G. K. v. Coseco Insurance, 2020 CanLII 34433

Released Date: April 7, 2020

Tribunal File Number: 18-007434/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:

G. K.

Applicant

and

Coseco Insurance

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Applicant:

Amelio The, Counsel

For the Respondent:

Sharla B. Bandoquillo, Counsel

HEARD: In Writing

February 23, 2020

OVERVIEW

1On October 17, 2015, the applicant, G.K., was involved in a motor vehicle accident.

2The applicant applied for and was denied income replacement benefits (“IRB”) and medical benefits including two treatment plans for psychological services, two treatment plans for chiropractic services, a treatment plan for physiotherapy services, and treatment plans for a chronic pain assessment, a functional abilities assessment and a social work assessment.

3The applicant asserted that, as a result of the accident, she sustained physical and psychological impairments, including chronic pain syndrome and adjustment disorder, that take her outside of the Minor Injury Guideline (the “Guideline” or “MIG”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). She further asserted that she suffered an impairment that renders her substantially unable to complete the essential tasks of her pre-accident employment.

4The denial was based upon the respondent’s position that the applicant’s injuries were predominantly minor injuries, and thus, treatment of them fell within the MIG. The respondent also determined that an IRB was not payable as the applicant did not meet the requisite test.

5The applicant disagreed, and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

6With regards to the IRB, I am required to determine whether the applicant is substantially unable to perform the essential tasks of her pre-accident employment.

7With regards to the MIG determination, if the applicant’s position is correct, then I must address if the medical treatments claimed are reasonable and necessary. If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES IN DISPUTE

8The following issues are in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 treatment limit within the Guideline? If the applicant’s injuries are not within the Guideline, then I must determine the following issues:

(a) Is the applicant entitled to receive medical benefits in the amount of $2,028.72 for psychological services recommended by Novo Medical Services Inc. in a treatment plan submitted August 12, 2016, and denied by the respondent on August 24, 2016?

(b) Is the applicant entitled to receive medical benefits in the amount of $2,547.13 for chiropractic services recommended by Progressive Rehab Clinic Inc. in a treatment plan submitted September 27, 2016, and denied by the respondent on September November 9, 2016?

(c) Is the applicant entitled to receive medical benefits in the amount of $1,231.81 for chiropractic services recommended by Progressive Rehab Clinic Inc. in a treatment plan submitted February 9, 2017, and denied by the respondent on February 10, 2017?

(d) Is the applicant entitled to receive medical benefits in the amount of $2,241.29 for physiotherapy services recommended by Progressive Rehab Clinic Inc. in a treatment plan submitted June 5, 2017, and denied by the respondent on June 14, 2017?

(e) Is the applicant entitled to receive medical benefits in the amount of $1,440.92 for a functional abilities assessment recommended by Novo Medical Services Inc. in a treatment plan submitted August 23, 2016, and denied by the respondent on August 24, 2017?

(f) Is the applicant entitled to receive medical benefits in the amount of $3,341.87 for psychological services recommended by Novo Medical Services Inc. in a treatment plan submitted September 25, 2017, and denied by the respondent on September 25, 2017?

(g) Is the applicant entitled to receive medical benefits in the amount of $2,200.00 for a chronic pain assessment recommended by Novo Medical Services Inc. in a treatment plan submitted October 23, 2017, and denied by the respondent on March 12, 2018?

(h) Is the applicant entitled to receive medical benefits in the amount of $2,090.00 for a social work assessment recommended by Novo Medical Services Inc. in a treatment plan submitted October 27, 2017, and denied by the respondent on November 8, 2017?

ii. Is the applicant entitled to receive income replacement benefits in the amount of $400 weekly for the period of August 10, 2016 to date and ongoing, denied by the respondent on August 10, 2016?

iii. Is the applicant entitled to interest on any overdue payment of benefit?

iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?

RESULT

9Based upon a review of the totality of the evidence and submissions, I find that:

a. the applicant’s injuries do not fall within the Guideline;

b. the applicant is entitled to the medical benefits in all the treatment plans at issue, except the treatment plan in the amount of $2,090.00 for a social work assessment;

c. the applicant is entitled to receive income replacement benefits in the amount of $400 weekly for the period August 10, 2016 to date and ongoing;

d. the applicant is entitled to interest on the incurred amounts for the allowed treatment plans as per the Schedule; and

e. the applicant is not entitled to an award under Regulation 664.

PRELIMINARY ISSUE

10In her reply submission, the applicant objects to Tabs 33 and 34 of the respondent’s submissions as they include surveillance reports, dated June 12, 2017 and October 23, 2018, that were previously undisclosed to the applicant. The applicant notes that any documents to be relied upon by the parties were to be served in accordance with the schedule set out in the case conference order. By no later than March 5, 2019. The applicant asserts that it is highly improper for the reports to be served for the first time in the respondent’s hearing submissions. The applicant submits that she has not been afforded the proper opportunity, or any opportunity, to evaluate the substantive contents of the reports.

11I agree with the applicant that the reports should have been provided to the applicant according to the timelines set forth in the case conference order. The respondent provided the reports after the applicant had already made her initial submissions for the hearing. I find that this did not afford the applicant sufficient time and opportunity to review and evaluate the reports.

12Given the above, I have not considered the reports in Tabs 33 and 34 or the respondent’s submissions with regards to the reports.

ANALYSIS

I. The Applicability of the Guideline

13The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1). Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.

14In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisional Court reviewed the minor injury provisions in the Schedule and found that the onus is on the applicant to prove on a balance of probabilities that her entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries.

Did the applicant sustain predominantly minor physical injuries?

15Based upon the totality of the evidence presented, I find that the evidence establishes that the applicant sustained a physical impairment that is not predominantly a minor injury. I find that her injuries do not fall within the definition of a “minor injury” as listed in subsection 3(1) of the Schedule. The medical evidence establishes that the applicant suffers from chronic pain syndrome and also has functional limitations, and that her physical impairments take her outside of the MIG.

16I found particularly persuasive and comprehensive the orthopaedic assessment of Dr. Tajedin Getahun, orthopaedic surgeon, dated February 28, 2019, who opined that the applicant’s presentment and documentation is consistent with the development of chronic pain syndrome. He states that her presentment satisfied the American Medical Association’s Guides 4th Edition criteria for a diagnosis of chronic pain syndrome as she satisfies the duration criteria, the dramatization criteria, the drugs criteria and the dysfunction criteria. He also found that the documentation indicates the psychological sequelae which, in his opinion, satisfy the depressive criteria. He advises that, according to the AMA Guides 4th Edition, the presence of two or more diagnostic criteria is considered to establish a presumptive diagnosis of chronic pain syndrome. He recommends her enrolment in a multidisciplinary chronic pain program that should include a cognitive and behavioural modification component along with a rehabilitative component.

17Dr. Getahun observed restricted range of motion in the cervical and arms flexion, and restricted upper extremity range of motion. Dr. Getahun diagnosed: chronic myofascial strain of the cervical spine and likely aggravation of pre-existing degenerative changes, chronic myofascial strain of the lumbosacral spine and aggravation of pre-existing degenerative changes, chronic bilateral shoulder strain, possible rotator cuff tear, and aggravation of pre-existing degenerative changes of the knees. He based his diagnosis upon a number of testing methods, including range of motion testing, physical examination and an interview.

18I also find that the applicant’s chronic pain has impacted her activities of daily living. Dr. Getahun noted that the applicant reports restrictions on performing her self-care duties. She continues to use a modified bathtub as she has difficulty standing in the shower. She continues to take longer to dress and groom herself and occasionally requires the assistance of her daughter or daughter-in-law to dress. Her walking, sitting and standing tolerances have diminished due to her ongoing pain. She no longer does the dishes, laundry or floor cleaning and relies upon her children to complete these tasks. Dr. Getahun notes that her injuries are serious and continuously interfere in her usual activities of daily living and self-care.

19Further, the Functional Abilities Evaluation dated September 1, 2017 (the “FAE”) from Dr. Amir Owliaei, chiropractor, states that the applicant has not yet met all the requirements/tolerance that are associated with her functional independence at home, including housekeeping duties without experiencing pain in her neck, low back, knees and shoulder. She continues to require the assistance of her family members to help with daily housekeeping chores. The FAE notes that full scale pre-accident workload and housekeeping responsibilities cannot be tolerated due to symptom aggravation and significant pain.

20The respondent submits that the applicant has soft tissue injuries and their sequelae only, and has provided no compelling evidence that she developed chronic pain, and further that chronic pain is not definitely excluded from the MIG and she must still demonstrate that her chronic pain is not a sequelae of the soft tissue injuries. The respondent further submits that Dr. Getahun made a presumptive diagnosis of chronic pain syndrome and that the diagnosis has not been formally made. I do not agree with the respondent’s assertions. First, I note that Dr. Getahun states that the applicant’s “presentation and documentation is consistent with development of chronic pain syndrome.” Dr. Getahun relies upon the AMA Guides 4th Edition, and finds that the applicant satisfies the duration criteria, the dramatization criteria, the drugs criteria, the dysfunction criteria, and the depressive criteria. I note that only two diagnostic criteria are needed. I find that the applicant suffers from chronic pain syndrome, and that Dr. Getahun opinion is consistent with the applicant’s ongoing condition as evidenced in her medical records. The evidence establishes that the applicant has consistently complained about her ongoing pain symptoms to her family physician and various specialists, and consistently sought medical attention. I find that her physical impairment is more serious than a “minor injury”.

21Second, based upon the evidence presented, I do not find that the applicant’s chronic pain can be treated under the MIG, or is a sequela of soft-tissue injuries. Instead, a multidisciplinary chronic pain program is required as recommended by Dr. Getahun. I note that the report of Dr. Getahun states that the applicant’s accident-related injuries constitute permanent and serious impairment of important physical functions, including impaired sitting, standing and walking tolerances and impaired ability to lift and carry. She is noted as having painful, restricted range of motion of the cervical spine, lumbar spine and both shoulders and knees which limit her ability to perform self-care, household duties, and to return to gainful employment. I find that the applicant’s chronic pain is not captured by the Schedule’s minor injury impairment level and that her physical impairments take her outside of the MIG.

22A review of the applicant’s family doctor’s, Dr. Parvinder Singh, records after the accident reveal her ongoing pain symptoms. Dr. Singh repeatedly notes the applicant’s ongoing neck and back pains, ongoing pains and swelling of left shoulder, rotator cuff tear, stiff upper back, tenderness in neck and back muscles and increased pain in right thumb since the accident. The applicant asserts that Dr. Singh has prescribed various pain medications over the years to manage her pain symptoms, and, given her ongoing symptoms, by December 2017 had assessed her with chronic back sprain.

23The applicant asserted that due to ongoing pain and restrictions, Dr. Singh referred the applicant to diagnostic imaging:

A January 13, 2016 left shoulder ultrasound with regards to her supraspinatus tendon notes: “there is a longitudinal fluid collection measuring about 5 mm in length x 1 mm in width that constitutes a focal tear of the tendon that extends to the articular surface to the tendon, but does not quite reach the bursal surface of the tendon and I believe represents a high-grade vertical tear in this region.”
An October 7, 2017 x-ray of her lumbar spine notes: “moderate to severe DDD at L5-S1 with grade ½ anterolisthesis on S1. No acute findings”.
A May 9, 2018 left shoulder ultrasound notes: “there is a 7 x 4 x 1 mm intrasubstance linear tear of the supraspinatus tendon in the background of tendinosis.”

24I found particularly persuasive the objective diagnostic testing on January 13, 2016 of the applicant’s left shoulder, taken almost three months post accident, which showed a partial tear of the supraspinatus tendon. In response to this ultrasound report, the respondent submits that there is no causal connection between the applicant’s assertion of a partial tear of the left supraspinatus because it is highly atypical to sustain a single rotator cuff muscle tear from trauma. The respondent relies upon the report of Dr. Michael Ko, physiatrist, dated August 8, 2016, who states that a trauma significant enough to cause a rotator cuff tear will affect not just the supraspinatus but the subscapularis and infraspinatus as well. I note Dr. Ko does not provide any citation, explanation or clarification of what investigation was undertaken to arrive at this conclusion. I do not find Dr. Ko’s assertion in this regard persuasive.

25I also did not find persuasive the medical report of IE assessor Dr. Bob Karabatos, orthopaedic surgeon, dated March 5, 2018, who diagnosed the applicant with “some soft tissue injuries” and states that “today’s examination was replete with non-organic findings.” Dr. Karabatos provided no further details with regards to the “non-organic findings.” I further note that Dr. Karabatsos report is silent on the issue of causation and he does not comment on the rotator cuff tear as evidenced in the January 13, 2016 left shoulder ultrasound report which was provided to him.

26The respondent further asserts that the applicant must show that she would not have suffered the impairment “but for” the subject accident. I find that the applicant has met this burden. She has provided evidence that despite some medical conditions, including hypertension, headaches with decreased sleep, and pain symptoms, she was largely functional without restrictions in her home and work life. As set forth in the report of Dr. Getahun, since the accident the applicant has experienced ongoing pain symptoms and functional restrictions and has been unable to return to work. Dr. Getahun notes that the accident related injuries constitute permanent and serious impairment of important physical functions. The applicant is noted as having painful, restricted range of motion which has resulted in impaired sitting, standing and walking tolerances and impaired ability to lift and carry.

27I find that the medical evidence establishes that the applicant suffers from chronic pain syndrome that is not a minor injury and is not a sequela of the soft-tissue injuries she sustained as a result of the accident.

28In addition, even if I am wrong that the applicant suffers from chronic pain syndrome, I find that the medical evidence establishes that she has physical impairments and functional limitations that take her outside of the MIG. On a balance of probabilities, the applicant has provided compelling evidence that her physical impairments are not a predominantly minor injury.

29As I have found that the applicant’s physical injuries do not fall within the Guideline, I will not undertake an analysis or make a finding on whether the applicant has a pre-existing medical condition that would prevent maximal recovery under the MIG or whether the applicant has a psychological impairment that would take her outside the MIG. I do note that although the applicant references her pre-accident condition, she does not pursue the argument of a pre-existing condition that would prevent maximal recovery.

II. The Treatment Plans

30I must now determine whether the claimed treatment plans are reasonable and necessary. The onus is on the applicant to show that each treatment plan is reasonable and necessary.

a. Treatment plans for psychological services

31I find that the applicant has met her burden in demonstrating that the treatment plans for psychological services are reasonable and necessary.

32In denying the benefit, the respondent relied upon the IE psychological assessment of Dr. Louise Koepfler, psychologist, dated August 19, 2016, who determined that there was no sufficient or reliable data upon which to base a DSM-IV diagnosis given the applicant’s tendency to magnify her difficulties on paper-pencil testing, the lack of congruence between her reported injuries and the nature of her accident and her failure to acknowledge premorbid complaints of pain and emotional distress. Similarly, IE assessor Dr. Mehrdad Pojhan, psychologist, in his report dated March 5, 2018, states that a definitive diagnosis was not possible given the applicant’s lower than expected scores on two performance-based tests of symptom validity, and the lack of reliability and validity of her scores on the Reynolds Depression Screening Inventory and the Pain Patient Profile.

33By contrast, Dr. Romeo Vitelli, psychologist, in his psychological assessment report dated August 10, 2016, concludes that the applicant is experiencing significant adjustment disorder symptoms relating to her pain and related issues, and that she meets the criteria for adjustment disorder with mixed anxiety and depressed mood, and specific phobia. Dr. Vitelli recommends cognitive and behaviour therapy to address her chronic pain and adjustment problems.

34Regardless of whether or not the applicant has been diagnosed with adjustment disorder, depression or anxiety, or specific phobia, I note that the medical evidence demonstrates that she is experiencing mental health concerns and taking medication prescribed by her family physician to assist. The applicant reports that in the past counselling session were helpful in improving her level of psychological and social functioning.

35I am further convinced by the FAE which recommends psychological intervention to address the applicant’s psychological reaction to the pain experienced as well as investigating and possibly enhancing her outlook, state of mind and motivation levels towards getting back to her pre-accident functional status.

36More importantly, Dr. Getahun recommends a multidisciplinary chronic pain program to assist the applicant that should include a cognitive and behavioural modification component along with a rehabilitative component. As I have found that the applicant suffers from chronic pain syndrome, I am persuaded by Dr. Getahun that in addition to a rehabilitative component, a treatment plan addressing cognitive and behavioural modification is reasonable and necessary.

37I find the psychological treatment plans are reasonable and necessary.

b. Treatment plans for chiropractic services and physiotherapy services

38The applicant submits that her family physician and assessors recommend physical treatments as she struggles to function with her medical condition and pain symptoms despite taking significant medication. She asserts that physical treatments provide temporary alleviation of symptoms and temporary improvement in her level of functioning. The goals of these treatment plans are similar and include pain reduction, increased range of motion, increase in strength to achieve a return to activities of normal living, return to modified work activities, return to pre-accident work activities and reduce functional intolerance.

39I find that pain reduction which increases range of motion and strength are reasonable treatment goals for the applicant to manage her ongoing pain. I find these treatment plans to be reasonable and necessary.

c. Treatment plan for a chronic pain assessment and a functional abilities assessment

40In denying the benefits, the respondent asserted that the applicant’s injuries fell within the MIG and Dr. Ko opined that there was no objective evidence of ongoing impairment. The respondent also asserted that from a psychological perspective there was no valid or reliable data to conclude that the applicant suffered from an impairment that would remove her from the MIG.

41I find that the medical evidence shows that the applicant has ongoing pain symptoms that she has attempted to manage over the years with medication and other means. She also has functional limitations that may be addressed with a more comprehensive understanding of her pain symptoms and management of them. Her goals of pain reduction, increased range of motion, increase in strength so that she can return to her activities of normal living are reasonable. Both assessments would assist her in understanding her ongoing chronic pain symptoms and may lead to more effective treatments in the future.

42I find the treatment plans for a chronic pain assessment and functional abilities assessment to be reasonable and necessary.

d. Treatment plan for social work assessment

43The proposed treatment includes an assessment and testing of the applicant’s mental health and addictions. The applicant’s submissions do not provide sufficient details and particulars that would assist in evaluating the treatment plan and its function. I find that the applicant has not provided sufficient evidence to demonstrate that this treatment plan is reasonable or necessary. She has not met her burden.

44I am unable to conclude that this treatment plan is reasonable and necessary.

III. Eligibility to Receive Income Replacement Benefits

45Based upon the totality of the evidence presented, I find that the applicant has met the eligibility test for income replacement benefits (“IRB”). To be entitled to an IRB under ss. 5(1)2 of the Schedule, the applicant must establish on a balance of probabilities that, as a result of the accident, she suffered an impairment that renders her substantially unable to complete the essential tasks of her pre-accident employment. The burden is on the applicant and she has met her burden.

46For purposes of the analysis, I will divide the inquiry into three steps:

i. Was the applicant employed at the time of the accident;

ii. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment; and

iii. Causation

i. Employment at the time of the accident

47At the time of the accident the applicant was employed full-time as a packing finisher at [a car parts company]. She began working for the company in February 1989 and had been employed there for about 29 years.

ii. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?

48To answer the question, I must first determine the essential tasks of the applicant’s employment; and second, whether the applicant is substantially unable to perform those essential tasks.

(a) The essential tasks of the applicant’s employment

49The FAE lists the essential tasks of the applicant’s employment as working in an assembly line and installing wiring and lights on the roof of cars and packaging of materials (e.g., car roofs and car parts) for shipment. Her specific job demands include: continuous lifting, carrying, pushing, pulling, gripping/handling, standing, walking, reaching forward, bending/twisting, balancing and fine finger movements as well as frequent reaching overhead.

50The respondent’s expert Dr. Mehrdad Pojhan, psychologist, in his report notes that the applicant’s duties included finishing the products, and packing the products on the line. Her job requires her to stand on her feet for several hours with only two 15 minute breaks and a short lunch break. Dr. Pojhan further notes that the applicant denied lifting any heavy objects.

51Based upon the evidence presented, I find that the essential tasks of the applicant’s employment are more descriptively found in the FAE, and include: working on an assembly line and installing wiring and lights on the roof of cars and packaging materials, including car roofs and car parts, for shipment. In addition, as set forth in the report of Dr. Pojhan, the essential tasks require her to stand on her feet for several hours with only two 15 minute breaks and a short lunch break.

(b) Is the applicant substantially unable to perform the essential tasks?

52I find that the applicant has established on a balance of the probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment as a packing finisher. The applicant has provided convincing evidence regarding how her impairments specifically affects her functionality and her ability to perform the essential tasks.

53I do not agree with the respondent’s submission that the applicant’s current complaints and restrictions are not of a degree that would preclude a return to work. I do not find convincing the physiatry assessment report of Dr. Ko who notes that the applicant demonstrated a functional range of motion of the cervical spine and lumbar spine, full passive range of motion of the bilateral hips in external and internal rotation and bilateral knees in extension and flexion. Dr. Ko concludes that the applicant does not suffer a substantial inability to perform the essential tasks of her employment. I found that Dr. Ko’s did not undertake a sufficient analysis of the essential tasks of the applicant’s employment before coming to his conclusion.

54Instead, I found persuasive the comprehensive FAE which concludes that based upon observations, physical examination, data analysis and patient feedback, the applicant’s pre-accident job requires strength demands that are beyond the applicant’s capabilities at this time. The FAE notes that the applicant is unable to tolerate, without experiencing pain in her injured areas, the continuous lifting and carrying required in removing car parts from the boxes and placing them onto the table for installation. She is further unable to tolerate, without experiencing pain in her injured areas, the continuous bending/twisting required for gluing and connecting wires and lights onto car roofs and then packaging them for shipment. She can also not tolerate the prolonged standing required by working at her station. Pain and restrictions were observed in the applicant’s cervical and lumbar spine as well as the knee and shoulder joints range of motion testing.

55I am further convinced by the report of Dr. Getahun’s who notes that the applicant has suffered injuries that prevent her from performing the essential tasks of her pre-accident employment. Dr. Getahun notes that she has painful, restricted range of motion of her cervical spine, lumbar spine, both shoulders and knees that has resulted in impaired sitting, standing and walking tolerances and impaired ability to lift and carry. Further, that her injuries are permanent in that they have been continuous since the accident and have not resolved with treatments.

56The applicant’s treating family physician also states that the applicant suffered from a substantial inability to perform the essential tasks of her pre-accident employment.

57I find that the applicant has established on a balance of the probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment.

iii. Causation

58I find that the applicant has established causation. I rely upon and found convincing the report of Dr. Getahun. Dr. Getahun states that the applicant suffered direct injuries as a result of the accident which include myofascial strain of the cervical spine, lumbar spine, likely both shoulder, and possibly contusive injuries to her knees. Further, that her documentation indicated pre-existing complaints of neck, back, shoulder and knee pain and that in his opinion the accident aggravated her pre-existing pathologies. Dr. Getahun further notes that her accident-related injuries are continuously interfering with her ability to return to gainful employment.

59I find that the applicant has met her burden and established on a balance of probabilities that, as a result of the accident, she suffered an impairment that renders her substantially unable to complete the essential tasks of her pre-accident employment.

IV. Interest and an Award under Regulation 664

60The applicant is entitled to interest in accordance with the Schedule on those incurred overdue benefits that I have found the applicant entitled to.

61The applicant has not made any submissions on the issue of an award pursuant to Regulation 664. I do not find an award is warranted.

CONCLUSION

62After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I find that: