R.B. v. The Guarantee Company of North America, 2020 CanLII 61458

Citation: R.B. vs. The Guarantee Company of North America, 2020 ONLAT 18-010085/AABS

Date: May 19, 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:

R.B.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

R.B.

Harlan Pottins, Counsel

Salima Wright, Paralegal

For the Respondent:

Patrick Brennan, Counsel

Interpreter:

[D.B.], Tagalog

HEARD:

In-Person on October 22, 2019 and closing submissions via Teleconference on November 22, 2019

OVERVIEW

1The applicant, R.B., was injured in an automobile accident on November 26, 2015 (the "accident") and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule") from The Guarantee Company of North America ("Guarantee"), the respondent.

2Guarantee terminated R.B.'s weekly income replacement benefits effective November 15, 2016 and, as a result, R.B. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3The parties were unable to resolve the issues in dispute at the case conference, and the first hearing date of August 2, 2019 was adjourned as no Tagalog interpreter was present. On October 22, 2019, the in-person hearing resumed, followed by the parties' closing submissions via teleconference on November 22, 2019.

ISSUES IN DISPUTE

4The following are the issues to be decided:

1. Is R.B. entitled to a weekly income replacement benefit ("IRB") in the amount of $263.01 from November 15, 2016 to June 4, 2019,¹ which was denied by Guarantee on November 8, 2016?

2. Is R.B. entitled to interest on any overdue payment of benefits?

RESULT

5I find that R.B. is entitled to IRBs for the period of November 15, 2016 to November 25, 2017 in the amount of $263.01 per week plus interest in accordance with s. 51 of the Schedule. R.B., however, is not entitled to IRBs for the period of November 26, 2017 to June 4, 2019.

ANALYSIS

Income Replacement Benefits ("IRBs")

6R.B. is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident to June 4, 2019.

Entitlement to IRBs within 104 weeks of the accident

7The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident.

8I find that R.B. has proven on a balance of probabilities that she is entitled to IRBs in the amount of $263.01 per week for the period from November 15, 2016 to November 25, 2017.

Essential tasks of R.B.'s pre-accident employment

9At the time of the accident, R.B. was employed at two jobs. First, R.B. worked full-time (approximately 45 to 50 hours per week) primarily on the weekdays as a Nanny for [C.P.]. In this role, R.B. provided care for one child that was approximately 6 or 7 years old in a private residence. R.B. held this position for approximately 6 or 7 years prior to the accident.

10In her position as a Nanny, R.B. testified that the essential tasks of her employment included:

(i) Meal preparation and feeding the child;

(ii) Walking the child to and from school;

(iii) Driving the child to her extracurricular activities;

(iv) Cleaning the family's home, including vacuuming, on a daily basis;

(v) Completing laundry, including carrying laundry baskets up stairs from the basement;

(vi) Driving to the grocery store and grocery shopping;

(vii) Driving to pick-up dry cleaning; and

(viii) Completing outside home maintenance, including snow shovelling, lawn mowing, watering the lawn, gardening and raking and bagging leaves.

11These essential tasks were corroborated by the Employer's Confirmation Form ("OCF-2") completed by [C.P.] dated December 18, 2015. In this OCF-2, [C.P.] lists the following in the job description section: child care, house cleaning, driving, groceries, cooking and yard maintenance.

12Second, R.B. worked part-time (8 hour shifts on both Saturday and Sunday) as a hotel housekeeping aide for [a hotel] in downtown Toronto. R.B. testified that she began working as a hotel housekeeping aide approximately 2 months prior to the accident.

13R.B. testified that, as a hotel housekeeping aide, she cleaned hotel rooms which included vacuuming, changing bed linens, scrubbing bathtubs and toilet bowls, and mopping. R.B. also testified that she cleaned the hotel hallways and the hotel office. The only description of this employment position contained on the March 3, 2016 OCF-2, completed by [M.B.] on behalf of [the hotel], was "cleaning hotel rooms."

14While I do not agree that outside yard maintenance as described by R.B. is typically an essential task of a Nanny, I do accept that, at the time of the accident, R.B.'s Nanny position required her to complete these tasks. Further, while R.B. was evasive during some of her cross-examination as discussed below, I nevertheless accept her evidence on the essential tasks of her pre-accident employment both as a Nanny and as a hotel housekeeping aide.

Substantial inability to perform essential tasks

15On a balance of probabilities, I find that R.B. was substantially unable to perform the essential tasks of her pre-accident employment both in her position as a Nanny and also as a hotel housekeeping aide for the period of November 15, 2016 to November 25, 2017. I find that her substantial inability to perform these tasks arose as a result of the physical injuries, such as the soft tissue injuries to her cervical, thoracic and lumbar spine, shoulders, right hand, left knee and headaches, that she sustained from the accident.

16R.B. testified at the hearing that she could not return to either of her pre-accident positions due, in part, to her physical injuries. R.B. explained that pain in her neck, shoulders and back prevented her from lifting heavy items and completing certain housework and home maintenance tasks that she was required to do in her pre-accident Nanny position, such as shoveling, mowing the lawn, vacuuming and gardening. R.B. also testified that her back pain prohibited her from returning to her position of a hotel housekeeping aide as she was unable to lift heavy objects, including bed linens.

17The consistency with which R.B. reported her ongoing pain arising from her soft tissue injuries during this first period in dispute is reflected in several documents. For example, a November 23, 2016 clinical note and record ("CNR") entry from Kingscross Doctor's Office noted that R.B. reported ongoing neck pain and, as a result, she was referred for chronic pain management.

18On December 12, 2016, R.B. underwent an EMG and Never Conduction Study by Dr. John D. Kay, neurologist, who diagnosed R.B. with very mild left carpal tunnel syndrome. Dr. Kay noted that R.B. reported pain in her left shoulder that extended down her left arm with intermittent numbness in her left hand and forearm. R.B. also reported to Dr. Kay discomfort with movement of her neck.

19Various treatment records from Complete Rehab Centre, Talbot Trail Physiotherapy and SheerHealth Physiotherapy also demonstrated that R.B. was receiving physiotherapy and massage therapy during the period of November 15, 2016 to November 25, 2017. During this time, R.B. consistently reported to her various service providers pain in her neck, upper, mid and low back, left knee pain, left shoulder pain, headaches and left-hand numbness. R.B. also reported occasional pain radiating down her arms and that, on two occasions,² she dropped objects from her hands. R.B. further reported that her pain was aggravated by bending, twisting, lifting and prolonged sitting. Long walks also reportedly caused R.B. pain in her left knee.

20R.B. attended a consultation with Dr. Julian MacDonald at InMedic Pain Management Centres which resulted in a report by Dr. MacDonald dated June 28, 2017. In his report, Dr. MacDonald diagnosed R.B. with the following conditions: mechanical neck pain with left radicular pain; mechanical back pain; episode headaches with migraneous features; and myofascial pain syndrome. Notably, Dr. MacDonald recommended that R.B. increase her prescription medications, such as amitriptyline and cyclobenzaprine, and that R.B. could consider other medications such as listeria or gabapentin for pain management. Dr. MacDonald also encouraged R.B. to continue with light exercise and physiotherapy as R.B. elected to forgo other interventions such as nerve blocks, trigger point injections and lidocaine infusions at that time. Dr. MacDonald invited R.B. to return to the clinic should her pain worsen in the future.

21Guarantee relied in part upon an October 25, 2016 Physiatry In-Person Insurer's Examination ("IE") report by Dr. Keith A. Sequeira, physiatrist,³ in terminating R.B.'s IRBs. In this report, Dr. Sequeira concluded that R.B. should be able to return to her previous work as a Nanny. In contrast, however, I find that that Dr. Sequeira's October 25, 2016 report, along with his December 20, 2017 Physiatry In-Person IE report,⁴ cumulatively support a completely opposite conclusion regarding R.B.'s ability to engage in her pre-accident employment. In my opinion, these two reports accentuate R.B.'s inability to return to her pre-accident employment as a result of her ongoing pain.

22In his October 25, 2016 report, Dr. Sequeira notes that R.B. reported daily, intermittent pain in her neck that is made worse with sustained or repetitive postures and side bending and flexion, headaches occasionally associated with nausea two to three times per week, intermittent lumbar pain that is made worse with sitting for longer than 20 minutes, bending, lifting and twisting, and intermittent left knee and ankle pain made worse with prolonged standing and walking. Dr. Sequeira also reported that R.B.'s range of motion in her neck was limited and reported as painful at the extremes of flexion and bilateral side bending. R.B.'s range of motion was also reported as limited by pain in her left shoulder. Additionally, R.B.'s lumbar spine range of motion was limited in all directions with complaints of pain. Following his assessment, Dr. Sequeira diagnosed R.B. with the following conditions as a result of the accident: neck and upper parascapular pain of a myofascial etiology with referral into the left arm (Whiplash Associated Disorder, Grade II); mechanical low back pain; cervicogenic and tension type headaches; and a left knee sprain.

23Nevertheless, Dr. Sequeira acknowledged that R.B. had persistent intermittent pain almost one-year post-accident and opined that she should "gradually resume" many of her pre-accident activities with pacing and modifications in his October 25, 2016 report.⁵ Dr. Sequeira then noted that R.B. may report difficulty with certain activities including medium or heavy intensity lifting, sustained, repetitive and awkward head and neck postures and sustained or repetitive at or above shoulder height activity.⁶ Furthermore, Dr. Sequeira also reported that performance of normal functional activities will likely be challenging for R.B. and will likely cause her increased pain,⁷ and he supported the ongoing use of medication to assist R.B. in managing her pain.⁸ Finally, Dr. Sequeira opined that R.B. had not yet reached maximum medical recovery and recommended further physiotherapy.⁹

24Despite his diagnoses and his comments regarding the impact of R.B.'s pain on the performance of her normal functional activities, Dr. Sequeira opined that R.B. did not have a substantial inability to engage in the essential tasks of her pre-accident employment in his October 25, 2016 report. He added a preface to this conclusion, however, stating "as I understand them to be"¹⁰ in reference to the essential tasks of R.B.'s pre-accident employment.

25In my opinion, Dr. Sequeira neither fully understood R.B.'s pre-accident employment nor the essential tasks of her pre-accident employment. For example, Dr. Sequeira does not mention R.B.'s employment as a hotel housekeeping aide in his report, and the only tasks that he highlighted from R.B.'s Nanny position is taking a child to and from school, cleaning and cooking. It is clear that Dr. Sequeira was not aware of the heavier physical tasks that R.B. was required to complete in her Nanny position such as vacuuming, carrying laundry baskets between floors and all of the outside home maintenance tasks that she was responsible for. These are never mentioned.

26As a result of Dr. Sequeira's limited understanding of the essential tasks of R.B.'s Nanny position and his failure to address R.B.'s pre-accident position as a hotel housekeeping aide, I give very little weight to his conclusion that R.B. should have been able to return to her pre-accident work at the time of his October 25, 2016 report. In my opinion, the heavier housekeeping and outdoor maintenance tasks required in R.B.'s pre-accident positions are the very tasks that would all fall under Dr. Sequeira's category of certain activities that would be difficult for R.B. to complete due to pain and would, in fact, increase her pain. For all of these reasons, I disagree with Guarantee's submissions that there were no functional impairments of any kind identified in Dr. Sequeira's reports that would entitle R.B. to IRBs within 104 weeks of the accident. In contrast, I find that Dr. Sequeira's comments regarding R.B.'s pain and functionality in his report more accurately support a conclusion that R.B. was not substantially able to perform the essential tasks of her pre-accident employment in her Nanny position and also as a hotel housekeeping aide.

27Moreover, I also find that Dr. Sequeira's December 20, 2017 report supports my finding that R.B. is entitled to IRBs during the period of November 15, 2016 to November 25, 2017.¹¹

28In his December 20, 2017 report, Dr. Sequeira provided the following diagnoses of R.B.: whiplash-associated disorder grade 2; mechanical low back pain (improved); and cervicogenic and tension-type headaches (improved). The only impairment previously identified in his October 25, 2016 report that Dr. Sequeira noted as resolved in this report was R.B.'s left knee sprain. Dr. Sequeira noted that R.B. was two-years post accident at the time of this report and that he anticipated that she will likely have similar symptoms to her current situation in the future such as the pain in her neck, shoulders, back and left foot and her ongoing headaches.¹² Dr. Sequeira further opined that R.B. had reached maximum medical recovery in this report and that it would be reasonable that R.B. will still have some difficulty with specific activities into the future, including: medium or heavy intensity lifting; sustained, repetitive or awkward head movements and postures; and sustained or repetitive at or above shoulder height activity.¹³ While Dr. Sequeira reported that R.B. had meaningfully improved since his last assessment, it is not clear how this was determined or what frame of reference Dr. Sequeira was using to arrive at this conclusion as, based on a comparison between his two documents, the only resolution of any of R.B.'s complaints well over one year later was her left ankle. Furthermore, Dr. Sequeira's comments regarding R.B.'s likely future difficulties as a result of her pain had not changed between the two reports.

29Based on all of the reasons set out above, I find that R.B. has proven on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment both in her Nanny position and also as a Hotel Housekeeping Aide as a result of the physical impairments¹⁴ that she sustained from the accident for the period of November 15, 2016 to November 25, 2017. As a result, R.B. is entitled to IRBs in the amount of $263.01 per week from November 15, 2016 to November 25, 2017.

Entitlement to IRBs beyond 104 weeks of the accident

30To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience.¹⁵

31R.B. bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from November 26, 2017 to June 4, 2019.

Employment for which R.B. is reasonably suited

32I accept R.B.'s testimony that the highest level of her education was a diploma following a two-year secretarial course that she completed in the Philippines in 1981. R.B. also testified that she worked as a secretary in the Philippines for approximately two years after receiving her diploma. I find, however, a secretarial or administrative position would not be reasonably suitable for R.B. because English is not R.B.'s first language, R.B. required the assistance of an interpreter to testify at the hearing and I accept R.B.'s testimony that she does not feel confident to work in a job that would require her to speak English.

33As a result, I find that the employment that R.B. would be reasonably suited for by her education, training and experience would either be as a Nanny/child care provider or as a housekeeper/cleaner given her experience here in Canada and also from her previous experience as a Nanny and Domestic Helper in Abu Dhabi and in Hong Kong prior to immigrating to Canada in 2005.

Complete inability to engage in any reasonably suitable employment

34I find that R.B. has failed to prove on a balance of probabilities that she was completely unable to engage in any employment for which she was reasonably suited for the period of November 26, 2017 to June 4, 2019.

35R.B. primarily relied upon the following four expert reports to support her claim for IRBs 104-weeks post-accident: a Psychological Evaluation Report dated May 21, 2019 by Dr. Romeo Vitelli, psychologist;¹⁶ a Neurological Report dated May 21, 2019 by Dr. Michel P. Rathbone, neurologist;¹⁷ a Job-Site Assessment dated May 26, 2019 by Karen Quan, kinesiologist, and supervised by Dr. Amir Owliaei, chiropractor;¹⁸ and a Functional Abilities Evaluation dated May 26, 2019 by Ms. Quan and Dr. Owliaei.¹⁹ While all of these reports were authored during the relevant period regarding R.B.'s claim for IRBs 104-weeks post-accident, I give them little-to-no weight in determining R.B.'s entitlement to IRBs for the following reasons.

36Firstly, there was no interpreter present at any of these four assessments despite the hearing in this matter not being able to proceed on the first scheduled date due to no Tagalog interpreter being present. The lack of interpreter is also problematic given R.B.'s testimony that she would not be comfortable working in an administrative position that would require her to speak English. The fact that no interpreter was present calls into question the opinions contained in these reports as, for example, Dr. Vitelli's diagnostic impressions were based on, at least in part, R.B.'s self-reporting and the administration of psychometric tests with which he noted R.B. required "active supervision and assistance."²⁰ Ms. Quan and Dr. Owliaei also noted that they relied in part upon an interview with R.B. for their Job-Site Assessment,²¹ and Dr. Rathbone reported that R.B.'s mental status was "abnormal" given her difficulty with word finding during the examination.²² These reports do not address the impact of the language barrier on the observations or assessment methods used, which is concerning in light of R.B.'s testimony that she could not tell Dr. Vitelli everything that she wanted to during her assessment because there was no interpreter present.

37The lack of interpretation services at the assessments is highlighted by at least one reported inconsistency between Dr. Rathbone's report and Ms. Quan's and Dr. Owliaei's functional abilities evaluation. Dr. Rathbone noted that R.B. reported to him that her dizziness and imbalance was resolved,²³ which is consistent with R.B.'s hearing testimony, whereas Ms. Quan and Dr. Owliaei report that R.B. was having dizziness symptoms several times per week.²⁴ This discrepancy between the two reports remained unexplained.

38Secondly, Ms. Quan's and Dr. Owliaei's reports only provide information on R.B.'s functionality regarding her pre-accident employment position as a Nanny. There is no discussion as to her functionality in terms of any employment for which she is reasonably suited by her education, training and experience.

39Thirdly, the only assessor who reviewed any documents outside of these reports was Dr. Vitelli. Dr. Rathbone, Ms. Quan and Dr. Owliaei only reviewed each other's report(s) and Dr. Vitelli's report as part of their assessment of R.B. The failure to review additional information becomes problematic in affording weight to these reports as, for example, Dr. Rathbone's observations regarding carpal tunnel syndrome are not consistent with other evidence before me. Dr. Rathbone reports that the Phalen's Sign, a provocative test for carpal tunnel syndrome, was negative bilaterally.²⁵ However, Dr. Kay had completed a second EMG and Nerve Conduction Study report dated April 29, 2019, less than a month after Dr. Rathbone's assessment of R.B., in which Dr. Kay opined that R.B. had very mild right carpal tunnel syndrome and, although still classified as mild, that R.B.'s left carpal tunnel syndrome had worsened since Dr. Kay's 2016 assessment. Dr. Rathbone, not having reviewed more than his fellow assessors' reports, failed to comment on the existing diagnosis of carpal tunnel syndrome by Dr. Kay in 2016 in comparison to his observations of R.B.

40Finally, I agree with Guarantee that the language contained in Dr. Vitelli's report is problematic. Dr. Vitelli's report states that R.B. and her husband were "unaware that 3700 pounds of metal was barreling toward them,"²⁶ and provides further details of the accident as follows:

the violence of the impact; the exploding airbags; the crumpling metal, and shattering glass, also sent the harnessed bodies of Mr. and Ms. [B] flopping against the hard plastic surfaces of their inner car cabin. And amidst the spinning and trajectory, [R.B.]'s vehicle was thrown sideways, across lanes, before everything just stooped. Because of the desolate road conditions, no other vehicles were involved, and the [B]s survived. And when the battered vehicle, which offered the couple enough protection to keep them alive, stopped spinning it took the [B]s some time to come to their senses and to come to terms with their shock.²⁷

41When R.B. was asked if these were her words in cross-examination given the evidence that R.B,'s first language was not English, she became evasive and only answered several times that she did not remember. While I would not go as far as Guarantee suggests and find that Dr. Vitelli pursued a form of advocacy on behalf of R.B., I do agree that the evidentiary foundation for Dr. Vitelli's description of the accident is unclear and, as a result, calls into question the evidentiary foundation for the remainder of his report. Candidly, even R.B.'s counsel conceded that Dr. Vitelli's report contained language that could be disputed.

42As I have given the reports of Dr. Vitelli, Dr. Rathbone and Ms. Quan and Dr. Owliaei little to no weight for the reasons set out above, I am therefore not satisfied that R.B.'s self-reports of problems with her thought processing alone are enough to persuade me that she would meet the eligibility test for IRBs post-104 weeks after the accident.

43The remaining medical evidence from this period in dispute also does not support R.B.'s claim for IRBs 104-weeks post-accident. For instance, while I found that Dr. Sequeira's December 20, 2017 report supported R.B.'s claim for entitlement to IRBs within 104-weeks of the accident, I do not agree that it supports her entitlement to IRBs beyond 104-weeks of the accident.

44As discussed above, Dr. Sequeira opined in his December 20, 2017 report that R.B. had reached maximum medical recovery and that it would be reasonable that she will still have some difficulty with medium or heavy intensity lifting, sustained, repetitive or awkward head movements and postures and sustained or repetitive at or above shoulder height activities into the future. While I accepted that these difficulties impacted R.B.'s ability to return to the heavier physical tasks that she was required to complete in her pre-accident Nanny position, no evidence was tendered at the hearing to support a finding that the heavier tasks, such as outside yard maintenance, are essential tasks of other Nanny positions or that such physical demands would be required in an alternate child care setting. I agree with Guarantee that R.B. is required to mitigate her situation and is required to seek work.²⁸ In this matter, R.B. led no evidence that she pursued any other form of child care work in the post-104-week period that would be less strenuous and involve fewer physical tasks than those required in her pre-accident Nanny position.

45Additionally, R.B. testified that she moved from her home in Brampton into her son's home in London in or about July 2016. R.B. resided in her son's home along with her husband, her son's wife and her three-year-old granddaughter. Regardless of R.B.'s reason for the move, she testified that she babysat her granddaughter unaccompanied by other adults starting approximately two years post-accident. Further, while R.B. was evasive during cross-examination regarding some details of her involvement with the care of her granddaughter, including whether or not she drove her granddaughter places, R.B. did confirm that she became more involved with meal preparation two years post-accident. In my opinion, R.B.'s testimony confirmed that, at two-years post-accident, she was able to supervise young children unaccompanied and provide basic care, such as meal preparation, which would be tasks required in a child care employment setting.

46I am also not convinced that R.B.'s unsuccessful return to work in 2018 indicates that she has met the test for entitlement to IRBs in the post-104-week accident period. R.B. testified that she obtained a position as a dietary server at [a retirement home] in December 2018 which required her to serve meals to the Home's residents. R.B. was not hired permanently in this position, however, as she testified that she did not pass her probationary period. R.B. stated that it was her understanding that she was not hired because she could not meet the physical demands of the job of carrying heavy plates in a timely manner. R.B. attributed her inability to carry out the physical tasks of this position to the injuries that she sustained in the accident.

47R.B. testified that, in her opinion, the position of a dietary server at [a retirement home] was less physically demanding than her caregiving job at the time of the accident. R.B. may be correct in her opinion; however, it is not relevant to her entitlement to IRBs in the post-104-week period, as the test is whether or not she is substantially able to engage in any employment for which she is reasonably suited and is not solely a comparison to her pre-accident employment. To repeat, there was no evidence before me that other Nanny positions or other child care positions would require R.B. to complete such heavy physical tasks that she was required to perform in her pre-accident Nanny position.

48Finally, while I do not dispute that R.B. had ongoing pain complaints and was still taking prescription medication for both pain and psychological conditions into the 104-week post-accident period, R.B. was applying for jobs starting in November 2018 and ultimately returned to work on June 4, 2019 as a launderer at a long-term care facility. R.B. testified that she works 8-hour afternoon shifts in this position hanging and folding the residents' clothes and that she was still employed in this position at the time of the hearing. R.B. described this employment position as lighter "than her previous work," but noted that she still experiences pain from this employment. R.B. failed to provide any further details of the severity, intensity and functional limitations, if any, from her reported pain. Further, a comparison of the CNRs from SheerHealth Medical Clinic show similar pain complaints from before R.B. obtained her position at the long-term care facility to after she was engaging in this employment.

49Based on all of the reasons set out above, R.B. is not entitled to IRBs for the period of November 26, 2017 to June 4, 2019 as she has failed to prove on a balance of probabilities that she was completely unable to engage in any employment for which she was reasonably suited by education, training or experience during this period.

Interest

50As I have found that R.B. is entitled to IRBs for the period of November 15, 2016 to November 25, 2017 in the amount of $263.01 per week, interest is payable on this amount in accordance with s. 51 of the Schedule.

CONCLUSION

51For all of the reasons set out above, I find that:

(i) R.B. is entitled to IRBs for the period of November 15, 2016 to November 25, 2017 in the amount of $263.01 per week plus interest in accordance with s. 51 of the Schedule; and

(ii) R.B. is not entitled to IRBs for the period of November 26, 2017 to June 4, 2019.

Released: May 19, 2020

__________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1Initially, R.B. claimed a weekly IRB for the period of November 15, 2016 to date and ongoing. However, following evidence at the hearing, R.B. sought to amend the period in dispute for her claim for IRBs to November 15, 2016 to June 4, 2019. Guarantee took no position on the request and, as a result, I ordered that the issue be amended as requested. At the hearing, the parties also confirmed that the quantum of IRBs was not in dispute.
2. 2CNR entries dated May 19, 2017 and September 20, 2017 from SheerHealth Physiotherapy.
3. 3Respondent's Hearing Document Brief, page 50.
4. 4Applicant's Supplemental Hearing Document Brief, page 411.
5. 5Supra note 3 at page 9 of the report.
6. 6Ibid. at page 10 of the report.
7. 7Ibid.
8. 8Ibid. at page 11 of the report.
9. 9Ibid. at page 12 of the report.
10. 10Ibid.
11. 11While Dr. Sequeira's December 20, 2017 report does not fall within the pre-104-week period for which R.B. is claiming IRBs, Dr. Sequeira's assessment of R.B. that is the basis for his report took place on December 5, 2017. I find that the underlying assessment of R.B. took place extremely close to the period in dispute and, as a result, I place weight upon this report in determining R.B.'s entitlement to IRBs within the pre-104-week period.
12. 12Supra note 4 at page 10 of the report.
13. 13Ibid.
14. 14R.B. also raised physiological impairments and cognitive and driving issues giving rise to her substantial inability to complete the essential tasks of her pre-accident employment. However, given my findings regarding her physical injuries as a result of the accident and her entitlement to IRBs within 104-weeks of the accident, I do not need to consider or make any findings regarding any conditions at this juncture.
15. 15Schedule, s. 6(2)(b).
16. 16Applicant's Expert Reports Brief, tab 1.
17. 17Applicant's Expert Reports Brief, tab 3.
18. 18Applicant's Expert Reports Brief, tab 2.
19. 19Applicant's Expert Reports Brief, tab 4.
20. 20Supra note 16 at page 2.
21. 21Supra note 18 at page 1.
22. 22Supra note 17 at page 13.
23. 23Ibid. at page 8.
24. 24Supra note 19 at page 4.
25. 25Supra note 17 at page 13.
26. 26Supra note 16 at page 4.
27. 27Ibid. at page 5.
28. 2818-000291 v Aviva Insurance Canada, 2018 CanLII 115659 (ON LAT) at para. 33.