Citation: S.S. vs. The Personal Insurance Company, 2020 ONLAT 19-004026/AABS

Date: August 28, 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:

S.S.

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Jacqueline Ozor, Counsel

For the Respondent:

Jamie Elsasser, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, S.S., was injured in an automobile accident on January 23, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from The Personal Insurance Company (“The Personal”), the respondent.

2The Personal was of the opinion that all of S.S.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² The Personal also terminated S.S.’s income replacement benefits on January 27, 2018. As a result, S.S. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following are the issues to be decided:

(i) Are S.S.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG?

(ii) Is S.S. entitled to an income replacement benefit of $282.38 per week from January 27, 2018 to date and ongoing?

(iii) Is S.S. entitled to interest on any overdue payment of benefits?

RESULT

5I find that:

(i) S.S.’s injuries sustained as a result of the accident are not predominantly minor and, as a result, he is removed from the MIG;

(ii) S.S. is not entitled to income replacement benefits from January 27, 2018 to date and ongoing; and

(iii) S.S. is not entitled to interest as there are no benefits that are overdue.

ANALYSIS

Did S.S. sustain a predominately minor injury?

The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7The onus is on S.S. to show that his injuries fall outside of the MIG.³

Accident-Related Injuries – Psychological

8I find that S.S. has proven on a balance of probabilities that he sustained psychological injuries as a result of the accident and, therefore, his injuries fall outside of the MIG.

9In his submissions, S.S. argues that he should be removed from the MIG based on, among other reasons, “the injuries which arose as a result of the accident.”⁴ S.S. relied upon a Disability Certificate (“OCF-3”) dated February 8, 2017 which was completed by Rashim Kakkar, physiotherapist, to demonstrate that he suffered anxiety disorders and depression as a result of the accident. While I do not agree that Mr. Kakkar listed these conditions in the February 8, 2017 OCF-3, or that as a physiotherapist he would be the appropriate professional to diagnose such conditions, there is other evidence before me to support a finding that S.S. sustained a psychological injury as a result of the accident.

10Both parties submitted as evidence for the hearing the clinical notes and records (“CNRs”) of Dr. Yin Sho Hsu, S.S.’s family physician. Dr. Hsu’s March 7, 2017 CNR entry clearly notes anxiety and Dr. Hsu prescribes S.S. escitalopram, an anti-depressant, for daily use at this appointment. Dr. Hsu’s CNRs indicate that S.S. was prescribed with escitalopram at least until May 23, 2017 which was prior to S.S.’s second accident on June 23, 2017. Dr. Hsu’s CNRs, which were provided from April 22, 2014, show no history of any psychological complaints or diagnoses and no medication being prescribed to S.S. for any psychological conditions prior to the accident.

11The Personal submitted as evidence for the hearing a Psychology Insurer’s Examination (“IE”) Report by Dr. Terra Seon, psychologist, dated November 20, 2017⁵ in which Dr. Seon opined that S.S. did not suffer significant psychological impairments in direct relation to the injuries sustained in the accident which would warrant a psychological diagnosis.⁶ I place little weight on Dr. Seon’s opinion and her report for several reasons. First, Dr. Seon acknowledges that S.S. reported to her continued adjustment difficulties. Nevertheless, Dr. Seon opined that these concerns could not be seen as a direct result of the subject motor vehicle accident⁷ without any rational or discussion supporting this opinion. Second, Dr. Seon did not review Dr. Hsu’s CNRs in preparation for her assessment of S.S. or her resulting report. As a result, important information is lacking from her assessment as, for instance, she only reports on S.S.’s pre-accident and current medication.⁸ There is no discussion in Dr. Seon’s report about S.S. being prescribed escitalopram by Dr. Hsu. Finally, while Dr. Seon’s report included information about S.S.’s second accident, the date upon which Dr. Seon noted that second accident occurred is incorrect throughout her report.

12For the reasons set out above, I find that S.S. has proven on a balance of probabilities that he sustained a psychological condition, namely anxiety, as a result of the accident. As such, I find that S.S.’s injuries injuries are not predominantly minor and, therefore, are not subject to treatment within the MIG.

Income Replacement Benefits

13S.S. is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.

14For the reasons that follow, I find that S.S. is not entitled to IRBs for the period of January 27, 2018 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (January 27, 2018 to January 23, 2019)

15The 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 suffers a substantial inability to perform the essential tasks of his pre-accident employment within 104 weeks after the accident.

16S.S. bears the burden of proving on a balance of probabilities that he is entitled to IRBs for the period from January 27, 2018 to January 23, 2019.

Essential tasks of S.S.’s pre-accident employment

17I accept that at the time of the accident, S.S. was employed full-time as a Stock Clerk for [The Store] based on the [The store’s] by-weekly payment statements submitted as evidence.

18The only information before me regarding the tasks of S.S.’s pre-accident employment is found in the Functional Capacity Evaluation IE Report dated November 20, 2017⁹ and in the Job Site Analysis – File Review IE Report dated November 20, 2017¹⁰ which were both completed by Mr. Dennis Polygenis, physiotherapist. S.S. reported to Mr. Polygenis that he completed the following tasks as a Stock Clerk:

(i) Unloading merchandise from delivery trucks;

(ii) Lifting/carrying bundles of merchandise or boxes weighing up to 80 lbs;

(iii) Frequently handling a variety of items found in a [The store] ranging from small household items to furniture and electronics weighing up to 50 lbs;

(iv) Pushing/pulling a pump truck to move pallets of merchandise;

(v) Placing merchandise onto showroom and stocking shelves; and

(vi) Engaging in prolonged walking, standing, handling and immediate reaching.

19Having received no submissions from The Personal disputing S.S.’s tasks of his pre-accident employment as reported to Mr. Polygenis, I accept that the tasks listed in paragraph [18] above were the essential tasks of S.S.’s pre-accident employment as a Stock Clerk.

Substantial inability to perform the essential tasks of his pre-accident employment

20I find that S.S. has failed to prove on a balance of probabilities that he was substantially unable to perform the essential tasks of his pre-accident employment as there is no evidence before me that is from the period in dispute that I place weight on that supports S.S.’s claim for IRBs.

21For example, S.S. only submitted one OCF-3 dated February 8, 2017 which confirmed that S.S. was unable to perform the essential tasks of his pre-accident employment and that he could not return to work on modified hours/duties. This OCF-3, however, pre-dates the period in dispute by almost one year and the anticipated duration of disability, which was stated as 9 to 12 weeks, also expired well before the period in dispute.

22S.S. also submitted the CNRs of Dr. Hsu and argued that certain CNR entries show that S.S. was unable to return to his pre-accident employment.¹¹ Dr. Hsu’s CNRs were printed May 9, 2018 and show that S.S.’s last appointment prior to this date was on November 28, 2017, which was also before the period in dispute for IRBs. Dr. Hsu also confirmed via correspondence to The Personal dated November 8, 2019 that S.S.’s last visit to his office was on November 28, 2017.¹²

23Furthermore, Dr. Hsu noted that S.S. wanted to return to work despite still reporting neck and lumbar pain in a November 28, 2017 CNR entry. On this date, Dr. Hsu provided a note indicating that S.S. could return to work on modified/light duties restricting S.S.’s lifting to 5kg and standing and sitting to 30-minute intervals. Dr. Hsu also noted that it was preferred that S.S. return to a desk job in an office setting. While I acknowledge that Dr. Hsu imposed restrictions on S.S.’s return to work in which effectively rendered S.S. unable to complete most of the essential tasks of his pre-accident employment, this note was provided 2 months prior to the period in dispute and I have no information if S.S.’s condition worsened, remained stable or improved between this visit and January 27, 2018, which is the beginning of the period in dispute for S.S.’s claim for IRBs, as no medical documentation has been provided by S.S. beyond November 2017.

24In his submissions, S.S. argued that he attempted more than one return to work but was unable due to his injuries.¹³ I was not, however, directed to any evidence to support this submission. S.S.’s income tax returns, however, show that S.S. worked for [The Store], [The Farms Ltd.] and [The Tall Ltd.] in 2018. S.S. did not produce the employment files from these three companies despite correspondence from The Personal’s counsel to S.S.’s counsel on December 24, 2019 requesting.

25S.S.’s Ontario Works (“OW”) file, which was submitted as evidence for the hearing,¹⁴ does provide a brief timeline as to S.S.’s employment with these companies in 2018. S.S.’s OW file notes shows that S.S. worked at [The Farms Ltd.] the week of August 24, 2018 for two days but reported that S.S. was unable to return due to back pain. A September 25, 2018 entry noted that S.S. failed to attend work at [The Wash] as he was informed that he would be required to lift 50 to 70lbs repeatedly and that S.S. believed that this requirement would have been too strenuous for him. S.S. also reported on September 25, 2018 that he had an interview the following day to obtain employment as a machine operator. Finally, on November 30, 2018, S.S. reported that he had an interview the following week with [The Tall Ltd.] He also reported in November 2018 that he was interested in obtaining his DZ licence to obtain full-time work as truck driver.

26While some notes in S.S.’s OW file indicate that S.S. discontinued work due to back pain and failed to accept an employment position due to lifting requirements, I do not place weight on these reports by S.S. as they are not corroborated by any medical evidence before me. The evidence that is before me is that S.S. did not return to Dr. Hsu at any time between November 28, 2017 and November 8, 2019 and did not report any employment related difficulties or accident related impairments during this time as there are no CNR entries between these two dates. There is also no evidence that S.S. was attending any physical treatment when he reported employment difficulties as the last day he attended treatment at MovementPhsyios Inc. was on September 6, 2017, even though S.S. has still not exhausted his medical rehabilitation benefits under the MIG.

27S.S. also relied upon Mr. Polygenis’ November 20, 2017 Functional Capacity Evaluation IE Report to support his claim for IRBs. S.S. submitted that Mr. Polygenis reported that S.S. could not participate in enough tests to provide a work tolerance level or job match of lifting upwards of 80lbs in order to make a determination as S.S. was in too much pain to complete the majority of the tests.¹⁵ I disagree with S.S.’s selective summarization of Mr. Polygenis’ report. The portion of Mr. Polygenis’ report referred to by S.S. is correctly recited as follows:

[S.S.] could not participate in enough tests to provide a work tolerance level or job match recommendations. During the assessment, [S.S.] was self-limiting to the point of reporting increasing levels of pain/fear of pain aggravation with baseline functional activities. His pain reports were not consistent with fluid movements during informal observations. [S.S.] reported experiencing too much pain to complete the majority of the tests (my emphasis added).¹⁶

28Mr. Polygenis’ additionally stated:

[S.S.] demonstrated pain focused and self-limited behaviour throughout the evaluation process to the point of declining to complete or participate in a significant number of tests. For the tests that were performed, [S.S.] demonstrated inconsistent effort through failed cross-reference validity tests and statistical measures of effort validity (my emphasis added).¹⁷

29Mr. Polygenis’ ultimate opinion was that S.S.’s test results were not representative of S.S.’s current functional abilities.¹⁸ Therefore, I do not agree with S.S. that Mr. Polygenis’ November 20, 2017 Functional Capacity Evaluation IE Report supports S.S.’s position that he was substantially unable to perform the essential tasks of his pre-accident employment as it was clear that due to S.S.’s self-limiting and inconsistent effort, Mr. Polygenis’ testing results were invalid. Further, S.S.’s reporting of pain during his testing does not establish on a balance of probabilities that he meets the eligibility test for IRBs within 104 weeks of the accident.

30S.S.’s pain reporting was also questioned by Dr. Andrzej Gwardjan, physiatrist, in the Physiatry IE Report dated November 20, 2017.¹⁹ In this report, Dr. Gwardjan stated:

From a physical perspective, [S.S.’s] ongoing subjective complaints of pain notwithstanding, the results of the physical examination failed to demonstrate any major consistently reproducible and corroborative residual objective signs of musculoskeletal impairments and as such, there is no associated disability which would result in a substantial inability to perform the essential tasks of [S.S.’s] employment as a result of the accident (my emphasis added).²⁰

31In the end, Dr. Gwardjan opined that he would expect S.S. to be able to return to his pre-accident employment as of his assessment on November 8, 2017.²¹

32For all of the reasons set out above, I find that S.S. has failed to prove on a balance of probabilities that he was substantially unable to perform the essential tasks of his pre-accident employment from January 27, 2018 to January 23, 2019 and, therefore, is not entitled to IRBs during this period.

Entitlement to IRBs beyond 104 weeks of the accident (January 23, 2019 to date and ongoing)

33To 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.²²

34I find that S.S. has failed to prove on a balance of probabilities that he is entitled to IRBs for the period from January 23, 2019 to date and ongoing.

35Dr. Hsu’s November 28, 2017 note confirmed that S.S. could work at a desk job in an office setting well before 104 weeks after the accident.²³ Also, S.S.’s OW file noted that S.S. continued to interview for employment positions into May 2019. Finally, S.S.’s signed application for OW benefits dated March 13, 2018, prior to the 104 weeks post-accident period, indicated that he understood the eligibility criteria which included his responsibility to participate in employment assistance activities including looking for work or better work. Therefore, as S.S. was able to engage in any employment at least as early as November 28, 2017 as demonstrated by Dr. Hsu’s note, I find that S.S. has failed to prove entitlement to IRBs in the period of 104-weeks post-accident.

Interest

36As there are no overdue payment of benefits, no interest is payable.

CONCLUSION

37For the reasons outlined above, I find:

(i) S.S.’s injuries sustained as a result of the accident are not predominantly minor and, as a result, he is removed from the MIG;

(ii) S.S. is not entitled to income replacement benefits; and

(iii) No interest is payable as there are no overdue payment of benefits.

Released: August 28, 2020

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