D.P. v. TD Insurance Meloche Monnex, 2020 CanLII 72507

Citation: D.P. v. TD Insurance Meloche Monnex, 2020 ONLAT 19-007315/AABS

Released Date: 09/23/2020

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:

D. P. Applicant

and

TD Insurance Meloche Monnex Respondent

DECISION AND ORDER

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Ovidiu E. Klein, Paralegal

For the Respondent: Amanda Colarossi, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, D.P., was injured in a motor vehicle accident on November 10, 2016. She sought benefits from the respondent, TD General Insurance Company (“TD”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2TD denied D.P.’s claim for income replacement benefits (“IRBs”). D.P. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES

3The issues in dispute were identified and agreed to as follows:

i. Is D.P. entitled to receive a weekly income replacement benefit in the amount of $315.27 per week for the period May 24, 2019 to November 24, 2019?

ii. Is D.P. entitled to interest on any overdue payment of benefits?

FINDING

4I find that D.P. is entitled to an IRB in the amount of $315.27 per week, for the period of May 24, 2019 to November 24, 2019. Interest is payable pursuant to s. 51 of the Schedule.

LAW

5Entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment?

ANALYSIS

A. The essential tasks of D.P.’s employment

6TD obtained Job Site Analysis Reports² of D.P.’s workplaces, which lists the essential tasks of her employment as including:

a. Server-waitress – Sunset Grill i. Carry plates ii. [carry] trays full of drinks iii. Fast paced environment iv. Very physical v. Heavy plates vi. Moving chairs vii. Punching in orders viii. Full time

b. Usher – Princess of Wales Theatre i. Scan tickets and direct patrons ii. Escort patrons to seats iii. Stand near exits iv. Operate sales call to sell merchandise to patrons v. Part time

7The Job Site Analysis for Sunset Grill notes that D.P.’s position requires a Light Physical Demand Level which is defined as handling 11 to 22 pounds. The analysis for the Princess of Wales Theatre rated this occupation at the Limited Strength Level. There was no specification provided as to the handling weight.

8For both positions, D.P. reports frequent to constant handling. She reports frequent standing, walking, carrying up to 20-30 lbs, forward and overhead reaching, bending/stooping.

9Based upon the evidence presented, I find that the essential tasks of D.P.’s employment are descriptively found in the Job Site Analysis and that her positions require a physical demand level that requires a limited and light level.

B. Is D.P. substantially unable to perform the essential tasks?

10I find that D.P. has established on a balance of the probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment as a waitress and usher. D.P. has provided persuasive evidence regarding how her impairments specifically affect her functionality and ability to perform the essential tasks.

11D.P. submits that she meets the IRB test on the basis of her left wrist, injury. She contends that she sustained a fractured left wrist injury as a result of the accident resulting in continuous pain with radiating symptoms which is aggravated by continuous activity at work (i.e. – standing, lifting, carrying with her left hand) and heavy household chores.

12D.P. further asserts that she injured her left shoulder and lower back in the accident and has low back pain and bilateral knee and trapezius pain symptoms. She acknowledges that although her family physician and the orthopaedic surgeon found that the left wrist, left shoulder and low back pain are directly a result of the accident, TD’s assessors concluded that “she has not exhibited any functional impairment that would substantially interfere with her ability to return to either of her pre-accident employments”. Despite TD’s assessors’ opinions, D.P. submits that her left wrist, left shoulder and low back pain contributes to her inability to perform her essential pre-accident duties. I will discuss TD’s assessor reports below.

13In making a determination, I am persuaded by the findings, or lack thereof, in Mr. Bullard’s report. For example, D.P. stated that bartending duties were a part of the essential tasks of her position at Princess of Wales theatre. Mr. Bullard’s report did not contain any evaluation of the bartending duties. I find this is a significant factor that would not allow for a fulsome assessment. In addition, Mr. Bullard noted that D.P attempted lifting strength exercises but was unable to continue due to pain. Further, D.P. reported increased pain at the end of testing. Mr. Bullard opined that D.P.’s test results were a result of her low effort. In his conclusion, Mr. Bullard was unable to provide an objective opinion on whether D.P. suffered any functional limitations. It is interesting to note that Mr. Bullard’s report did not consider that the “low effort” was due to pain, which may have affected the testing results.

14I find the report of Dr. West, orthopaedic surgeon, to be persuasive. In his February 4, 2019 report on behalf of D.P., Dr. West, notes D.P.’s pain complaints regarding her left wrist, left shoulder and low back. The pain complaints are similar to those made to Mr. Bullard, in terms of area of pain and reported level of pain. Dr. West notes the types of activities that aggravate the pain, which is also supported by Mr. Bullard’s report (i.e.: lifting, carrying, pushing or pulling of heavy objects and reaching using her left upper extremity). Dr. West also notes that D.P. has not been able to return to either her job as a server due to left upper extremity pain and limited function. Dr. West also indicated that a return to her position as an usher has been halted due to neck and back pain, as well as left shoulder and left wrist pain with limited function. Dr. West concluded that D.P.’s prognosis with being able to resume the essential tasks in either of her two pre-accident jobs is guarded.

15During the assessments with the insurer’s assessor, Mr. Bullard, and, on her behalf, Dr. Michael West, orthopaedic surgeon, D.P. reported pain during various aspects of testing in her left wrist and lower back. Mr. Bullard and Dr. West noted that D.P.’s lower back pain was aggravated due to prolonged sitting or standing. At times during the assessment with Mr. Bullard, D.P. would stand due to lower back pain.

16On behalf of TD, Dr. Weisleder, orthopaedic surgeon, diagnosed D.P. with a fracture of her left distal radius(wrist), lumbar strain, left and right hip strain injuries. It’s important to note that Dr. Weisleder concluded that the treatment plan for which her repot was generated was partially reasonable and necessary. Dr. Weisleder’s report did not provide an opinion on whether D.P. suffered a substantial inability to perform the essential tasks of her employment, therefore, I place little weight on Dr. Weisleder’s report.

17I am persuaded by the March 2, 2020 report of Chiropractor Dr. Timothy Damaso, on behalf of D.P. In his report, Dr. Damaso notes that D.P. suffers from chronic post-traumatic headaches, cervical spine strain/strain, bilateral shoulder strain/sprain, left wrist fracture, thoracic spine strain/strain, lumbar spine strain/sprain and left knee strain/sprain as a result of the accident. As with the reports of Mr. Bullard, Dr. West and Dr. Weisleder, D.P. reported to Dr. Damaso, difficulties with prolonged sitting, prolonged standing and overhead tasks, lifting and repetitive movements relating to the left upper extremities.

18During his assessment, Dr. Damaso noted mild to moderate restricted range of motion in her bilateral shoulders, mild to moderate restricted ranges of motion in her left wrist. Maximum strength testing indicated below average results for pinch and grip strength. Dr. Damaso opined that these findings indicate upper limb weakness. Lifting strength testing was incomplete due to D.P.’s pain complaints in her neck, mid back, left wrist and low back. Dexterity testing resulted in average gross dexterity using her right hand and below average dexterity using her left hand.

19Dr. Damaso’s report stated that D.P. does not meet the physical demands of the essential tasks of her employment. Dr. Damaso opined that D.P. is unable to resume her full pre-accident work duties due to the severity of her injuries. Dr. Damaso concluded that D.P.’s performance and effort was a reasonable representation of her abilities.

20Given the above, and based upon the totality of the evidence presented, I find that D.P. has established on a balance of the probabilities that she suffers a substantially inability to perform the essential tasks of her pre-accident employment. I find that she is unable to meet the physical demand levels of her pre-accident employment as a waitress and usher.

CONCLUSION

21After considering the evidence and submissions, I find that:

a. D.P. is entitled to receive an income replacement benefit in the amount of $315.27 weekly for the pre-104 period of May 24, 2019 to November 24, 2019; and

b. D.P. is entitled to interest on the payable IRB as per the Schedule.

Footnotes

1. 1O. Reg. 34/10
2. 2Respondent’s Brief - April 1, 2019; Jobsite Analysis - Waitress prepared by Robert Bullard, Kinesiologist, April 5, 2019; and Jobsite Analysis - Usher prepared by Robert Bullard, Kinesiologist, April 17, 2019