirm the applicant's gross earnings from her employer exceed any IRB amounts payable.

32The applicant confirmed she went off work again June 30, 2017 due to a shortage of work. The Service Canada records noted the applicant requested an amendment to the reporting period of June 25 – July 29, 2017. The Service Canada records confirm the applicant was paid regular E.I. benefits from July 30 – September 3, 2017. The applicant then returned to work and worked up until January 9, 2018. The applicant's T4 income for the 2017 tax year confirms the applicant's total earnings were $52,312 which included additional income as follows: $17,577.00 rental income and $4,950.00 gross business income from Airbnb.¹²

The Applicant did not Suffer a Substantial Inability to Return to her Pre-accident Employment within 104 weeks of the Accident

33I find on a balance of probabilities that the applicant did not suffer a substantial inability to return to her pre-accident employment after March 8, 2016 because: there is no evidence which supports she sustained a physical or psychological impairment which would preclude her from returning to work, the family doctor noted the applicant could return to her regular work duties with no restrictions but could work two shifts, not three shifts per day, and no evidence was produced to support that the applicant's employer placed her on modified duties following her return to work after the accident. Further, as noted above, there is no entitlement to an IRB for the periods during which she was working (as there was no loss of income), and the periods during which she was paid EI benefits due to a shortage of work. I have addressed this as the applicant has claimed entitlement to an IRB ongoing from March 9, 2016.

34The applicant underwent a psychiatric insurer's evaluation ("IE") assessment with Dr. J. Tucker, psychiatrist on November 11, 2015. In this report, Dr. Tucker noted the applicant reported that following the subject accident was the first time she had a work absence.¹³ This was not an accurate statement as the applicant had taken one month off work following a slip and fall in 2014. Dr. Tucker could not conclude any psychiatric diagnoses stemmed from the accident. An addendum report dated December 7, 2015¹⁴ was issued by Dr. Tucker after her review of the family doctor's CNRs, and Dr. Tucker diagnosed the applicant with adjustment disorder with depressed mood, which was linked to the accident.

35The CNR of the applicant's family doctor, Dr. Weinstock-Goldberg, dated March 2, 2016¹⁵ noted the applicant was feeling better, her cervical strain was improving but she only wanted to return to two shifts per day on full duties, not three shifts per day, which she worked prior to the accident. Dr. Weinstock-Goldberg signed a Functional Abilities and Return to Work Form¹⁶ noting the applicant could return to regular full-time hours with no restrictions but only to work two shifts per day. The applicant testified that as of April 2016 she was working on modified duties and only worked on the buffet, which did not involve carrying heavy trays stacked with plates and this accommodation was provided to her by her employer.

36I do not accept the applicant's evidence regarding the workplace restriction being placed on her by her employer as of April 2016. The CNRs from the family doctor dated March 2, 2016 noted she could return to work with no restrictions, and no explanation was provided at the hearing why no written confirmation has been produced to support the claim that she was placed on modified duties as of April 2016. The applicant returned to the same employer in which she was placed on modified duties following the July 21, 2007 work-related accident as evidenced by the information noted within the WSIB file. This evidence shows that the applicant's employer previously provided written confirmation when the applicant required modified duties. Additionally, the applicant conceded at the hearing that it was not until 2017 that her doctor imposed the restriction that she could only do work on the buffet and could not work morning shifts.

37I am persuaded by the functional abilities evaluation report of Ms. P. Mark, kinesiologist, dated April 11, 2016¹⁷ that the applicant did not suffer a substantial inability to return to her pre-accident employment within 104 weeks. The results from the physical testing Ms. Mark did with the applicant did not coincide with the results obtained from the applicant's self-reporting questionnaire. Ms. Mark concluded the applicant had the substantial ability to perform the essential tasks of her pre-accident employment as a banquet server and there was no contradictory evidence produced at the hearing. This assessor testified at the hearing that the applicant demonstrated varied effort with her left hand during the rapid exchange grip test. Ms. Mark concluded the results for this test were invalid. On a test called the "Revised Oswestry" administered by Ms. Mark, the applicant completed a self-report questionnaire and scored 58% which corresponded to a severe disability. Ms. Marks concluded the applicant met the light strength test and was able to lift and carry up to 20 pounds. Functional tolerances were demonstrated with standing, lifting, walking, sitting, balancing, and stair climbing. The applicant was also able to reach overhead and kneel.

38I am persuaded by the findings within the May 30, 2016 orthopedic I.E. assessment by Dr. J. Theodoropoulos, orthopedic surgeon¹⁸ as it coincides with what Dr. Weinstock-Goldberg noted a few months earlier in her CNR dated March 2, 2016 that the applicant could return to work regular full-time hours with no restrictions but only to work two shifts, not three shifts per day. Dr. Theodoropoulos noted the applicant returned to her job in March of 2016, with the exception that she tries not to lift heavy dishes. It was further noted that the applicant returned to her pre-injury level of activities including all of her housekeeping and home maintenance activities, with the exception of going to the gym. It was also noted the applicant had episodic hand numbness and underwent an EMG assessment, and a report dated March 4, 2014 indicated it was a normal study, but her symptoms were consistent with carpal tunnel syndrome. It was Dr. Theodoropoulos' conclusion that the applicant sustained soft tissue injuries from the accident and from an orthopedic perspective she does not suffer from any accident related impairments. He opined she could return to her employment on a full-time basis with no restrictions. An addendum report dated September 30, 2016 was issued by Dr. Theodoropoulos after reviewing further medical documents, in particular the CNRs of Dr. Weinstock-Goldberg and his opinion did not change.

39I find the evidence contained within the family doctor's records and the fact that the applicant was working at her pre-accident employment at the time Dr. Finkel, psychiatrist, completed a psychiatric IE assessment with her on June 2, 2016¹⁹ supports the conclusion reached by Dr. Finkel. It was Dr. Finkel's opinion that the applicant was not disabled as a result of a psychiatric impairment arising from the accident and thus, does not suffer a substantial inability to return to her pre-accident employment as a result of the accident. The report noted the applicant presented with no cognitive difficulties. Dr. Finkel noted the applicant reported she only "very occasionally" feels sad or lonely and it is due to not being as comfortable with driving as she used to be. It is noted that the applicant reported her condition has improved with the passage of time, she is able to manage personal care and pre-accident housekeeping and returned to work in March 2016 with slightly reduced hours and physical demands. Dr. Finkel noted the applicant's symptoms of depressed mood significantly improved and she had largely recovered from Adjustment Disorder. An addendum report dated September 30, 2016 was issued by Dr. Finkel in which he reviewed additional medical documentation and updated CNRs of Dr. Weinstock-Goldberg and his original opinion remained unchanged.

40In summary, I find that the applicant has not suffered a substantial inability to perform the essential tasks of her pre-accident employment, and therefore she is not entitled to an IRB in the pre-104 week period. I turn now to a consideration of her entitlement in the post-104 week period.

Complete Inability – Post 104 Weeks of the Accident

41Section 6(2)(b) of the Schedule sets out the test for entitlement to an IRB after 104 weeks from the date of the accident. To qualify for receiving IRBs the applicant needs to demonstrate that, as a result of the accident, she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

42I find on a balance of probabilities that the applicant has not suffered a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience. I find there are credibility issues with what the applicant disclosed to various assessors. I also find that the conclusions reached by the applicant's own assessors are not well supported and as a result, I am not persuaded by their conclusions. The details of my analysis are provided below.

43I give little weight to the applicant's neurology report dated March 9, 2017²⁰ completed by Dr. L. Majl, neurologist, because the applicant appears not to have reported any prior injuries related to work. It also appears that Dr. Majl did not review any other medical records. As such, his report is not reliable since he attributed all the impairments to the accident, without considering other causes.

44I also find the applicant's assessment report by Dr. I. Wilderman, chronic pain specialist, dated October 11, 2017²¹ to be deficient because it did not refer to the applicant having been off work for several months after the accident. In addition, it does not include all of the relevant information relating to the applicant's symptoms, including: hospital records noting the applicant reported neck pain prior to the accident and work-related injuries reported to the WSIB, specifically, the October 19, 2016 work-related injury. As such, his conclusion that the applicant was unfit to engage in her pre-accident employment tasks due to pain, physical limitations, psychological distress, persistent fatigue, decreased concentration, and memory ability is not valid as he did not have all the relevant information available to him.

45I afford little weight to the applicant's report by Dr. S. Konasiewicz, neurosurgeon, dated December 5, 2017.²² The report was done 28 months following the accident and the applicant had gone on and off of work for periods following the accident, including being off work following the work-related injury on October 19, 2016, which the report does not reference. The report suggests the applicant may have carpal tunnel syndrome and left side cervical radiculopathy, but the report does not link these to the accident. The report noted the applicant indicated the problems with her neck and shoulder had increased over the past year and that the problems to these areas increased following the 2015 accident. Dr. Konasiewicz noted that prior to the accident, the applicant had complained of some numbness and tingling to her left hand but two weeks following the 2015 accident the applicant had problems with the movement of her left shoulder and left side neck pain. The applicant's self-report regarding when her neck pain started was inaccurate as the hospital records produced for the hearing confirm the applicant visited the emergency room the day before the subject accident and reported she had been experiencing neck pain for two weeks as a result of work. The report noted no significant nerve root compression on the left side, but significant nerve root compression on the right side. The applicant was instructed to have an x-ray and ultrasound of her left shoulder and undergo a nerve conduction study of her left upper extremity to rule out carpal tunnel syndrome and/or concurrent cervical radiculopathy. No further x-rays, ultrasounds, or further nerve conduction study test results were produced for the hearing.

46I afford no weight to the applicant's orthopedic report by Dr. R. Richards, orthopedic surgeon, which is dated July 17, 2018.²³ I find the conclusion made by Dr. Richards is generally not supported by the documentary evidence. Specifically, he affords a significant amount of the applicant's left shoulder impairments to the accident and not to the WSIB work-related injury on October 19, 2016 but he does not provide an explanation why he discounts the impact of the October 19, 2016 work-related injury. Further, it was not until 2017 that Dr. Weinstock-Goldberg placed work restrictions on the applicant. Up until this point, there were no work restrictions noted by Dr. Weinstock-Goldberg since the subject accident. Dr. Richards does not address this within his report which I find problematic as the documentary evidence of Dr. Weinstock-Goldberg's August 4, 2015 CNR noted free range of motion with the left shoulder. Further, the May 30, 2016 IE report of Dr. Theodoropoulos noted no accident related impairments and concluded the applicant sustained soft tissue injuries from the accident and could return to work with no restrictions. Therefore, I find the evidence supports the issues with the applicant's left shoulder appear to have arisen following the October 19, 2016 work-related injury. Further, there have been no details noted by Dr. Richards surrounding the mechanism of injury. His assessment opines that she meets the test for IRBs within 104 weeks but does not provide any information regarding how she meets the test for post 104 IRBs. However, his report was issued three years post-accident. He noted an x-ray was done of the applicant's left shoulder on March 28, 2018. He noted it showed mild narrowing of the acromioclavicular joint consistent with early osteoarthritis. Dr. Richards noted the applicant sustained musculoskeletal impairments as a result of the accident and diagnosed the applicant with traumatically induced left rotator cuff tendinopathy and symptoms of cervical spondylosis and radiculopathy. Further it was noted by Dr. Richards that the injuries sustained from the accident could exacerbate the applicant's pre-existing injuries, and the applicant could also be more susceptible to experiencing a work-related injury.²⁴ It was concluded by Dr. Richards that the applicant was unable to complete the essential tasks of her employment, and is unable to engage in any employment for which she is suited by education, training, and experience.

47The applicant saw a psychiatrist, Dr. L. Kiraly, who issued an assessment report on behalf of the applicant dated June 29, 2018.²⁵ The applicant's main complaints were pain, anxiety, and depression since the accident in 2015. I afford little weight to this report as it does not address the post-104 IRB test, specifically that the applicant suffered a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience. Rather, her report addresses the pre-104 week IRB test and that the applicant is unable to perform the essential tasks of her employment. I find the report relies significantly on the applicant's self-reporting. There are inconsistencies arising from this as the applicant has not been accurate with what she reported to Dr. Kiraly regarding her time off from work. Further, Dr. Kiraly accepts the applicant has cervicogenic headaches diagnosed by a physiatrist but these headaches were not caused by the accident. Other documentary evidence confirmed the applicant's cervicogenic headaches were caused by sinusitis as confirmed by two CT scans in 2016 and 2017 and Dr. R. Chaban, otolaryngologist, diagnosed the applicant with mild sinusitis in a letter dated February 24, 2017 and septoplasty and endoscopic sinus surgery were recommended. The applicant reported her sleep was poor to Dr. Kiraly but it was noted by Dr. Kiraly that the applicant has symptoms of sleep apnea. The diagnosis provided by Dr. Kiraly is that the applicant suffers from: Major Depression, Mixed Chronic Pain Syndrome due to Psychological Factors and a General Medical Condition, and Chronic Post Traumatic Stress Disorder ("PTSD"). Dr. Kiraly concluded the applicant's pain prevents her from completing the essential tasks of her employment, and further concluded she is unable to complete the substantial task of any employment.

48Dr. Finkel, psychiatrist testified at the hearing on behalf of the respondent. He stated that he did not concur with Dr. Kiraly's diagnosis that the applicant suffered from PTSD as he found the applicant did not have symptoms to qualify for that diagnosis. Regarding Major Depressive Disorder, he stated the applicant only met four out the nine criteria required for this diagnosis, and at least five were required to qualify for this diagnosis. I prefer the evidence of Dr. Finkel as the applicant has relied exclusively from a psychological perspective on the report of Dr. Kiraly which I do not afford a lot of weight to for the reasons noted above.

49I find the applicant does not meet the test for post-104 IRBs as she has not met her onus that as a result of the accident, she suffered a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience for the following reasons:

(i) Dr. Majl and Dr. Wilderman did not review pertinent medical records which noted the applicant suffered from neck pain prior to the accident, and their reports fail to mention the applicant's prior work-related injuries;

(ii) The applicant was not accurate in the information which she reported to Dr. Kiraly, specifically, her missed time from work, the cause of her cervicogenic headaches was due to sinusitis, and Dr. Kiraly does not address the post-104 week IRB test within her report and;

(iii) I afford no weight to the report of Dr. Richards as I found that the conclusion reached by Dr. Richards discounts the impact of the work-related injury of October 19, 2016 and he attributed a significant amount of the applicant's ongoing left shoulder impairment to the subject accident. I find this conclusion does not coincide with prior medical evidence produced for the hearing. The applicant was off work following the work-related injury, complaints relating to her shoulder increased, and work restrictions were then noted by her family doctor in 2017. I find this evidence strongly supports that the workplace injury on October 19, 2016 was more significant than the subject accident as it relates to the applicant's ongoing impairments.

50In summary, I find that the applicant has not suffered a complete inability to engage in any employment by which she is reasonably suited by education, employment or training and therefore is not entitled to an IRB post-104 weeks.

Applicant's Entitlement to the Cost of an Accounting Report to Calculate the Income Replacement Benefit

51I do not find the applicant's expenses for the accounting report in the amount of $2,825.00 done by Davis Martindale Chartered Professional Accounts to be reasonable and necessary to calculate the IRB amount beyond March 8, 2016. The applicant was paid as an employee and paystubs and a T4 were issued, which I find was sufficient to calculate the IRB quantum. The Service Canada records confirm the amounts the applicant received for EI sickness benefits. The applicant also provided her post-accident tax returns. Therefore, I find all of the applicant's post-accident income was able to be calculated without the applicant obtaining her own accounting report. Therefore, the applicant is not entitled to the costs of the accounting report as the expense is not reasonable and necessary for the purpose of determining the applicant's entitlement to an IRB.

Is the Applicant Entitled to a Disability Certificate Dated January 17, 2018?

52I find the disability certificate ("OCF-3") dated January 17, 2018 is reasonable. However, I find the applicant is entitled to payment up to the amount of $200.00 which is in accordance with the Professional Services Guideline, Superintendent's Guideline No. 03/14. The applicant is required to submit an OCF-3 pursuant to s. 25 and s. 36 of the Schedule to request post-104-week IRBs from the respondent. The respondent denied this OCF-3 through an Explanation of Benefits dated February 8, 2018 which noted the respondent relied on its IE report dated June 15, 2016 which found that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and IRBs were stopped effective March 8, 2016. The respondent further noted they were maintaining their denial on this basis. The expense of the OCF-3 was incurred by the applicant. Therefore, I find it is payable up to a maximum of $200.00 in accordance with the Schedule.

Is the Respondent Liable to Pay an Award Under Regulation 664?

53I find the respondent is not liable to pay the applicant an award under Regulation 664. The respondent has maintained their position regarding their original denial of benefits. I do not find this to equate to an unreasonable withholding or delayed payment of benefits. The applicant submits that the reports of Dr. Kiraly, Dr. Richards, and Dr. Wilderman were produced to the respondent in advance of the applicant undergoing additional IE assessments, including psychological and chiropractic assessments. The applicant submitted these reports were not reviewed by the IE assessors, nor were further IE assessments scheduled by the respondent to address these reports. The applicant relied on jurisprudence from the Tribunal in support of her position in her claim for an award. The respondent submitted that the applicant had returned to work from March 8 – June 23, 2016 and underwent IE assessments which found the applicant's injuries did not preclude her from performing the essential tasks of her pre-accident employment. I have already found in favor of the respondent on this point. The respondent submitted that when the applicant went off work for periods following June 23, 2016, it was due to the being laid off due to a shortage of work, and a work-related injury. It was submitted by the respondent that on August 2, 2018 they received Dr. Kiraly's amended report dated June 29, 2018 and an addendum from Dr. Richards dated July 20, 2018 and neither opinion was persuasive.

54I am not persuaded by the jurisprudence produced by the applicant to support her claim for an award. Three of the cases provided by the applicant included: 17-004389 v. Aviva General Insurance²⁶, 16-000082 v. Echelon General Insurance Company²⁷, and 17-001173 v. Aviva Insurance Canada.²⁸ All of these cases found the applicant was entitled to receive IRBs, and there was no claim for an award in any of those cases. The last case the applicant submitted was 17-005825 v. Aviva Canada Inc.²⁹ In that case, the respondent was found liable to pay an award to the applicant. However, I find that case to be distinguishable from this one as in that case additional medical information was provided to the respondent and the respondent delayed approving treatment for the applicant for approximately three months and then approved the treatment incurred by the applicant on the date the respondent's written submissions were due for the hearing. In the case before me, the medical evidence produced to the respondent did not change its opinion regarding the denial of benefits as the respondent maintained its position that the applicant was not off work as a result of the injuries she sustained from the accident. It is the respondent's choice to determine if they want to have additional information put forward to their assessors, and not the applicant's.

55The onus is on the applicant to prove unreasonable withholding or delayed payment of benefits by the respondent and the applicant has not done so in this case. The applicant's claim for an award is dismissed without merit.

Is the Applicant Entitled to Costs?

56I find the applicant is not entitled to an award for costs as the applicant has not produced any evidence to support a claim for costs. Rule 19.1 of the Tribunal's Rules allows a party to make a request for costs to the Tribunal where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. In the applicant's written submissions for an award under Regulation 664, she has requested an order for costs against the respondent. The respondent submitted that no evidence was tendered by the applicant that the respondent's conduct raised to the level of being unreasonable, frivolous, vexatious, or in bad faith. I find the applicant has produced no evidence which warrants a claim for costs against the respondent. The applicant's claim for costs is dismissed without merit.

Is the Applicant Entitled to Interest?

57I find the applicant is entitled to interest in accordance with s. 51 of the Schedule for the cost of an examination for a disability certificate up to the amount of $200.00 completed by Dr. Weinstock-Goldberg dated January 17, 2018. As no other benefits are payable, no further interest is owing.

CONCLUSION

58I order the following:

(1) The applicant is not entitled to receive an income replacement benefit in the amount of $400.00 per week from March 9, 2016 to date and ongoing.

(2) The applicant is not entitled to receive payment for the cost of an accounting report in the amount of $2,825.00 prepared by Davis Martindale Accountants, dated February 20, 2018 and denied by the respondent on February 28, 2018.

(3) The applicant is entitled to receive payment in the amount of $200.00 for the cost of an examination for a disability certificate completed by Dr. Weinstock-Goldberg dated January 17, 2018 and denied by the respondent February 28, 2018.

(4) The respondent is not liable to pay an award under Regulation 664.

(5) The applicant is not entitled to costs.

(6) The applicant is entitled to interest in accordance with s. 51 of the Schedule on the cost of examination for a disability certificate up to the amount of $200.00 completed by Dr. Weinstock-Goldberg dated January 17, 2018.

Footnotes

1. 1O. Reg. 34/10.
2. 2The issues in dispute were confirmed by the applicant and respondent on the first day of the hearing as noted above and not as noted within Adjudicator Griffith's Order dated July 17, 2018.
3. 3Exhibit 3 - Document Brief of the Respondent, Volume 1, tab 9, at 110, 111
4. 4Exhibit 5 - Document Brief of the Respondent, tab 10, at 293
5. 5Ibid, at 267-274
6. 6Supra note 3, tab 9, at 140
7. 7Supra, note 3, tab 9, at 90-91
8. 8Supra, note 4, tab 10, at 287-290
9. 9Supra, note 4, tab 12, at 795
10. 10Supra, note 4, tab 4, at 29-38
11. 11Supra, note 4, tab 12, at 796
12. 12Supra, note 4, tab 5, at 71
13. 13Exhibit 2 - Applicant's Document Brief, tab 6, at 3
14. 14Ibid, Applicant's Document Brief , tab 7
15. 15Supra, note 3, tab 9, at 72
16. 16Supra, note 3, tab 9, at 105-106
17. 17Supra, note 14, tab 8, at 22-48
18. 18Supra, note 14, tab 9, at 4-13
19. 19Ibid, tab 8, at 14-21
20. 20Supra, note 14, tab 15
21. 21Ibid, tab 16
22. 22Supra, note 3, tab 9, at 116-118
23. 23Supra, note 14, tab 19
24. 24Ibid, at 7
25. 25Supra, note 14, Tab 17
26. 2617-004389 v. Aviva General Insurance, 2018 CanLII 81886 (ON LAT)
27. 2716-000082 v. Echelon General Insurance Company, 2016 CanLII 82874 (ON LAT)
28. 2817-001173 v. Aviva Insurance Canada, 2017 CanLII 93462 (ON LAT)
29. 2917-005825 v. Aviva Canada Inc., 2018 CanLII 98285 (ON LAT)