A.S. v. Pafco Insurance, 2019 CanLII 94044

Citation: A. S. vs. Pafco Insurance, 2019 ONLAT 16-003683/AABS

Date: August 15, 2019

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

A.S.

Applicant

and

Pafco Insurance

Respondent

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Geoffrey Bogo, Counsel

For the Respondent:

Richard Horst, Counsel

HEARD:

In Writing on: August 5, 2019

DECISION

REASONS FOR DECISION

OVERVIEW

1The applicant, A.S., was involved in a motor vehicle accident on July 17, 2013. He claimed and received income replacement benefits (IRBs) from the respondent Pafco under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“the Schedule”).

2Pafco paid IRBs to AS from July 22, 2013 to November 25, 2014, when it terminated AS’s IRBs on the basis that AS did not qualify for them.¹ In response to the stoppage, A.S. applied to the Tribunal.

ISSUES

3The issues in dispute are:

1. Is A.S. entitled to IRBs of $400.00 per week from November 25, 2014 to date and ongoing?
2. Is Pafco entitled to a repayment of IRBs paid to the applicant for the period from November 24, 2014 to March 9, 2015?
3. Is A.S. entitled to interest on any overdue payment of benefits?

RESULT

4A.S.’s appeal is allowed. A.S. is entitled to IRBs from November 25, 2014 to date and ongoing. Accordingly, A.S. is entitled to interest on overdue payments at the prescribed rate.

5Pafco is not entitled to repayment of IRBs.

ANALYSIS

Causation: A.S.’s injuries and impairment are a result of the accident.

6Section 5. (1) of the Schedule requires the insurer to pay an IRB to an insured person who sustains an impairment as a result of an accident and who suffers a substantial inability to perform the essential tasks of his or her pre-accident employment. In other words, if the inability to work wasn’t caused by the accident, IRBs are not payable.

7If I find that the injuries and impairment suffered by A.S. were not a result of the accident, it will not be necessary to determine whether or not he satisfies the other entitlement tests set out in the schedule for this benefit.

8Pafco submits that A.S.’s ongoing back pain – which impairs his ability to work – is the result of post-accident weight gain. It bases this submission on the report by Dr. Raymond J. Zabieliauskas, physiatrist, dated October 16, 2013, in which Dr. Zabieliauskas opined that A.S.’s accident-related injuries consisted of cervical and lumbosacral strain that would have healed in the 2-3 months after the accident, and that A.S.’s continuing lower back pain was the result of mechanical back pain arising from a 7.25 kg weight gain following the accident. Dr. Zabieliauskas recommended that this weight and an additional 9-14 kg be shed to alleviate A.S.’s lower back pain.

9l agree with A.S. that Pafco’s submissions on causation are unpersuasive. I find no convincing evidence that A.S.’s pain and mobility complaints, and his rapid post-accident weight gain were not a result of the accident. A simple comparison of A.S.’s pre- and post-accident condition makes it clear that his inability to work began after the accident, and that on balance of probabilities his continuing pain and inability to work are a result of the accident. In reaching my decision, I considered that:

i. The accident need only be one cause of injury or impairment. It does not have to be the only cause or the primary cause. In this case, even if obesity made recovery from injury more difficult or exacerbated symptoms, as Dr. Zabieliauskas opined, that does not lead to a conclusion that A.S.’s injuries and impairments are not “as a result of the accident”, which is the standard set by the Schedule to establish entitlement.

ii. The evidence is that A.S. was overweight at the time of the accident and there is no evidence that excessive weight impaired his ability to perform his pre-accident job functions in any way. Functional impairment only arose after the accident, which I find works to establish that a causative role was played by the accident in A.S.’s disability.

iii. There is no evidence that A.S. ever presented with back pain before the accident. I do not find it plausible that the onset of back pain right after the accident (as evidenced by OHIP summaries, and family doctor CNRs) was coincidental. According to the medical evidence, A.S.’s continuous lower back and neck pain only arose after the accident, which I find establishes that a causative role was played by the accident in A.S.’s pain complaints.

iv. Dr. Zabieliauskas failed to consider whether A.S.’s gain of 7.25 kg (16 lb) over three months was in fact a result of the accident. I agree with A.S. that ignoring the common-sense explanation that A.S.’s rapid post-accident weight gain likely resulted from inactivity due to pain undermines the credibility of any claim that the weight gain alone is the cause of A.S.’s pain and resulting inability to work. Dr. Zabieliauska’s report does not provide me with any evidence that A.S.’s back and neck pain would have arisen without the accident as the result of obesity. There is no bright line that I can see in the medical evidence between injuries sustained in the accident and A.S.’s rapid post-accident weight gain. It fails to convince me that A.S.’s pain is not “as a result of the accident.”

v. Specialists such as Dr. Rick Zarnett, orthopedic and spinal surgeon and Dr. M.A. Zahavi, MD (pain specialist) diagnosed A.S. with chronic pain and attributed his condition to the accident. They were aware of A.S.’s weight and some degenerative disc disease issues, and had no difficulty linking A.S.’s impairments and condition directly to the accident. I am persuaded by their opinions as to causation. Their reports are noted in more detail below.

IRB Eligibility

10In this case, the relevant tests for IRBs are prescribed by sections 5 and 6 of the Schedule for an insured person’s eligibility for IRBs within and after 104 weeks of an accident in which he or she is injured. A.S. seeks IRBs for a period spanning both periods.

11Accordingly, to determine A.S.’s entitlement to IRBs, I must decide two questions:

1. Did A.S. suffer from a substantial inability to perform the essential tasks of his employment (the “substantial inability test”) for the period between November 25, 2014 and July 17, 2015 (“the pre-104 test” prescribed by s.5(1)1 of the Schedule)?
2. Did A.S. suffer from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience for the period after July 17, 2015 (“the post-104 test” prescribed by s.6(2)(b) of the Schedule)?

12The onus is on the applicant, in this case A.S., to prove entitlement to IRBs.²

13When the accident occurred, A.S. was forty-six years old, employed as a full-time machine operator with a custom machining company. He had held this job for about six years.

14A job site analysis performed by Dr. Michael Caterer at the insurer’s request³ and cited by A.S. confirmed that A.S.’s job required him to perform machining of large parts of oil cylinders, which required him to change machine bits of various weights, to program the machine, and manually file various parts. A.S. was required to walk and stand for prolonged periods frequently, reach forward frequently, lift occasionally, and sit rarely throughout his 8-hour shift. A.S. was required to move objects weighing up to 44 lbs. as an essential task of the job.

15Dr. Caterer rated A.S.’s position at requiring a medium level of strength as defined by the National Occupational Classification (NOC)⁴. Dr. Caterer also noted under the heading “Work Pace” that “The physical demand of the work would be considered a casual pace as the worker stands by while the machine performs the majority of the work.”

A.S. meets both tests for IRBs

16A.S. supports his claim to IRBs with the following evidence:

i. Disability certificates (“OCF-3s”) from Dr. Navraj Dhiraj, his family physician, in July 2013 and January 2014, confirming that he meets the pre-104 test due to cervical and lumbosacral muscular spasm, pain, tension headaches, post-traumatic stress, anxiety and other problems. These are reinforced by an OCF-3 from Dr. Garg, chiropractor, confirming AS’s inability to return to his job due to accident-related injury.

ii. A report from Dr. Rick Zarnett, orthopedic and spinal surgeon, March 2, 2017, confirming A.S.’s inability to return to his pre-accident employment and rating his post-104 employment outlook as poor due to his medical condition (“musculoskeletal pain and physical limitations”) and poor prognosis for full recovery. Dr. Zarnett diagnosed chronic pain and noted a 50% reduction in normal range of motion in the lower back as a direct result of the accident, along with pain generated by movement of the hips. He opined that A.S.’s “physical injuries represent serious and permanent impairments of important physical functions.”

iii. A report from Dr. Michael A. Zahavi, MD, a pain specialist, dated February 11, 2017 opining that A.S. “does not have the physical tolerance or ability to participate in any form of physical labour” and that “his current functional status precludes him from participating in a labour position.” Dr. Zahavi ruled out work that requires prolonged sitting in a static work station. Dr. Zahavi opined that A.S.’s symptoms are consistent with chronic pain syndrome and offered a guarded prognosis for recovery.

17Pafco contends that A.S.’s claim is not credible because:

i. There is evidence that he applied sub-optimal effort in some of the assessment tests, for example showing more lumbrosacral flexibility when distracted, and showing grip strength test results that are indicative of a failure to give maximum effort during his examinations by Dr. Zabieliauskas⁵. The same observations with respect to grip strength testing were made by Dr. Shawn Kavanaugh, chiropractic occupation and rehabilitation specialist, in his Functional Abilities Evaluation (FAE) report dated February 12, 2014: Dr. Kavanaugh also observed a lack of competitive test performances during dexterity tests which can reflect invalid results due to lack of effort.

ii. Reports by Dr. Zarnett and Dr. Zahavi in 2017 failed to include validity testing to check for malingering or exaggeration despite the concerns raised by Dr. Zabieliauskas and Dr. Kavanaugh in 2014. Pafco contends that these reports simply take A.S.’s complaints “at face value” and are thus unreliable indicators of A.S.’s true functional status.

iii. Pafco refers to changes in A.S.’s reporting to assessors about his accident as indicators of his non-credibility. The accident appears to get worse with the telling over the years. Specifically, A.S.’s later accounts of the accident involve a head strike that did not appear in contemporaneous reports.⁶

18I prefer the evidence of A.S. to Pafco’s evidence for the following reasons:

i. Dr. Zabieliauskas’s evidence is equivocal and unpersuasive on the question before me. He acknowledges A.S.’s pain and does not deny its severity, but simply attributes causation to weight-related mechanical pain. In the sections of both of his reports dealing directly with IRBs, Dr. Zabielauskas clearly indicates that A.S.’s current condition impairs his ability to work. He relates this all to A.S.’s weight and discounts the effect of the accident in opining that A.S. can return to work “with respect to the motor vehicle accident” [emphasis mine]. Having rejected the contention that A.S.’s weight alone causes his symptoms, I reject the argument that the accident is not the source of his inability to work. Dr. Zabielauskas’s report is in my view unclear as to the extent of A.S.’s inability to work. I don’t rely on it.

ii. Dr. Zarnett and Dr. Zahavi are direct and unequivocal in their evidence that AS meets both pre-104 and post-104 tests for IRBs. They address the post-104 test criteria directly up to and including A.S.’s likely competitiveness in the job market, noting his age, limited English reading skills and lack of transferable skills. Dr. Zabieliauskas’s evidence is compromised in my view as noted above. Fixated as it was on A.S.’s credibility, Pafco failed to provide me with a persuasive analysis of this question.

iii. In contrast to A.S.’s assessors, Dr. Kavanaugh does not relate his rating of AS’s “work ability”, which he rated as “sedentary industrial”, to IRB criteria. The report is not a clear indication that A.S. can either return to his pre-accident work (pre-104 test) or to some employment for which he is reasonably suited (pos-104 test). There is no challenge to A.S.’s assessors’ views of A.S.’s skills and aptitudes

iv. Potential concerns about signs of self-limiting by A.S. in tests do not convince me to discard the findings of experienced specialists because:

a. Sub-optimal effort with respect to grip strength is irrelevant to the primary area of complaint in this case: lower back pain. I find it telling that Dr. Kavanaugh’s validity testing revealed no validity issue with lower back range of motion testing (where AS says he is most limited by injury).

b. Neither Dr. Zabieliauskas nor Dr. Kavanaugh deny A.S.’s pain or its severity. Dr. Kavanaugh attributes “sub-optimal” effort due to pain or complaints of pain. He does not indicate that means that A.S. is feigning pain or that A.S. is not limited by pain in his ability to work: he rates A.S. as being able to meet the “sedentary industrial level” of work.

c. Neither Dr. Zarnett nor Dr. Zahavi ignored the possibility of exaggeration about pain by A.S. Dr. Zahavi noted the potential for “catastrophizing pain” but found A.S. credible nevertheless. I have no reason to believe that these physicians should not rely on their own clinical observations, and no reason to believe that the evidence they give is weak simply because they don’t draw the same negative inferences that Pafco does.

19My assessment of the evidence leads me to conclude on the balance of probabilities that A.S. meets both the pre- and post-104 tests for IRB eligibility. Overall, clear unequivocal statements by an applicant’s medical assessors relating directly to IRB criteria carry the day when the insurer’s medical evidence is compromised and its FAE evidence unclear. I find that the medical evidence in this case establishes enough proof of entitlement and that Pafco failed to refute it.

CONCLUSION

20A.S.’s appeal is allowed. A.S. is entitled to IRBs from November 25, 2014 to date and ongoing, with interest to be paid at the prescribed rate.

21My decision effectively extinguishes the issue of repayment to Pafco, because Pafco’s claim is based on paying IRBs “by mistake” after determining its position that A.S. was ineligible.

Footnotes

1. 1Pafco also claimed it continued the payments until March 9, 2015 in error and sought the repayment of the overpaid amount. However, the Tribunal found this issue was not properly before it and did not address it.
2. 217-005910 v Aviva General Insurance, 2018 CanLII 110920 (ON LAT), paragraph 15, submitted by Unifund
3. 3Job Site Analysis Report, February 20, 2014, by Dr. Michael Caterer, B.Kin (Hons), DC, FCCPOR(C), Chiropractic Physical and Rehabilitation Specialist, Kinesiologist I Ergonomist.
4. 4National Occupational Classification, Human Resources Development Canada, 1996.
5. 5Dr. Zabieliauskas’s findings were consistent in reports dated October 16, 2013 and February 20, 2014.
6. 6I do not find that evidence of A.S. having exaggerated the accident weakens his case. None of the reports I rely on to reach my decision involve head injury or allegations thereof (the emphasis being on back pain), and there is no evidence I can see in any of the reports that I read that assessor’s opinions were shaped by details of the accident or considerations of its severity. Assessors on both sides relied on clinical examination, AS’s description of neck and back pain, tests and review of medical documentation to reach their conclusions.