Released Date: 08/04/2020
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:
H. M.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Robert B. Burns, Counsel
For the Respondent:
James A. Schmidt, Counsel
HEARD: In Writing
Heard by way of written submissions.
OVERVIEW
1On May 6, 2015, the applicant was involved in a motor vehicle accident. After the accident, he remained off of work until August 2015, when he returned on a part-time basis as a steel worker on modified duties. The applicant submits that, as he is self-employed, a return to work on a part-time and modified basis was an option for him.
2The applicant applied for and was denied an income replacement benefit (“IRB”) under the Statutory Accident Benefits Schedule – Effective after September 1, 20101 (the “Schedule”). The applicant 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”).
3The applicant asserts that he suffered a physical impairment that renders him substantially unable to complete the essential tasks of his pre-accident employment. He also asserts that he meets the post-104 week IRB test, per Section 6(2)(b) of the Schedule, as he is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. The applicant entered the post-104 period on May 6, 2017.
4The respondent takes the position that an IRB is not payable as the applicant does not meet the pre-104 test or the post-104 test.
5This written hearing was scheduled to determine whether the applicant was entitled to an IRB. Were the Tribunal to find that an IRB is payable, the parties have relied upon the respondent’s Forensic Accountant’s Report, dated June 10, 2019, which calculated the quantum of weekly IRB at $231.17.
ISSUES IN DISPUTE
6The following issues are in dispute:
i. Is the applicant entitled to an income replacement benefit in the amount of $231.17 per week for the period May 13, 2015 to date and ongoing?
ii. Is the applicant entitled to interest on the overdue payment of the IRB?
RESULT
7Based upon a review of the totality of the evidence and submissions, I find that:
(a) The applicant is entitled to receive an income replacement benefit in the amount of $231.17 weekly for the pre-104 period;
(b) The applicant is not entitled to receive an income replacement benefit for the post-104 period; and
(c) The applicant is entitled to interest on the overdue payment of IRBs that I have found him entitled to as per the Schedule.
DISCUSSION & ANALYSIS
8Based upon the totality of the evidence presented, I find that the applicant has met the eligibility test for an income replacement benefit for the pre-104 week period, but not for the post-104 week period.
A. Pre-104 Income Replacement Benefit
9To be entitled to a pre-104 week 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, he suffered an impairment that renders him substantially unable to complete the essential tasks of his pre-accident employment as a steel worker. The burden is on the applicant and he has met his burden.
10For purposes of the pre-104 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 his pre-accident employment; and
iii. Causation
i. Employment at the time of the accident
11At the time of the accident, the applicant was self-employed as a steel worker working about 45 to 60 hours a week.
12He owns 75 percent of a small steel fabrication business known as [The steel company] One of the applicant’s sons owns the remaining 25 percent and is his business partner.
Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?
13To 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
14The respondent obtained a Job Site Analysis Report of the applicant’s workplace prepared by Sheri Corriero, physiotherapist, dated June 26, 2018, which lists the essential tasks of the applicant’s employment as including:
(a) Bid for a job.
(b) Fabricate in shop.
(c) Deliver and install at job site.
(d) Metal for the job is delivered to the shop and if they need something small, they will go get it themselves.
(e) An overhead crane is used to move the heavy loads. But it only goes up and down so they have to push and pull on the load to move it into place once it is raised.
(f) Kneeling on the ground for hours sometimes to plan out the job based on the blueprints for the job.
(g) Metal is cut to size using various tools and assembled as per the blueprints.
(h) If it is large, the items are cut to size, delivered to the site and assembled there.
(i) They may use a forklift.
(j) They may put up scaffolding or use a ladder.
(k) If it is higher than 10-15 feet, they will rent a power lift.
(l) Office work for possibly 30 to 60 minutes a day.
15The applicant submits that the office work component of his position includes pricing jobs, preparing construction plans and invoicing customers.
16The Job Site Analysis notes that the applicant’s position requires a Heavy Physical Demand Level which is defined as exerting 50 to 100 pounds of force occasionally and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects.
17The Job Site Analysis also notes that the applicant’s self-reporting is consistent with the Heavy strength category. The applicant reports frequent to constant handling. He reports frequent standing, walking, carrying up to 20-30 lbs, forward and overhead reaching, bending/stooping. He reports occasional lifting up to greater than 100 lbs with others (floor to shoulder), lifting up to 100 lbs with others (over shoulder), sitting, ladder climbing, crawling, pushing/pulling (heavy), carrying greater than 100 lbs with others, fingering, kneeling, crouching, and twisting.
18Based upon the evidence presented, I find that the essential tasks of the applicant’s employment are descriptively found in the Job Site Analysis and that his position requires a heavy physical demand level.
(b) Is the applicant substantially unable to perform the essential tasks?
19I find that the applicant has established on a balance of the probabilities that he is substantially unable to perform the essential tasks of his pre-accident employment as a steel worker. The applicant has provided convincing evidence regarding how his impairments specifically affect his functionality and ability to perform the essential tasks. I note that the applicant’s position as a steel worker requires a heavy physical demand level.
20The applicant submits that he meets the IRB test on the basis of his neck injury alone. He contends that he sustained a neck injury as a result of the accident resulting in continuous pain with radiating symptoms in his right arm/hand which is aggravated by heavy activity at work and heavy household chores.
21The applicant further asserts that he injured his low back in the accident and has low back pain and radiating right leg symptoms. He acknowledges that although his chiropractor and the insurer’s orthopaedic surgeon found that the low back pain and radiating right leg symptoms are likely related to the accident, the insurer neurologist found the ongoing back pain and radiating leg symptoms are due to conditions unrelated to the accident. Nonetheless, he submits that his low back pain contributes to his inability to perform his essential pre-accident duties.
22In making a determination, I found particularly persuasive the Functional Capacity Evaluation, ordered by the respondent and prepared by Sheri Corriero, physiotherapist, dated June 26, 2018 (the “FCE”). The FCE provides particulars on the applicant’s post-accident functional abilities and states that he reports working about 24 to 25 hours a week and does not engage in heavy lifting, carrying, pushing or pulling. He can pass tools and light items to other employees. He can lift maybe 10 to 20 lbs. He helps a little with pushing and pulling. He can go on a ladder with difficulty. He usually works from 7 a.m. to 1 p.m. and then goes home and lies down on the hard floor. After dinner, he will walk for about 30 to 40 minutes.
23The FCE states that based upon observations, physical examination, data analysis and patient feedback, the applicant’s demonstrated abilities fall in the sedentary strength range which is defined as exerting 10 pounds of force occasionally and/or negligible amount of force frequently. The FCE notes that the applicant demonstrated sedentary to light strength for mid-level lifting, sedentary strength for high level lifting and sedentary strength for carrying. Grip and pinch strength were low on the right and normal to high on the left.
24The FCE concludes that compared to his self-reported job duties, the applicant did not meet the physical demands for lifting, carrying, walking, crouching, right-sided overhead reaching, handling with the right hand and standing. He is noted as demonstrating a self-limited effort in the evaluation with 15 out of 20 consistency measures recorded as reliable and most of the tests not considered reliable were related to right hand grip or pinch strength testing. I note that the results were considered a valid representation of the applicant’s current functional abilities. The assessor deferred to the medical specialists with regard to whether the applicant’s accident-related impairment meets the pre-104 test or the post-104 test.
25I also found convincing the Disability Certificate dated May 30, 2015 which lists the applicant’s injuries as: WAD III cervical strain, thoracic strain and lumbar strain. The Certificate notes that the applicant is substantially unable to perform the essential task of his employment and more investigation is needed for an ataxic gait and for facial numbness and pain. The Disability Certificate dated June 18, 2015 listed the applicant’s injuries as neck and back pain and noted that he is substantially unable to perform the essential task of his employment due to neck and back pain.
26The respondent notes that the disability certificates do not explain how the applicant could not work in the managerial portion of his role. I note that the focus of the test is broader and is whether the applicant is substantially unable to perform the essential tasks of his pre-accident employment as a steel worker, not whether he can perform some tasks.
27The applicant also consulted with a neurologist, Dr. Rose Giammarco, for his ongoing neck pain, headaches and facial pain/numbness. In a consultation report, dated December 21, 2015, Dr. Giammarco opined that the applicant is suffering from post-traumatic headache with features of occipital neuralgia and cervicogenic headache.
28The applicant’s chiropractor Dr. Enrico Schirru in his November 2, 2017 report notes that the applicant suffers from ongoing neck and low back injuries as a result of the accident. The applicant submits that between the start of treatment on October 19, 2017 and May 30, 2019, he attended 73 chiropractic treatments and continues to attend to manage his ongoing neck pain and back pain with radiating pain into his right leg.
29I also found persuasive the diagnostic medical evidence:
(a) A cervical spine MRI report, dated September 20, 2015, noted multilevel degenerative change. There were three levels of disc narrowing and several stenoses but no cord involvement. The applicant is noted as having foraminal stenosis at these levels.
(b) An x-ray of the applicant’s lumbar spine, dated February 5, 2018, showed mild retrolisthesis of L4 on L5 and mild L4-5 degenerative disc space narrowing.
(c) A lumbar spine MRI report, dated May 15, 2018, noted multilevel degenerative changes with a large right paracentral disc herniation at L4-5.
30I also found helpful the IE orthopaedic and neurologist assessments in terms of gaining a better picture of the applicant’s symptoms, impairments and diagnosis.
31As noted in the IE orthopaedic assessment of Dr. Behzad Taromi, dated June 26, 2018, the applicant complains of lower back pain over the midline and right side of his back which is constant, deep, dull and moderate with improving symptoms. The applicant further complains of pain of the neck, more on the right side which aggravates with neck motion. This is associated with a headache which is on the right frontal and temporal region and is intermittent and sharp and moderate in nature. He further complains of a degree of numbness over the right arm and right forearm which aggravates with activities and is intermittent in nature. Dr. Taromi notes that overall the applicant’s symptoms are right-sided neck with right upper extremity symptoms and lower back with right-sided lower extremity symptoms. Dr. Taromi notes that the applicant stated that he developed increased lower back pain on January 28, 2018 with no incident of trauma.
32Dr. Taromi concluded that the applicant’s orthopaedic injuries related to the accident were consistent with cervical spine and lumbar spine sprain and strain with right-sided upper and lower extremity symptoms. There was a degree of irritation of the right lower extremity and a degree of associated headache and right upper extremity symptoms including pins and needles. Dr. Taromi confirms that since the accident the applicant works 20 to 24 hours per week on modified duties and does not perform any heavy work.
33While I found Dr. Taromi’s report helpful, I did not find particularly persuasive his conclusion that, from an orthopaedic perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment. I found that although Dr. Taromi referenced the Job Site Analysis and FCE, he did not undertake a sufficient or convincing analysis of the essential tasks of the applicant’s employment before coming to his conclusion.
34The same can be said for neurologist Dr. Rehan Dost who completed the IE neurological assessment report, dated June 26, 2018. I note that Dr. Dost does not appear to have reviewed the Job Site Analysis, which lists the essential tasks of the applicant’s position and the heavy physical demand level required, as it is not referenced in the report or included in the list of documents reviewed. Further, Dr. Dost undertakes no discussion of the heavy physical demand level cited in the Job Site Analysis. I do not find convincing his conclusion that, from a neurological perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.
35I also note that Dr. Dost confirms that, as a result of the accident, the applicant sustained an injury to his neck resulting in pain that radiates down his right arm with numbness and tingling. Specifically, Dr. Dost states that the applicant has a right C7 nerve root radiculopathy as he was positive in the Spurling test on the right and imaging of the cervical spine shows severe foraminal narrowing pre-existing at C6/C7 which would predispose into the development of the problem. Dr. Dost concluded it was related to the accident as the symptoms were immediate with the applicant reporting cervical pain within days of the accident that began radiating down the right arm roughly in the C7 area with tingling. Dr. Dost further opined that the applicant does have advanced degenerative change with severe foraminal narrowing in the cervical spine which would have predisposed him to this condition.
36Given the above, and based upon the totality of the evidence presented, I find that the applicant has established on a balance of the probabilities that he suffers a substantially inability to perform the essential tasks of his pre-accident employment. I find that he is unable to meet the heavy physical demand level of his pre-accident employment as a steel worker.
37I will now turn to causation.
iii. Causation
38The respondent points out that causation is an issue with respect to the applicant’s headaches, low back pain and right leg radiculopathy. I do not find causation to be an issue.
39The respondent relies upon the IE neurology report of Dr. Dost who states that the applicant would not satisfy the criteria for any posttraumatic headache disorder as they began many months after the accident and would best be classified as chronic tension-type headache.
40With regards to the applicant’s lower extremity symptoms, Dr. Dost opined that he likely has discogenic low back with right L5 root symptoms. However, this was not related to the accident as the right leg symptoms began spontaneously in January 2018 and the temporal lag is not compatible with traumatic causation. However, I note that Dr. Dost acknowledges that the applicant had lower back pain initially after the accident. The respondent also acknowledges that Dr. Dost opined that the applicant did suffer from a soft tissue injury to his lower back in the accident.
41I have considered Dr. Dost’s opinion with regards to causation and found it unpersuasive. I note that the applicant’s medical records reference headaches and low back symptoms immediately after the accident which have continued to date. On May 8, 2015, in his clinical notes and records, the applicant’s family doctor, Dr. Patel, notes the applicant’s headache symptoms and his complaints of lower back pain as well as some neck pain. A physiotherapy progress note, dated June 1, 2015, states the applicant reports facial numbness and lower back pain that is increasing but centralizing. In the Disability Certificate dated June 18, 2015, the applicant states that he has neck and low back pain. On December 21, 2015, Dr. Giammarco noted that the applicant reported immediate neck pain and headache after the accident.
42In addition, the fact that the applicant’s low back pain symptoms have increased, or his symptoms exacerbated over time does not necessarily lead to the conclusion that the accident is no longer the cause of his symptoms or his injuries.
43Lastly, I note that IE assessor orthopedic surgeon, Dr. Taromi, did not find a causation issue. Dr. Taromi found that the applicant’s accident related injuries were consistent with cervical spine and lumbar spine sprain and strain with right side upper and lower extremity symptoms. Dr. Taromi also found that the applicant has remained with a degree of associated headache.
44I find that with regards to his headaches and low back pain and right leg radiculopathy, the applicant has met his burden in establishing causation.
B. Post-104 Income Replacement Benefit
45I have considered the totality of the submissions and find that the applicant has not met his burden in establishing, on a balance of probabilities, that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.
46To be entitled to an ongoing IRB more than 104 weeks after the accident, the applicant must satisfy the post-104 test. The test for entitlement to a post-104 IRB is set out in section 6(2)(b) of the Schedule, and provides that the insurer is not required to pay an IRB after the first 104 weeks of disability unless, as a result of the accident, the applicant is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. This is referred to as the “complete inability” test and is more stringent than the pre-104 IRB test.
47I note that several factors inform the analysis including the functional abilities of the applicant to engage in work reasonably suited to his age, the nature of the work, the status it affords, training, education, and the level of renumeration.
48I have considered the applicant’s submissions including that, at the 104 week mark, the applicant was 55 years old and that although his pre-accident duties included some sedentary office work, his main duties involved heavy labour work. He asserts that it is unrealistic to believe that a person his age and disability would be hired for a sedentary office job even with a construction company over younger healthier candidates. Also, that his ongoing capacity for work is substantially diminished in terms of status and reward as he is now restricted to office work, or part-time work and less income. I do not find these submissions persuasive. I note that the post-104 IRB test is a higher bar than the pre-104 IRB test, and the applicant has not met his burden.
49The evidence before the Tribunal is that the applicant has for years now worked in his position as a steel worker albeit in a modified capacity. He continues to perform some sedentary/light duties and office work including bidding for projects, pricing jobs, preparing construction plans and invoicing customers.
50The applicant is also the owner and operator of his own small business and has all the experience and expertise that that entails, including managing employees, budgets and finances. The respondent correctly points out that the applicant has provided no evidence to suggest that he requires any accommodations with respect to his function as an owner of a business.
51I find that there is no convincing evidence before the Tribunal documenting the applicant’s inability to engage in any employment for which he is reasonably suited.
52I further note that the applicant’s medical professionals did not conduct an analysis of the post-104 test or make convincing substantive submissions in this regard.
53I find that the applicant has not provided persuasive evidence that he is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
54The applicant is not entitled to a post-104 IRB.
C. Interest
55The applicant is entitled to interest in accordance with the Schedule on those incurred overdue IRBs that I have found the applicant to be entitled.
CONCLUSION
56After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I find that:
(a) The applicant is entitled to receive an income replacement benefit in the amount of 231.17 weekly for the pre-104 period;
(b) The applicant is not entitled to receive an income replacement benefit for the post-104 period; and,
(c) The applicant is entitled to interest on the allowed IRB as per the Schedule.
Released: August 4, 2020
Rupinder Hans
Adjudicator