T.P. v. Wawanesa Insurance Company, 2020 CanLII 101742

Citation: T.P. vs. Wawanesa Insurance Company, 2020 ONLAT 18-003718/AABS

Released Date: 12/16/2020

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:

[T. P.]

Applicant

and

Wawanesa Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Janet S. Young, Counsel Fabio Longo, Counsel

For the Respondent:

Darrell P. March, Counsel

HEARD:

Via certified transcript of the In-Person Hearing conducted on January 28-30, 2019, in Toronto and on the evidence submitted.

OVERVIEW

1The applicant was injured in an accident on January 15, 2016, and sought various benefits, including an income replacement benefit (“IRB”), from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule'').

2Wawanesa paid the applicant an IRB from January 2016 until June 2016 based on the determination that he was substantially unable to perform the essential tasks of his pre-accident employment as a delivery driver for [Company]. Wawanesa terminated IRB payments when the applicant returned to work. The applicant worked modified duties between June and September 2016, and received income for same, before his employment was terminated by [Company]. The applicant then sought IRB from Wawanesa for the period September 15, 2016 to March 1, 2017 on the basis that he remained unable to perform the essential tasks of his pre-accident employment, which Wawanesa denied.

3The applicant submitted an application to the Tribunal for resolution of the IRB dispute, as well as several other issues.² An unsuccessful case conference resulted in the scheduling of a three-day in-person hearing for January 28-30, 2019, in Toronto. The issues in dispute were whittled down at the hearing but the IRB issue proceeded. Over the course of three days, the parties engaged with two witnesses and made their closing arguments. The parties also agreed to provide the hearing adjudicator with their respective positions on entitlement to a s. 10 award and costs via written submissions to follow the hearing.

4Unfortunately, the original adjudicator who presided over the three-day in-person hearing was unable to complete the decision. While the hearing was completed and the adjudicator heard testimony, made certain rulings and received submissions from the parties, a written decision was never delivered.

5In August 2020, the parties convened at two case conferences to determine the fairest, most efficient and cost-effective way to proceed. Fortunately, a court reporter was present at the in-person hearing, so a record of the proceedings existed. On consent, the parties agreed that the Tribunal would order certified copies of the hearing transcript and the hearing would proceed on the transcript and documentary evidence before a new adjudicator.

ISSUES IN DISPUTE

6The following issues remain in dispute:

i. Is the applicant entitled to receive an IRB in the amount of $400.00 per week for the period September 15, 2016 to March 1, 2017?

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

iii. Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is either party entitled to its costs?

result

7The applicant has not demonstrated his entitlement to an IRB in the amount of $400.00 per week for the period of September 15, 2016 to March 1, 2017. As no benefits are owing, it follows that no interest is payable under s. 51. An award under s. 10 of O. Reg. 664 is not appropriate and I decline to order costs under Rule 19.

ANALYSIS

Section 5(1) - IRB

8In order to receive payment for an IRB under s. 5(1)1(i) of the Schedule, the applicant must demonstrate that as a result of and within 104 weeks of the accident, his impairments resulted in a substantial inability to perform the essential tasks of his pre-accident employment. Under s. 6(1), an IRB is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his employment. The parties agree that the applicant bears the onus of proving entitlement to the IRB for the specific period in dispute on a balance of probabilities.

The parties’ positions

9The applicant’s position is that he was not able to return to all of his pre-accident full-time duties at any point before being let go by [Company]. Even though he had returned to modified employment in June 2016, the applicant argues that at no point in the three months between his return and his employment termination in September 2016 had he progressed to being substantially able to complete all of the essential tasks of his employment. Chiefly, he submits that while he was able to work on modified duties from June 2016 to September 15, 2016, these duties were limited to driving the delivery truck, carrying pillows and sheets and, on one day, stuffing delivery “booties” at the warehouse. He argues that these modified duties, while part of his employment, are not the essential tasks of his pre-accident employment as contemplated by s. 5(1), which actually entailed moving heavier items up to 70 lbs., such as mattresses and adjustable bed frames. He relies on the recommendation of his family physician, Dr. Mark, who approved his return to employment on the condition that he be able to lift 70 lbs., a condition the applicant submits there is no evidence to support he could do either before, during or after the period in dispute. Further, the applicant submits that there is no evidence he worked at a similar pre-accident position during the IRB period in dispute and only now undertakes light driving jobs, as he is still hindered by accident-related pain. Finally, he submits that in May 2016, Wawanesa’s Insurer’s Examination (“IE”) assessors determined that he met the IRB test.

10In response, Wawanesa submits that the applicant has failed in meeting his burden to demonstrate entitlement as there is no evidence that the applicant met the IRB test for the specific and narrow period in dispute, being September 15, 2016 to March 1, 2017. It points to Dr. Mark’s recommendation that the applicant was able to return to work with no restrictions on July 4, 2016; the notes and records that reveal the applicant was showing significant bi-weekly improvement; its IE assessors’ determination that the applicant would progress to a return to work in the very time period he did; that there is no objective medical evidence to support the applicant’s subjective belief that he was substantially unable to perform his job duties during the period in dispute; that the applicant does not rely on an opinion from an occupational therapist where [Company] believed he could return to work; that the diagnostic imaging reveals no remarkable findings and the applicant’s impairments are soft-tissue in nature.

The applicant is not entitled to an IRB for the period in dispute

11On the transcript and evidence before the Tribunal, I find the applicant has not demonstrated that he met the IRB test for the period in dispute, being September 15, 2016 to March 1, 2017, as there is limited evidence to suggest that he suffered a substantial inability to perform the essential tasks of his employment during this specific period.

12To begin, there is no dispute that at the time of the accident, the applicant was employed at [Company]. Next, the IRB analysis requires engagement with the “essential” tasks of the applicant’s employment to determine whether he was substantially unable to perform them. While Wawanesa seemingly took issue with what constitutes the essential tasks of a delivery driver for [Company], on the evidence, I am prepared to accept that lifting mattresses and bed frames onto and off of a delivery truck, carrying heavier items up to 70 lbs. up three flights of stairs, driving the delivery truck and engaging with customers over 8-13 hour shifts are, generally, the essential tasks of employment. On the applicant’s testimony, I also accept that his modified duties entailed driving, carrying pillows and sheets, and one day in the warehouse packing booties. On the testimony and the pay stubs in evidence, it appears that the applicant was required to work four days per week, beginning in the morning, and that overtime was readily available.

13There is also no dispute that, at all times post-accident, during the period in dispute and to date, the applicant was able to operate a vehicle safely and on his own accord. Indeed, he lived in [City 1], attended at [Hospital], lived with his mother for a time and visited Dr. Mark in [City 2] and worked at [Company] in north [City 3]. Similarly, there is no dispute that when he returned to work on modified duties, his main role was to drive the delivery truck, which is obviously an essential task in the role of a delivery driver. In a similar vein, there is seemingly no dispute that the applicant—being 6’5 and with an impressive history of heavy weight-lifting—was able to carry sheets and pillows, interact with customers, etc.

14The focus instead is on the applicant’s ability to lift and carry. The applicant maintains that at all material times post-accident, he has never been able to again lift 70 lbs. and therefore he is substantially unable to perform an essential task of his employment. There is testimony and evidence that he had returned to the gym and was lifting light weights, but subjectively, the applicant asserts he has never returned to his pre-accident weight-lifting abilities due to his back pain. To his credit, the IE assessments arranged by Wawanesa in May 2016 confirm this, as both reports agreed that the applicant, at that time, was unable to perform the activities of his employment and would require between 6-12 weeks to get back to full duties, as his impairments were largely soft-tissue in nature. Dr. Fern, specifically, opined that the applicant would be able to return within six months of the accident. Similarly, the notes of Dr. Mark, echoed in his testimony, confirm that the applicant’s pain was causing him functional impairment during the period when Wawanesa was paying IRB, until June 2016.

15However, Dr. Mark’s records from June 2016 forward present a rather positive outlook on the applicant’s progress, which supported Dr. Mark’s recommendation that the applicant could return to work at first on modified duties on June 1, 2016, and then with no restrictions whatsoever on July 4, 2016, which I find is in line with Dr. Fern’s opinion. Dr. Mark makes no referrals for treatment or to a specialist and he did not order any diagnostic imaging during this time or after. Indeed, the applicant was receiving treatment and Dr. Mark’s records indicate that he reported being 85% better in early July 2016, then 90% better by July 28, 2016, and that he had 90% range of motion in his back. The notes indicate that the applicant was “managing” and attending the gym for light workouts, had returned to mostly full-time work, that he may only need one more month of treatment and that his mental health was good. Dr. Mark indicates that modified duties were acceptable, including lifting, bending, sitting, climbing, driving, pushing, standing, walking and office duties.

16With two exceptions, the applicant submits he was unable to work during the period in dispute. He allegedly worked for a single day in a restaurant and for approximately 80 hours as a light delivery driver. However, in September 2016, Dr. Mark indicates the applicant’s functioning was “quite high” and that he needed a doctor’s note for an ongoing custody dispute. It appears that the applicant notified Dr. Mark that he was fired from [Company] as a result of a licensing issue. By November 2016, the notes reveal that his neck and back ranges of motion were at an 8-9/10 and he was doing well emotionally. In January 2017, Dr. Mark administered the Sheehan Disability Scale to see how the applicant was able to function emotionally at work, school, in social or leisure and family or home responsibilities. The applicant scored 4 out of 30, which Dr. Mark indicated was a sign of very good function. Dr. Mark’s notes for the period in dispute do not provide evidence that the applicant is unable to perform his essential tasks. Further, the pain severity and pain interference results reveal scores in the mild range.

17While I accept that the applicant was not working during the period in dispute, I find the applicant has provided no objective medical evidence to support that he was not working as a result of his accident-related pain or that his accident-related pain was preventing him from engaging in his essential pre-accident tasks. Indeed, at the hearing, he gave testimony that he was actively seeking a driving job during this period, which I agree with Wawanesa infers that he believed he was capable. It appears that the applicant’s entire argument that his alleged inability to perform the essential tasks of his employment for the period in dispute is based on his own, subjective self-reporting that he has continuously been unable to lift 70 lbs. post-accident, or more specifically, would never have been able to lift mattresses and adjustable bed frames during the period in dispute. In my view, this position is problematic, as it is his burden to prove that he met the IRB test. With respect, it is not enough for the applicant to simply say he cannot do something, there must be objective evidence of that inability.

18In his closing submissions, the applicant submitted the Tribunal case 17-002651 v. Aviva General Insurance,³ which dealt with IRB entitlement. While Tribunal cases are not binding on me, I agree with Wawanesa that the case actually works against the applicant on the facts because the Tribunal found that it was not enough for the applicant to simply believe that he could not continue to work in order to receive an IRB. Indeed, I agree that there must be more evidence of a substantial inability to perform the essential tasks than the applicant’s self-reporting, because self-reporting a substantial inability benefits the applicant. There is no actual requirement for what that type of evidence should be, but at minimum, I suggest it should come in the form of an objective medical opinion or diagnostic imaging or an occupational therapy report that would contemporaneously support the applicant’s subjective reporting. The applicant has produced no such evidence, other than his contention that he cannot lift 70 lbs.

19Instead, the applicant points to rather dated evidence that does not address the actual narrow IRB period in dispute here, as his submissions focused on post-accident documentation: his Disability Certificate from February 2016; hospital records from January 2016; the notes of Dr. Mark from the spring of 2016 when he was receiving the IRB; and the IE reports from April and May 2016 that found IRB entitlement but for a period that is not even in dispute. In any event, on review, I find all of the evidence the applicant relies on seemingly agreed, at various points in his recovery timeline, that he suffered from soft-tissue injuries that would follow the normal course of recovery of approximately 9-12 weeks or, in Dr. Fern’s case, six months from the date of injury. I agree with Wawanesa that for the purposes of this narrow dispute window, it is inappropriate and generally not compelling to rely on an assessment, comment or opinion delivered post-accident because it is not applicable to what took place over the following months and, ultimately, inapplicable to the applicant’s ability to perform his essential work tasks as of September 15, 2016 and beyond. The Tribunal would have benefitted from medical evidence from this specific period.

20In this vein, I find the applicant has not demonstrated why his soft-tissue injuries have persisted for so much longer and allegedly been so much more debilitating than all of the medical professionals opined they would be, nor has he explained why his self-reporting of pain should be afforded so much weight where he has furnished no contemporaneous medical evidence for the period in dispute. For example, the x-rays of the wrist and back in evidence revealed unremarkable findings and no evidence of musculoskeletal impairment or fractures. Dr. Dindar, neurologist, found nothing remarkable, only migraines, which was confirmed by the MRI. Dr. Mark, whom the applicant visited with some frequency post-accident and called as a witness at the hearing, conducted no objective testing, made no referrals to other specialists, recommended a complete return to work as of July 4, 2016 and did not engage the applicant with an occupational therapist to assess that return to work. Indeed, at the hearing, Dr. Mark conceded that all of the pain index scores in his notes are based solely on the applicant’s self-reporting on questionnaires and not on any objective physical or diagnostic testing.

21On the medical evidence, I find the applicant has provided nothing to objectively demonstrate that he could not substantially perform the essential tasks of his pre-accident employment between September 15, 2016 and March 1, 2017. The applicant earned employment income, and likely overtime pay, from [Company] from June 2016 to his employment termination. There is no evidence that the applicant’s employment was terminated by [Company] due to his performance or his inability to perform, but rather, his employment termination was related to a licensing issue and the applicant’s union made unsuccessful submissions on his behalf. On these facts, even Dr. Fern’s s. 44 IE opinion on which the applicant relies was rather accurate, as the applicant returned to modified duties within six months of the accident, worked for the summer and then was terminated.

22Accordingly, I find it is not enough for the applicant to simply say that he cannot do an essential task in order to receive an IRB after his employment was terminated, but rather, the applicant must provide objective medical evidence of a substantial inability to perform that essential task. For these reasons, I find the applicant has not met his burden and is therefore not entitled to payment of an IRB in the amount of $400.00 for the period in dispute. As no benefits are overdue, it follows that no interest is payable under s. 51.

Section 10 award

23The applicant also sought an award under s. 10 of O. Reg. 664 via written submissions post-hearing. Under s. 10, the Tribunal may award up to 50% of the total benefits paid if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

24However, having determined that the applicant has not demonstrated his substantive entitlement to the IRB, it follows that an award is not appropriate, as the Tribunal cannot award up to 50% of zero. In any event, for completion, I find no evidence that Wawanesa was “imprudent, stubborn, inflexible, and unyielding” as alleged or that it unreasonably withheld or delayed the payment of IRBs, as it remitted payment for same for six months post-accident and terminated payment when the applicant returned to work. Dr. Fern’s opinion that the applicant could return within six months of the accident was supported by Dr. Mark’s timeline and, given the fact the applicant actually returned on modified duties within six months, I find it was reasonable for Wawanesa to rely on that opinion.

Costs

25Finally, both parties sought their costs under Rule 19 of the Tribunal’s Common Rules of Practice and Procedure and agreed to provide written submissions following the in-person hearing. Under Rule 19, a party may request costs where another party in the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

26Wawanesa submits that the applicant acted unreasonably, frivolously, vexatiously, and in bad faith throughout the proceeding such that it ought to be entitled to its costs of $15,277.25, which it argues is a fraction of its actual costs incurred in this matter and in accordance with Legal Aid rates. Wawanesa asserts that there has been a pattern of repeated and unexplained delay, late notice, and late filing of evidence in this matter from the applicant. It further submits that the applicant failed to provide a number of productions and withdrew eight of the issues prior to the hearing without notice.

27In response, the applicant submits that he complied with all production requests; that costs are an exceptional remedy; that the purpose of costs is not to compensate parties for the cost of bringing or defending claims or to punish; that withdrawal of issues alone is not a basis for costs; that costs are capped at $1,000.00 per day under Rule 19.6 and, last, submits that Wawanesa acted unreasonably, frivolously, vexatiously and in bad faith. The applicant submits that he should be granted an order of costs in the amount of $500.00 to deter the conduct engaged in by Wawanesa and its counsel and to promote respect for the Tribunal’s process and participants.

28I decline to order costs. While I am alive to the submissions of the parties, costs are an exceptional remedy at the Tribunal and are not meant to punish an unsuccessful party nor reward the successful one. Any production or timeline issues alleged did not interfere with my ability to carry out a fair and efficient determination on the transcript and evidence before me, given the circumstances. While I acknowledge that the circumstances leading to my decision are unique, I find no evidence that either party acted unreasonably, frivolously, vexatiously, or in bad faith to attract a costs order.

ORDER

29The applicant is not entitled to payment for an IRB in the amount of $400.00 per week as he has not demonstrated that he met the test under s. 5(1) for the period in dispute. As no benefits are overdue, no award or interest is payable, and I decline to order costs under Rule 19.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2The Case Conference Order identified 11 total issues in dispute. At the hearing, the applicant withdrew eight of the issues, including a determination under the Minor Injury Guideline and seven treatment plans. What proceeded at the in-person hearing were the IRB, a s. 10 award and interest, plus the issue of costs under Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, raised at the hearing.
3. 32018 CanLII 13150 (ON LAT).