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.C
Applicant
and
TD General Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Chloe Lester, Vice-Chair
APPEARANCES:
For the Applicant:
[T.C.], Representing Himself
For the Respondent:
Kevin Temple, Counsel
HEARD:
November 4, 2019
OVERVIEW
1The applicant, TC, was involved in a car accident on April 3, 2016 and alleges he sustained physical and psychological injuries. Because of those injuries, he stopped working.
2The applicant applied for income replacement benefits (“IRB”) from the respondent, TD General Insurance Company, in accordance with the Schedule.1
3The respondent paid IRBs until January 20, 2017, at which time, based on s. 44 Insurer’s Examinations (“IE”), it determined that the applicant was longer entitled to the benefit because he did not suffer from a substantial inability to perform the essential tasks of his employment.
4The applicant disagreed and filed an application for dispute resolution with the Tribunal.2
BACKGROUND
5The applicant was 19 years old at the time of the accident. He was driving southbound on [a major highway] in [a major city] in a very bad snowstorm when his car spun out of control. Now facing the opposite direction of the flow of traffic, the applicant was hit by a pick-up truck on the front driver side of the vehicle.
6The applicant claims for the last two years he has been seeing doctors and therapists to treat his accident related injuries.
7At the time of the accident, the applicant was working approximately 6-7 days a week, more than full time hours, as a cook, cashier and supervisor at [a restaurant] and in the construction field.
ISSUES IN DISPUTE
8The questions to be determined are:
(i) is the applicant entitled to receive a weekly income replacement benefit from January 20, 2017 onward? and,
(ii) is the applicant entitled to interest?
RESULT
9I find the applicant is not entitled to the benefits being claimed.
ANALYSIS
10The applicant submits that both his physical and psychological injuries prevent him from working at both of his jobs he had prior to the accident.
11The respondent submits that the applicant has not produced any pre-accident or post-accident medical records and, therefore, has not produced enough medical evidence to meet the IRB test. The respondent relies on its s. 44 IEs that opine that the applicant could return to work.
Is the applicant entitled to a weekly income replacement benefit?
12The applicant stopped working after the car accident because of the injuries he sustained. The applicant claims entitlement to an IRB in the amount of $400.00 per week from January 20, 2017 onward.
13The applicant submits he meets the test for entitlement to an IRB for both the pre- and post-104 week periods because:
(i) He used to be a very hard worker, and;
(ii) He no longer can perform any heavy lifting activities because of the injuries to his left wrist. He also alleges he suffers from headaches, psychological issues and chronic pain.
14The respondent denies entitlement to the IRB because the insurer’s assessors opined that he did not meet the test for the benefit.
15After the accident but before 104 weeks post-accident, the applicant needs to meet one test for entitlement to IRB; and after 104 weeks post-accident, he needs to meet a more stringent test. The applicant has the onus to prove entitlement. The applicant claims that he meets both tests.
16For an employed person to be entitled to a pre-104 week IRB, s. 5 (1)(1)(i) of the Schedule states that the applicant must suffer a substantial inability to perform the essential tasks of his pre-accident employment. To meet the pre-104 week IRB test, a comparison needs to be made to determine the following:
(i) what were the injuries resulting from the accident?
(ii) what are the essential tasks of the applicant’s employment? and,
(iii) does the applicant suffer a substantial inability to complete them?
What were the applicant’s accident related injuries?
17As a result of the accident, I find the applicant suffers from:
(i) strains and sprains of various body parts. This is noted in the various treatment plans, Disability Certificates (OCF-3) and in the respondent’s General Practitioner assessment report.
(ii) psychological symptoms. The applicant testified to the various symptoms he is experiencing, and the symptoms are noted in the respondent’s psychological assessment report.
(iii) and lastly, fibromyalgia. The applicant produced a letter from a Rheumatologist that confirmed the diagnosis.3
What were the applicant’s essential tasks of his employment?
18At the time of the accident, the applicant worked as a cook, cashier and supervisor at [a restaurant] and in the construction field.
19The parties agree that the essential tasks of the applicant’s employment at [a restaurant] was to prepare chicken for cooking, chopping the chickens, making salads, working the cash register, washing the dishes, cleaning the fridge and dealing with customers and employees.
20The parties also agree that the essential tasks of the applicant’s employment in construction was installation of styrofoam, sanding walls, applying a base coat, carrying 40 pounds of concrete packs or other material, applying and mixing glue to concrete, standing for long periods and using different tools.4
Does the applicant suffer a substantial inability to perform the essential tasks of his employment?
21I find that the applicant does not suffer a substantial inability to perform the essential tasks of his employment. There is no doubt both of his occupations were physical in nature, including standing for long periods at a time, lifting heavy objects, and requiring a lot of dexterity. But absent of medical documentation to support the applicant’s testimony, I do not have enough evidence to find that on the balance of probabilities he meets entitlement to the benefit.
22The applicant claims it is mostly his physical injuries that prevent him from working. He refers to his headaches, back issues and wrist pain. This statement is consistent with what the applicant reports to the respondent’s s.44 IE assessors. Two of the s. 44 assessors, a General Practitioner and a Kinesiologist, found that the applicant suffered with nothing more than strains and sprains and, other than his neck, most of his body’s range of motion were within normal limits.5 The diagnostic testing taken within the two years of the accident revealed normal findings for the skull, left wrist, cervical spine, and thoracic spine.6 In review of this medical evidence, I cannot see how the strains and sprains, mostly all being within normal range of motion limits would prevent the applicant from returning to work.
23That being said, the applicant continued to complain of pain and was eventually referred to a Rheumatologist in March 2018. The Rheumatologist found that the applicant suffers from significant depression and fibromyalgia possibly as a result of the accident. Even though the applicant suffers from fibromyalgia, the Rheumatologist letter does not state any functional limitations or restrictions that would prevent him from attending work. It even notes that the “fibromyalgia tender points were identified” but “other than that, there was nothing of any major consequence found”.7 Therefore, on that basis, I do not have enough evidence to support entitlement to the benefit.
24The witness’ testimony on behalf of the applicant suggests he is suffering from depressive symptoms, which is also noted in the s. 44 psychological IE report and the Rheumatologist’s letter. The Rheumatologist comments that the applicant is suffering from “significant depression”, but I do not have evidence to support a Rheumatologist can diagnose psychological conditions. Even if the applicant is suffering from significant depression does not necessarily mean he is incapable of working. Absent of further medical documentation, I do not have enough evidence to suggest the applicant’s psychological symptoms are at a level that warrants entitlement to the benefit.
25The applicant mainly relies on the testimony of the witnesses to support his entitlement to IRB. I have no doubt that the applicant suffers from pain and psychological symptoms that have impacted his physical, social and emotional aspects of his life. The problem is that the medical evidence does not connect with what is being claimed through testimony. The applicant alleges there are depression issues, but I do not have a psychological opinion that he suffers from psychological symptoms or a diagnosis that limits his functional abilities or his ability to return to work. The same is true when it comes to the physical impairments being claimed.
26In order to be entitled to an IRB, s. 5 (1) of the Schedule requires the applicant to prove that he has a substantial inability to perform the essential tasks of his jobs. This is a high bar. In order to meet this test, an applicant must prove that, on the balance of probabilities, he suffers a substantial inability to perform the essential tasks of his jobs. Based on the essential tasks of both jobs, I can see how he may not be able to perform some essential tasks, for example, carrying concrete bags weighing over 40 pounds, but the applicant has not proven that he is incapable of completing the other essential tasks of his two jobs.
27Given the evidence, the applicant does not meet the test for IRB.
Does the applicant suffer a complete inability to engage in any employment?
28Since I have found that the applicant does not meet the first test, on the balance of probabilities, he cannot meet the more stringent post-104 week IRB test found in s. 6(2)(b) of the Schedule. This test requires the applicant to suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
CONCLUSION
29I find the applicant does not meet the test for IRB. His application is dismissed.
Released: February 14, 2020
_______________________
Chloe Lester
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
- Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
- Respondent’s Brief Tab 10, Tab 14 and Rheumatologist letter March 23, 2018
- Respondent’s Brief Tab 17 s.44 IE psychologist report
- Respondent’s Brief Tab 17 s.44 IE General Practitioner and Kinesiologist Report
- Respondent’s Brief Tab 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 35
- Rheumatologist letter March 23, 2018