Released Date: 07/03/2020
Tribunal File No: 18-008127/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8. (“the Act”), in relation to statutory accident benefits
Between:
F.M.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Matthew M. Létourneau, Member
APPEARANCES:
For the Applicant:
F.M., applicant
Nisarq Munshi, counsel for the applicant
For the Respondent:
Catherine Zingg, Counsel for the respondent
Urdu Interpreter:
Farisa Asad
Heard In-Person:
July 31, 2019
OVERVIEW
1The applicant was involved in an accident on January 14, 2016. He claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”). The applicant was approved for income replacement benefits (“IRBs”) following the accident and continued to receive them at a rate of $239.50 per week, until they were terminated by the respondent on August 13, 2018.
2On August 29, 2018, the applicant commenced an application with the Licence Appeal Tribunal (“Tribunal”) to dispute the denial of his IRBs. More specifically, this dispute is regarding the applicant’s eligibility for IRBs for the period following 104-weeks post-accident.
3The parties attended in-person at the hearing on July 31, 2019 before the Tribunal1 to resolve the dispute. I heard the applicant’s testimony, viewed surveillance during the applicant’s cross-examination and received documentary evidence in the form of a four-volume brief.
4After reviewing all of the evidence and submissions, I have decided that the applicant’s claim for post-104 IRBs should be denied. On balance, the medical evidence and testimony demonstrate that the applicant is not completely unable to engage in employment for which he is reasonably suited, as discussed below.
ISSUES IN DISPUTE
5Is the applicant entitled to receive a weekly IRB for the period of August 13, 2018 to date and ongoing?
6Is the applicant entitled to receive interest on the overdue payment of benefits?
ANALYSIS
7The claim for IRBs for the period of August 13, 2018 to date and ongoing is denied. The applicant was initially found eligible for IRBs one-week post-accident, as he suffered a substantial inability to complete the duties of his employment. The respondent agreed that he met the eligibility criteria in section 5 of the Schedule. Generally, the applicant was reported to have sustained physical impairments - notably in his neck, shoulders and back, and psychological impairments, including depression, anxiety disorder, post-traumatic stress and a driving phobia – that prevented his return to work.
8The respondent terminated IRBs as stated in the Explanation of Benefits as the claim was beyond 104 weeks post-accident and the respondent determined that the applicant was not eligible under section 6 of the Schedule based on findings reported by the team of Insurer Examination Assessors (“IE Assessors”). The IE Assessors all found, according to their specific expertise, that the applicant did not show objective medical signs of impairment that would meet the test for the post-104 period as set out at paragraph 6(2)(b) of the Schedule.
9To resolve the present dispute, I must analyze the evidence in light of the test found at paragraph 6(2)(b) of the Schedule.
Complete Inability Test
10Paragraph 6(2)(b) of the Schedule states that an insurer is not required to pay an IRB after 104 weeks unless, as a result of the accident:
the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. (“complete inability test”)
11The parties agreed that the “complete inability test” applies to the present dispute. The parties also made helpful submissions in how this test should be applied.
12The applicant submitted additional factors to guide the application of this test, including:
a. that I consider the test in two parts, i. what type of employment is “reasonably suited” to the applicant; ii. whether there is a “complete inability” to engage in said employment; b. That regarding the suitability of employment, I consider the factors discussed in Horne v CIBC Insurance, FSCO A00-00291, 2001 CarswellOnt 5206: i. Suitable employment is fact-specific, viewed fairly and realistically in context of educational and employment background; ii. Reasonable suited alternative employment should not always include jobs substantially different in nature, status, or remuneration; iii. The insured’s age, qualifications and technical training are relevant factors; iv. The primary focus is functional limitations, but job-market considerations are relevant to determining reasonably suited employment; c. That “complete inability” does not require the degree of impairment that is as high as a “catastrophic impairment”, but one that is higher than “substantial inability;” d. Real world jobs should not be broken down into their component parts. The assessment should consider whether the applicant can engage in the employment for a reasonable amount of time and level of productivity – as would be expected by a reasonable employer – and not simply whether any one duty can be performed or not.
13The respondent submits that I must equally consider other factors in conjunction with my analysis, such as:
a. that I apply the “but for” test to determine if liability for a benefit is caused by the accident or not (with reference to Sabadash v State Farm et al, 2019 ONSC 1121 (Div. Ct.) at para. 31); and b. The duty under section 58 of the Schedule for an applicant to make reasonable efforts to return to employment can be considered in assessing ability to engage in employment.
14I have taken into consideration the above-noted factors in my determination that the applicant does not meet the “complete inability test”. I will first look to the employment that is reasonably suited for the applicant. An assessment of his ability to engage in said employment will follow.
Reasonably Suited Employment Factors
15The parties agreed to much of the applicant’s background information. Based on the evidence heard at the hearing, I find that the applicant:
a. Was born on April 17, 1988 and was 27 years old at the time of the accident; b. He completed high school (grade 12) in Pakistan; c. He started a bachelor’s degree in commerce in Pakistan from 2009 to 2011, but could not complete his studies as his family fled the country under duress; d. The applicant worked in Vietnam as a supervisor in a fabric warehouse and a supervisor in the finishing department over the course of 20 months. Upon arriving in Toronto, Canada in February 2015, he applied through a [staffing agency], and successfully obtained a factory job at [The factory]. e. The job duties at [The factory] included working with two machines: one big and one small plastic roll wrapping machines. The applicant’s job was to load and collect the rolls and pack them. He successfully completed on-the-job training to learn how to complete these specific tasks; f. The applicant was required to stand during a 12-hour shift, bend to collect the rolls, lift them and finish the packing process. The small rolls were 3 – 4 pounds and the big rolls were 60 – 70 pounds. g. The applicant did not receive any education or training while in Canada aside from what is noted here; and h. An English language TOEFL examination was scheduled to proceed in 2016, but was cancelled due to the accident and resulting impairments.
16The applicant referenced the Horne factors to submit that his only reasonably suited employment is “straightforward manual labour work”, without a significant component of customer interaction. To the extent that the respondent submitted customer service jobs are reasonably suited, the applicant rebutted by stating that customer-facing and food service positions are substantially different and are not appropriate due to his lack of social interaction experience, English language skills and job duties.
17I agree that customer-facing jobs are substantially different and I will not consider them as reasonably suited employment. I also agree that reasonably suited employment would be manual in nature, but it is necessary to elaborate more specifically on what duties this might include based on education, experience and training.
18Dr. D. Zervas, Vocational Evaluator, was the most specific in providing employment options according to the National Occupation Code listings and explanations for their suitability. While he did propose some customer-facing jobs - which I will not consider here - he also considered several helpful options, including:
a. Final Assembler, Packager, Test (Small Products) (NOC 9537); b. Final Inspector, Plastic Products (NOC 9535); c. Process Control Operator, Food & Beverage Processing (NOC 9461); d. Quality Control, Food & Beverage Processing (NOC 9465).
19Each of these employment options include line work that would be suitable based on the applicant’s grade 12 education, his on-the-job training at other line work jobs and his experience in various factory settings. I do not find that his age would impact his ability to do this work, and the evidence presented by Dr. Zervas showed that there were specific jobs available in the geographical area where the applicant (who also has a G2 driver’s licence) resides and can attend.
20The medical notes of the chiropractors, Dr. S. Redjvani, on July 19, 2017 and Dr. P. Kominek, on November 24, 2016 and December 14, 2017, help specify what reasonably suited employment should include in this case. Dr. Redjvani evaluated the applicant as a “machine operator”, including such duties as standing, bending, pulling, pushing, bending, twisting and carrying materials. Dr. Kominek found that the most closely aligned employment from the Dictionary of Occupational Titles was that of a “Packager, Hand” (Code 920.587-018) or “Other Labourers in processing, manufacturing and utilities” (NOC 9619). The latter position involves duties including transporting materials, products and equipment through a plant as well as sort, pack, crate and package materials and products.
21I would note that my own review of the NOC employments reveals that “Labourers in rubber and plastic products manufacturing” (NOC 9615) relates to labourers in the plastic industry and would more squarely relate to his employment with [The factory]. However, the general category of “Labourers in processing, manufacturing and utilities” (NOC group 961) would be more inclusive of his previous employment in other sectors and would be reasonably suited given his experience, training and education.
22Overall, I find that reasonably suited employment includes a range of general labour work in processing, manufacturing and utilities or similar loading work on a factory line.
23Employment in this range is not sedentary work, nor is it heavy work. According to the definitions referenced in Dr. Redjvani’s report, this range of work would be “Light Work” or “Medium Work”. Light work includes exerting up to 20 pounds of force occasionally and up to 10 pounds of force frequently, but a negligible amount constantly. Medium Work includes exertion of up to 20-to-50 pounds occasionally, 10-to-25 pounds frequently and up to 10 pounds constantly. Both ranges would include significant walking or standing and working at a production rate which include constant activity, even if the work is negligible. Light work would include more sitting than medium work.
24The employment range recommended by Dr. Zervas (NOC 9537, 9535, 9461, 9465) required “limited or light strength”, either some or no limb coordination, and some amount sitting, walking and standing.
25The applicant’s previous employment required light-to-heavy work. He testified that [The factory] required him to stand for most of his shift, sitting only on breaks. He had to bend and lift 3-to-4 pounds of small rolls and 60-70 pound large rolls. Each machine required constant attention and he would spend 2.5 hours at each machine before switching.
26I find that the range of reasonably suited employment would fall within the range of Light Work to Medium Work.
27The question then becomes whether the applicant suffered a complete inability to engage in the reasonably suited employment discussed above.
Not a Complete Inability to Engage in Employment
28I find, on a balance of probabilities, that the applicant does not suffer a complete inability to engage in any employment for which he is reasonably suited. This is not to say that the applicant has not suffered impairments. He has. His self-reports are consistent in showing that these impairments have greatly impacted his well-being.
29However, the medical evidence generally shows that he is able to engage in employment in a light-to-medium work range and that his reasons for not returning to work tend to be subjective, as opposed to objective. The IE Assessors conclude that there are no objective physical impairments from which the applicant would suffer a complete inability to engage in any reasonably suitable employment. I find these reports to be helpful, as they note some level of impairment, but describe the abilities of the applicant and explain his level of functionality.
30The psychological reports state that he is motivated to return to work, but that the applicant worried that his pain and cognition will be an impediment. He was diagnosed with psychological impairments, but the level did not completely impair his ability to return to work. The vocational and chiropractic assessment clearly show a physical ability to achieve physical work in a light-to-medium range.
31The applicant submitted that his physical impairments, e.g., “pinched nerves” in his neck and the physical pain he experiences, limit his ability to return to work. He states that he cannot easily lift, bend, sit or stand for extended periods of time. He also reports limitations due to impaired concentration, memory, socializing and impaired ability in dealing with his depression and anxiety.
32His complaints to his family doctor of left neck and shoulder pain were consistent from January 2016 to January 2017. (I note that there are no family doctor notes past this date). Dr. Kachooie’s neurological exam of June 2017 corroborates the applicant’s reports as he diagnoses the applicant with a “sluggish bicipital reflex and weakness of wrist extensors” and also, “left C-5 cervical radiculopathy”. In addition, a MRI of the applicant’s head, neck and lower back in July 2017 show a disc herniation of the C5-6 and C6-7 levels “minimally indenting the anterior aspect of the cord on the left side”.
33Confirmation from the applicant’s family doctor that he could not return to his previous employment would be an important indicator if I were able to find in favour of the applicant. Instead, the applicant recounts how he attempted a return to work, but that the staffing agency would not accept him unless he had confirmation from his doctor that he was fit to return to work. None of the information from the staffing agency nor the family doctor was put before me. This exchange would have been a clear example of putting the applicant’s limitations to the test. I draw an adverse inference from the absence of this information.
34In a letter of September 18, 2018, an independent medical evaluation of the applicant was completed by Dr. A. Marinov. The applicant’s medical history, imaging reports, self-reports were reviewed, and physical evaluations and testing were conducted. Dr. Marinov diagnosed the applicant with Chronic Pain Syndrome, Chronic Left C6 cervical disc herniation and radiculopathy, chronic post-traumatic concussion headaches, chronic mid-thoracic spine sprain with musculo-ligamentous injury, fibromyalgia, costochondritis and insomnia. Dr. Marinov found that these impairments limit the applicant’s ability to carry moderately heavy objects due to pain and that his walking distance and pace are restricted to 10 minutes of walking and he is not able to run. Thus, he was said to be unable to perform the duties of his previous employment due to his pain and stiffness and his accounting career plans are stalled due to poor concentration and an inability to sit for long periods. I found this report to lack in a review of specific job duties that would be performed by the applicant in the light to medium range of physical work. I find it to be of less assistance in the assessment.
35The applicant also submits that his mental state has worsened as diagnosed by Dr. Zakzanis, who found that since the subject accident, the applicant has had compromised well-being, with signs of adjustment disorder with depressed mood and PTSD. Dr. Fiati found similar diagnoses in his assessments of February 22, 2017, June 22, 2017, February 23, 2018 and May 22, 2018, including severe Depression, PTS, Sleep issues, memory issues, anxiety disorder and a driving phobia. The applicant had been improving with treatment from February 22, 2017 to June 22, 2017, but a relapse occurred in February 2018 following a second accident in January 2018.
36On April 3, 2018, the respondent sent an explanation of benefits to the applicant further to the IE assessors’ report of April 2, 2018. The orthopaedic assessment of Dr. Dessouki found that there was “no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the subject accident” and that the applicant does meet the “complete inability test”. The neurologist, Dr. Moddel found no neurological impairment and that this was mainly soft tissue in nature.
37Dr. Kominek, Chiropractor, found that the applicant’s “General Laborer/Packager” would require work at a Medium Physical Demand Level. He found that the applicant had restrictions in spinal ranges, but that his range would reasonably have been sufficient for the claimant to engage in daily activities. He also noted that his shoulder ranges were limited, especially the left shoulder. The applicant did not have limitations in sitting, standing, manual dexterity and forward reaching with sufficient frequency to meet medium physical demands. He was able to squat, bend, reach overhead and he had no functional deficits in stepping or grip strength. He demonstrated a capacity to perform work duties at a light to medium physical demand level (18 pounds) in overhead lifting tasks and at a medium level (25 pounds) for other types of lifting. The applicant could push and pull at a heavy physical demand level. Overall, Dr. Kominek found that he could perform physical work at a medium demand level, showing valid effort throughout.
38I would add to the above that the surveillance showed that the applicant can drive to some extent, jog for some time, socialize with his family and lift bags of groceries after shopping for some time. This alone does not show a certain level of working abilities, but it does not contradict the IE Assessor’s findings.
39Regarding physical limitations, I cannot conclude that the applicant suffers a complete inability to engage in any “reasonably suitable” employment. The chiropractic assessments show in detail how the applicant displayed normal amounts of physical force in most areas, except for his left shoulder area and with some pain and discomfort. Regarding lifting, Dr. Kominek found that overall, he could perform medium work and I accept this finding.
40The Psychology Assessment of Dr. K Zakzanis found that the applicant’s test findings showed a worse emotional state than the previous assessment, “which is noted to be in part related to his subsequent motor vehicle accident in December of 2017”. He diagnoses the applicant with Adjustment Disorder Depressed Mood and Post-Traumatic Stress Disorder and states that, but for the subject accident, he would not have this level of impairment. Dr. Zakzanis goes on to conclude that the applicant’s impairment does not mean he suffers a complete inability to engage in any reasonably suitable employment. The applicant was motivated to return to work and managed to cope with the therapy he had been receiving. The applicant’s motivation to return to work was noted by Dr. Zakzanis as early as November 24, 2016. Dr. Zakzanis states that the applicant cited his physical concerns as more of a barrier to his return to work as well as his memory and concentration. He suggested that the pain, physical limitations and poor concentration were the reason not to return to work. Dr. Zakzanis says that a neropsychological assessment may help confirm the level of cognitive impairment.
41A neuropsychological assessment was requested and was scheduled for May 24, 2018 with Dr. J. Atkins. Further to this examination and a subsequent Neurocognitive Assessment report of June 11, 2018, the respondent sent an explanation of benefits on June 13, 2018. The respondent highlights from the report that from a neuropsychological perspective, “there is no accident related impairment” and that the applicant does meet the “complete inability test”. The report states that there were signs of impaired memory and severe anxiety, but that there was low effort displayed with probable exaggeration. Also, Dr. Atkins states that there was no objective signs of a concussion or mild brain injury and that most concussion symptoms resolve within 3 months, as opposed to 28 months at the time of evaluation. Dr. Atkins found that the scores showing non-impairment were generally more credible. The applicant showed an average performance on complex measures of cognitive function which would argue against any impairment. Dr. Atkins ultimately found that there was no impairment given this evaluation and that low scores could be attributed to language issues or preoccupation with the pain.
42I find that the above reports tend to show no sign of objective impairments that would make the applicant completely unable to engage in any reasonable employment that are caused by the subject accident. There are many reports with the applicant doubting his ability to return to work. However, I find that he has the psychological ability, the cognitive ability and the physical ability, based on the medical information, to engage in reasonably suitable employment as noted above.
43The medical information provided by the applicant does not outweigh the findings of the IE Assessors in my opinion as they do not reach the same level of detail assessing the applicant’s functionality in relation to duties he would perform in his range of work. The battery of tests conducted by all medical professionals tend to show that the applicant does not suffer a complete inability in performing some level of employment that falls within the range of reasonably suited employment described above. I find that the concerns with pain impairing the ability to work are grounded in subjective reports as opposed to objective signs of impairment.
44If there is an impairment that is preventing the applicant from returning to work, it is not one that is caused by the subject accident.
45I find that the applicant’s physical, psychological and cognitive abilities would allow him to meet the requirements of light to medium work duties required by the above “reasonably suited” employment options. The employment options identified as reasonably suited, above, are mostly light work options, while the applicant’s previous employment was more medium. I find that the applicant has the objective ability to stand, walk and sit on a line and be able to transport what items as needed in a light to medium work range. He is motivated to find work and showed no objective cognitive impairment that would impede this return to work. He has the education, training and experience to succeed in such positions.
46Given the above, it is more probable than not that the applicant does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.
CONCLUSION
47The applicant has not met his burden of showing, on a balance of probabilities, that he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience for the period of August 13, 2018 to date.
48The applicant’s claim to interest is denied, given my finding that there are no benefits owing.
ORDER
49The application is dismissed.
Released: July 3, 2020
Matthew M. Létourneau
Adjudicator
Footnotes
- A three-day in-person hearing was ordered to proceed by Vice Chair E. White, starting on July 29, 2019. On that day, the parties attended and agreed to forego any and all expert witnesses and proceed with the applicant’s testimony only. The matter was adjourned until July 31, 2019 for one day of in-person hearing. Further to the hearing, written submissions were ordered to follow. A motion was heard by Vice-Chair Hunter of October 1, 2019 wherein he ordered written submission dates to be postponed to October 11, October 23, and November 1, 2019.```