Citation: RP vs. Aviva General Insurance, 2019 ONLAT 18-000131/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:
RP Applicant
and
Aviva General Insurance Respondent
DECISION
ADJUDICATOR: Matthew M. Létourneau
APPEARANCES:
For the Applicant: Frank Mercurio, Paralegal
For the Respondent: Catherine H. Zingg, Counsel
HEARD: In person on September 25 & 26, 2018
OVERVIEW
1The applicant was involved in an automobile accident which occurred on June 23, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The respondent refused accident benefits relating to the injuries sustained in the accident, including income replacement benefit. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the denied income replacement benefit (other issues that were previously in dispute were resolved by the time of the hearing).
ISSUE – Entitlement to Income Replacement Benefits
3Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week, less any amounts paid by the respondent, for the period of June 30, 2017 to January 26, 2018, as submitted on April 17, 2017 and denied by the respondent on June 8, 2017?
4The applicant is not entitled to income replacement benefits given my analysis and determination that the applicant does not suffer a substantial inability to perform the essential tasks of his employment. My review of his work duties, injuries, medical information and testimony leads me to the conclusion that it was more likely than not that the applicant did not have a substantial inability to complete his duties as a Machine Operator.
RESULT
5The applicant’s claim for income replacement benefits is denied for the following reasons.
RELEVANT INFORMATION
Accident of June 23, 2016 Causing Work Stoppage
6The applicant claims income replacement benefits further to an accident he was involved in on June 23, 2016 in the afternoon. A tractor trailer came into his lane. He remembers hearing a bang and that his car was hit on the right side. His vehicle struck a light pole in the middle of the highway. The Automobile Proof of Loss shows that the applicant’s vehicle, a Jeep Wrangler, was a total loss.
7The applicant did not recall what happened next. He was disoriented and had temporary memory loss. For the following weeks, he could not remember his kids and believed he was back in India. His wife was concerned and scared, so he went to live with friends so that she could care for the children. For several weeks, the applicant was unable to function at all.
8At the time of his accident, his wife was not working as their second child had just been born. Prior to the accident, he would assist with the family and housework. Following the accident, while he lived with his friends, he did not contribute and was in pain. He took medication for pain. He testified that his mood was depressed and that he had a loss of memory.
Machine Operator Duties at [a communications company]
9The applicant worked for [a communications company] at the time of the accident and did not immediately return to work. He claims income replacement benefits regarding his employment as a machine operator. A review of his essential duties is necessary. The OCF-2 described his duties as including “operation and basic maintenance of all mechanical post processing and peripheral equipment” and that his essential tasks include loading stock, removing completed mail, maintenance, trouble shooting, operating equipment.
10The applicant testified that his role at the company was to operate a machine that sorts mail. He would load the machine with letters from bank and insurance companies. He loaded the machine by inserting envelopes and by gluing them. He then inserted flyers that he brings in a tray for reloading. The trays are stacked with paper about two feet high. He would program the computer for the process and accessorize manually. If the machine were to break down, he would make minor repairs.
11The machine is long, which the applicant testified was about three times the size of the hearing room, or approximately 1000-1500 square feet. There were other employees who were helpers, but he would lead the process and often help the others due to the speed of the process.
12The applicant worked an average of 42 hours a week, alternating from 3 days a week and 4 days a week. He earned about $18.00 or $18.25 an hour and was the sole income earner of the household.
Short-Term Disability - Manulife
13The applicant could not initially return to work after the accident due to his medical condition. He applied to his employer’s short-term disability program. The applicant was found to have a disability that entitled him to receive short-term disability payments from Manulife on this basis. He initially received payments from June 30, 2016 (1-week post-accident) to August 7, 2016, as his medical certificate suggested 4 weeks away from work. This was then extended to September 26, 2016.
14According to a letter from Manulife from November 20, 2017, the company understood that following September 26, 2016, the applicant was cleared to return to work at regular full-time duties and hours. However, the letter then states that the applicant went off work again in October 20, 2016, reportedly from a lumbar spine strain sustained during a workplace accident of lifting a load at work. Manulife reviewed physiotherapist and psychologist information, including a specialist report by Dr. A Czok from January 19, 2017 and determined that the evidence did not support short-term disability to be approved beyond March 5, 2017 as he did not meet the definition of disability in his group contract despite his claims of physical pain and symptoms of adjustment disorder.
Short-Term Disability – Employment Insurance (“EI”) Disability
15The applicant then applied to and received EI Disability benefits for 15 weeks between the start of his claim on July 2, 2017 and the week of October 22, 2017. When he attended Service Canada they requested a medical certificate. The applicant’s doctor stated in the certificate that, “due to back pain and headache [he was] unable to perform any strenuous work”.
16The applicant stated at the hearing that his family physician found that [his job] required too much lifting and standing. The back pain remained following the accident and he was recommended to find a new job.
17Of the 15 weeks of EI payments, the applicant was not paid for the first week, as it is a waiting period by law. He was also not paid for the week of July 30, 2017 to August 5, 2017, as he was on vacation in Alaska with his family for 10 days. He also took a few days of vacation between July 23, 2017 and July 29, 2017 which are not covered by EI, so he was not paid.
Work as Truck Driver
18The applicant began driving as of January 27, 2018. The parties agreed on this basis that his claim for income replacement benefits would not proceed past January 24, 2018.
19The applicant stated at the hearing that he took interest in a career as a truck driver as he believed it better suited his physical limitations since the accident. The applicant stated he began taking classes from February 20, 2017 to March 6, 2017. He also stated he did some yard training, such as learning to go in reverse and parking, for about 2 to 3 days of training in the truck for 1 hour each day.
Denial of Income Replacement Benefits
20The respondent denied the applicant’s income replacement benefit effective June 30, 2017, based on medical reasons supported by the insurer exanimation multi-disciplinary report by Dr. G. Jaroszynski, orthopaedic surgeon, Dr. John Lee, psychologist and Dr. Karen Hudes, chiropractor.
ANALYSIS
Applicant Not Entitled to Income Replacement Benefits
21The applicant is not entitled to Income Replacement Benefits for the period of June 30, 2017 to January 26, 2018. The applicant submitted that his level of impairment for physical and psychological reasons reached a degree of a substantial inability to perform his duties as a machine operator. The evidence does not show, on a balance of probabilities, that he had a substantial inability to perform the duties of a machine operator at [a communications company], as set out above, for this time period in dispute.
22The initial assessments of his condition showed that he only required several weeks off from work due to the nature of his physical injuries. The information submitted to Manulife showed that he required only 4 weeks off work at first. Manulife initially set his return to work date as August 8, 2016 based on this information.
23His family doctor, Dr. Sharma diagnosed the applicant in October 2016 with a physical impairment, including back strain and back pain, that limited him from lifting more than 5 kilograms and of sitting, standing or walking for more than 30 minutes. This level of impairment would have substantially impaired the applicant from completing his duties at that time. The applicant returned to work but stopped due to pain. Dr. Sharma told him to take 3 months off work.
24At an assessment on November 29, 2016, the applicant was referred to a specialist to assist with providing information for the Manulife claim. On January 19, 2017, the applicant attended with Dr. Czok and was diagnosed with cervical and lumbar sprain/strain and concussion requiring a further work stoppage for 6 weeks form that date. The applicant was again seen on February 23, 2017 for re-assessment by Dr. Czok who found that the applicant improved and could return to work in 4 weeks. This led to Manulife approving their benefits until March 5, 2017. This decision was contested by the applicant, but in its letter of November 20, 2017, Manulife is clear that there is simply no further information provided that would persuade them that he had a disability that prevented a return to work following March 5, 2017.
25The applicant maintained at his hearing that during the time period in dispute, he continued to not be sleeping properly and his mood and pain issues were too significant to allow him to work. He testified at the hearing that the pain and physical limitations would not allow him to operate the machinery and therefore, he could not complete the essential duties of his employment.
26EI Disability benefits were approved as of July 2, 2017, as a medical certificate by Dr. Sharma was submitted. The certificate provided only states that strenuous work should be avoided. Unfortunately, the applicant’s admissibility for these EI benefits does not help to conclude whether he had a substantial inability to perform his duties at [a communications company].
27I find that the duties as a machine operator were light duties. While the applicant explained that the weight and movements varied, the testimony heard - as well as the National Occupational Classification Code for this position - show that a machine operator consists of light duties. Additionally, the job site analysis by Dr. Karen Hudes states that the job was classified as requiring light strength demands. In particular, the job required standing, lifting of up to 20 pounds and a variety of movements such as carrying, handling, reaching, crouching, bending, twisting, etc.
28Dr. Hudes’s FAE report of June 5, 2017 discusses her assessments of the applicant of May 16, 2017 compared with January 5, 2017. She observed that the applicant has a normal range of motion of spine, shoulders, elbows, hips, knees and ankles. He could mid lift to 10 pounds and push up to 20 pounds. He declined parts of the lifting test, as well as carrying, pulling, climbing stairs, stooping and kneeling. Dr. Hudes’s referred to other professionals for an assessment of whether this met the level of substantial inability to perform his duties. I find that this shows improved abilities in meeting the physical requirements for the duties of machine operator. This assessment adds to the evidence showing an ability to complete physical tasks required by a machine operator position.
29I add to this the evidence of Dr. Jaroszynski’s report of June 5, 2017, which observed that the applicant’s accident caused soft tissue injuries, including whiplash associated disorder, that typically heals in 8 to 12 weeks. By the time of the assessment, the finding was that the applicant’s range of motion was normalized, and any shortfall was assessed as his lack of effort, rather than to any physical impairments resulting from the accident. The report concluded that there was simply no physical impairment that would prevent a safe return to work from a musculoskeletal perspective. I find that this evidence is the clearest statement that the applicant does not have a substantial inability to perform his duties during the time period claimed in this application. This, taken with the evidence above, is sufficient to show that the applicant did not have a substantial inability to perform his duties by June 5, 2017.
30While I accept that the motor vehicle accident did cause back and neck pain in the beginning, the evidence clearly shows that the applicant ought to have been able to safely return to his job after 1 – 3 months. Looking to Manulife’s conclusions, the applicant was cleared to work as of September 26, 2016. However, due to an injury at work, Manulife extended their finding of disability to March 5, 2017. While Manulife was assessing a different legal test, I find that the evidence that was lacking for Manulife to extend their short-term disability finding is also lacking for the Tribunal to find in favour of awarding an income replacement benefit past June 20, 2017. This lack of information for the applicant contrasts with the FAE and orthopaedic assessment reports which clearly show that there were no safety concerns to return to work as of June 2017 given the physical condition of the applicant.
31The physical requirements of the machine operator duties are key in assessing this claim. However, it is just as clear that there was no cognitive or psychological impairment that would have prevented a return to work during the time period in dispute.
32Manulife’s investigators reviewed the evidence provided and concluded that the symptoms of Adjustment Disorder did not render the applicant unable to meet the moderate level of cognitive ability required for his work as a machine operator.
33Dr. Lee arrived at a similar conclusion when he diagnosed the claimant with Adjustment Disorder with Depressed Mood in his January 24, 2017 evaluation. He found at the time that this was not bad enough to cause the Claimant to suffer a substantial inability to perform his tasks as a machine operator. In his report of June 5, 2017, Dr. Lee again made similar observations regarding his previous diagnosis of Adjustment Disorder with mixed anxiety and depressed mood and showed a worsening of the condition. Dr. Lee noted that the applicant’s family moved to India due to financial issue and this is a contributing factor. Psychological treatment was recommended – and this view was reiterated by Dr. Lee in person at the hearing – but the psychological impairment did not rise to the level of a substantial inability.
34Dr. Lee testified at the hearing as an expert witness and I accepted his credentials and report as persuasive on the evidence of any psychological impairment the applicant may have experienced.
35I conclude that that there is insufficient evidence of any impairment or limitations that would cause a substantial inability to perform the duties of a machine operator during the period of June 30, 2017 and January 26, 2018.
CONCLUSION
36The applicant is not entitled to income replacement benefits for the period of June 30, 2017 to January 26, 2018. As the applicant is not entitled to this benefit, no interest is owed by the respondent.
Released: August 27, 2019
Matthew M. Létourneau, Adjudicator