B.L.J. v. The Co-Operators Insurance Company, 2020 CanLII 94818

DECISION AND ORDER

Citation: B.L.J. vs. The Co-Operators Insurance Company, 2020 ONLAT 18-012005/AABS

Released Date: 11/12/2020

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:

B.L.J.

Applicant

and

The Co-Operators Insurance Company

Respondent

ADJUDICATOR: Marisa Victor

APPEARANCES:

For the Applicant: [B.L.J.], Applicant Frank E. McNally, Counsel

For the Respondent: Bruce Keay, Counsel

Court Reporter: A.S.A.P. Reporting Services Inc.

HEARD: In-Person: November 19-22, 2019 HEARD: by Video-conference: April 28, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, B.L.J., was involved in an automobile accident on September 24, 2016, and sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent (“Co-operators”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

2The applicant specifically appeals the denial of her claims for income replacement from 2017 onward, attendant care from 2018 onward and two medical benefit plans submitted by her occupational therapist.

ISSUES IN DISPUTE

3The issues in dispute are as follows:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $228.00 per week for the period of October 17, 2017 to date and ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $2,711.84 per month for the period of October 17, 2018 to date and ongoing?

iii. Is the applicant entitled to receive a medical benefit in the amount of $968.84 for occupational therapy, recommended by Functional Rehabilitation in a treatment plan submitted on June 12, 2018, and denied by the respondent on October 17, 2018?

iv. Is the applicant entitled to receive a medical benefit in the amount of $4,435.48 for occupational therapy, recommended by Functional Rehabilitation in a treatment plan submitted on April 27, 2018, and denied by the respondent on October 17, 2018?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4I find that on a balance of probabilities the applicant has established her entitlement to IRB benefits for the period of October 17, 2017 and ongoing and applicable interest. I also find that the applicant has not established her entitlement to attendant care benefits from 2018 onward or the medical benefits recommended by Functional Rehabilitation. There will be no award under Regulation 664.

BACKGROUND FACTS

5Prior to the accident, the applicant worked as a cook at [a restaurant], her sister and brother-in-law’s restaurant in [City 1], Ontario.

6After the accident, the applicant did not work for several months. She received income replacement benefits of $400 per week until August 16, 2017.

7The applicant began transitioning back to work in February 2017 by first volunteering at [residence] (the “Residence”), a residence for assisted living in [City 2], Ontario. The owner is [K.B.] (“K.B.”). The applicant had previously worked at the Residence but not in the year leading up to the accident. K.B. encouraged her to volunteer at the Residence. This led to a paid 20 hour per week part-time position in the summer of 2017. K.B. also provided the applicant with two-bedroom residential rental unit almost next door to the residence free of charge beginning in summer of 2018. The applicant lives there with her daughter.

8In the meantime, [the restaurant] burnt down and did not reopen. Regardless of whether the applicant was capable of returning to her previous position as a cook, as of 2018, there was no opportunity to do so.

ISSUE 1 – Is the applicant entitled to IRBs from October 17, 2017 to date and ongoing?

9In order to answer whether the applicant is entitled to IRBs from October 17, 2017 onward, I must determine first whether the applicant was employed at the time of the accident, and then, as a result of and within 104 weeks after the accident, suffered a substantial inability to perform the essential tasks of that employment.¹ (the “Pre-104 IRB Test”)

10I must also determine if, after the first 104 weeks of disability and as a result of the accident, the applicant suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.² (the “Post-104 IRB Test”)

11There is no question that the applicant was employed at [the restaurant] prior to the accident. She did not return to that job and began a different job at the Residence in the summer of 2017 during the Pre-104 IRB period. She continues at that job in the Post-104 IRB period.

12The IRB claim of $228 per week as of August 2017 reflects the deduction from $400 for post-accident income earned by the applicant at the Residence at that time.

Applicant’s Evidence

The Applicant’s Testimony

13The applicant provided the following relevant uncontested background evidence:

a. She has a grade 11 education and did not finish high school.

b. She previously worked at the Residence from 2014 to June 2016 providing personal support type assistance to the residents.

c. Just prior to the accident she was working at [the restaurant] and earning approximately $1400 biweekly, or $700 weekly. This amount was distributed as $1000 by cheque every two weeks and an additional $400 in cash. Her hours of work were 10-12 hours per day. Her 2015 tax income return shows a reported income of $27,186.

d. Post-accident, on October 16, 2016, Melanie Lapointe, a physiotherapist, completed an OCF-3 form diagnosing the applicant with WAD II and provided the opinion that the applicant suffered a substantial inability to do her pre-accident job as a cook. The applicant began receiving IRBs as of October 27, 2016 until August 16, 2017.

e. On November 24, 2016, Dr. Khan, her family doctor, completed at OCF-3 diagnosing the applicant with whiplash, left shoulder strain, worsening headaches, anxiety and depression.

f. In June 2017, the applicant was diagnosed with Major Depressive Disorder, Post-Traumatic Stress Disorder and Somatic Symptom Disorder.

g. In October 2017, following section 44 assessments, the respondent confirmed the termination of the IRB benefit the applicant had been receiving.

14The applicant testified about her history, including work, school and family history. She stated that she didn’t finish high school and eventually moved in with her sister. To earn her keep she worked for her sister and brother-in-law at [the restaurant]. She started as a dishwasher and moved up to cook. She did take an apprenticeship at [college] in culinary arts over 20 years ago, but she did not complete the program.

15The applicant testified about the work requirements at [the restaurant]. She said that she did everything and anything including preparing food, cooking on the line, cutting home fries, preparing meat, and making salads. She described it as a very busy and popular restaurant serving Italian and Chinese food. She described the work as physical involving lots of lifting and no breaks. She worked from 9 am until 7 pm or 8 pm six days a week.

16The applicant testified that she did not return to work at [the restaurant] for several reasons. These include her post-accident pain and injuries, the toxic work environment she experienced at the restaurant and eventually the fact that the restaurant burnt down and so closed permanently in 2018.

17The applicant also described her work at the Residence. She had worked there in the past for K.B. The day of the accident she had been preparing a food platter for a BBQ that K.B. had invited her to and was on her way there when the car accident happened. K.B. was one of the first people the applicant called as she wanted K.B. to know about the accident and that the applicant could not attend the BBQ.

18The applicant began volunteering again at the Residence two times a week in the spring of 2017. At first, K.B. would pick her up to go for breakfast and then would take her to the Residence. The applicant enjoyed the comfort of the Residence.

19In the summer of 2017, she accepted a part-time job there. Her duties included answering phones, booking drivers, talking to residents about their needs and eventually helping out in the kitchen. She would also ensure the attendance of other staff members or subcontractors during her shift. The applicant described the work as not that hard. She said the food preparation involved putting prepared frozen foods in the oven and making toast. She stated that she takes a lot of breaks, works while in pain and that she works so that no one thinks she is useless.

20The applicant testified that she continues to work at the Residence and receives $560 biweekly. In March 2020, her hours of work increased to 25 hours a week due to Covid-19.³

21The applicant testified that although she only works 20-25 hours a week, she attends the Residence at all hours, particularly during the early morning. She states that she has trouble sleeping and will wake up at 2 am and then head to the Residence. She testified that she likes it there and likes to talk to the residents. She testified that there was no expectation from her employer that she work more than her scheduled hours.

22In her testimony, the applicant stated that she does not think she could do any other job due to her limitations, including her cognitive issues. She stated that she has on occasion given the wrong medicine to a resident. In addition, when she is feeling unwell or has bad headaches, she has her daughter fill in for her at work.

23The applicant also testified that, as of August 2018, she moved to an apartment owned by K.B. that is next door to the Residence. She does not pay any rent. She lives there with her daughter. The applicant stated that K.B. offered her the apartment due to her limited income and because she is her friend.

24The applicant described her physical symptoms including her unremarkable pre-accident health, her symptoms in the immediate after-math of the accident and then how her symptoms progressed as time passed. She testified that after physiotherapy ended in December 2016, until she began work in July 2017, she saw no improvement in symptoms. Then her symptoms began to get worse. At the time she returned to work she described her symptoms as including severe headaches, hip pain, lower back pain, and head and neck pain. She testified that these are the same symptoms she has today but that the pain is greater and headaches more severe. She also complained of vertigo and balance issues, as well as memory and cognitive deficiencies since the accident.

25The applicant described her functional limitations including that sitting and standing causes pain, walking hurts and she tries not to lift anything. She also described her emotional symptoms including her very low mood, anxiety, and depression. The applicant described her medication regime as including taking Tylenol 3, naproxen, and anti-depressants.

26The applicant testified that prior to the accident, and until the summer of 2018, she lived in a 2-bedroom second floor apartment in [City 1]. In August 2018, she moved to a 2-bedroom apartment located on a main floor in [City 2]. The new apartment is owned by K.B. and is next door to the Residence. The applicant does not pay rent. She lives there with her daughter.

27In cross-examination, the applicant was challenged regarding her relationship with her family and whether those difficult relationships caused a toxic environment at [the restaurant]. She was questioned as to whether that toxic environment was the reason she did not return to work there. She agreed there was a lot of drama. She also agreed that she had quit in the past due to her bad relationship with her brother-in-law. The applicant stated that her relationship with her sister always involved fighting.

28The respondent cross-examined the applicant using surveillance evidence of her daily activities. The respondent challenged the applicant with evidence that showed her attending the Residence anywhere from 10-12 hours a day, 5 days a week as of the spring of 2017. The applicant agreed that she often attends at the Residence from 10-12 hours; however, not all of these are work hours. She stated that she often arrives early and just sits there and talks to the residents.

29The applicant was also challenged on her relationship with her daughter who she states has provided her with attendant care. The applicant agreed that she was not on speaking terms with her daughter at the time of the accident but that they reconciled about a year later in the spring of 2017. She did agree that her daughter “does her own thing”, was unsure whether her daughter attended the [university] and was unsure whether her daughter earns income. The applicant also agreed that her daughter fills in for her at the Residence when she does not feel well.

30Finally, the applicant was challenged on her lack of disclosure of more recent tax returns and pay stubs. She had disclosed pay stubs up until December 2017. The respondent questioned the applicant in relation to the benefits she received at the Residence, namely her ability to eat for free at the Residence and her free accommodation. Notably, the applicant’s counsel objected to those questions on the basis they related to the quantum of IRB entitlement. Applicant’s counsel stated that the only issue at this hearing is the entitlement to IRBs and not the quantum. I allowed the questions.

K.B.’s Testimony Regarding the Applicant’s Work at the Residence

31K.B. testified that she knew the applicant prior to the accident when she had worked previously for the Residence. After the accident, K.B. was concerned about the applicant and assisted her with taking her to some appointments. K.B., a psychotherapist herself, began casually using some of her Cognitive Behavioural Therapy (CBT) psychotherapy training on the applicant in an effort to assist her with her post-accident struggles. K.B. testified that the applicant is unaware that CBT techniques are being used on her.

32K.B. testified that she encouraged the applicant to volunteer at the Residence. The applicant began volunteering in February 2017. K.B. testified that in June 2017 she offered the applicant a part-time job at the Residence. The applicant was paid $228 per week for 20 hours of work.

33K.B. testified that she does not supervise her staff closely. She is rarely at the Residence herself as she also runs a busy psychotherapy practice and has a young child. Staff hours are flexible.

34K.B. testified that the applicant performed only light duty work at the Residence. The applicant’s responsibilities including checking that the residents were eating, ensuring cereal and coffee were available, preparing toast, handing out medication and taking telephone messages. The residents are responsible for their own self-care.

Dr. Smith’s Testimony in Relation to the Applicant’s Chronic Pain

35Dr. Smith, an anesthesiologist and chronic pain specialist, testified in support of the applicant. He stated that he assessed her on July 29, 2019. He testified that in doing a chronic pain assessment he would do a thorough history of the applicant including collecting medical documents, reviewing documentation, taking a history of the applicant including social and work history, discussing issues from the documentation and conducting a physical exam. He analysed the medical journey of the applicant, treatments, test results, pain from a personal perspective, consistency of reports and effect of chronic pain on the applicant’s life.

36He found that the following diagnoses were related to her accident: chronic pain syndrome associated with psychological disturbance, chronic headaches, chronic neck, low back and left shoulder pain. As a result, the applicant has difficulty with prolonged walking, sitting, standing, heavy lifting and repetitive activities, and her sleep is disrupted. Dr. Smith found that the global impact of chronic pain on the applicant’s condition included physical restrictions, deconditioning, poor sleep, altered cognition and severe mood changes from a mood disorder. All these prevent her from returning to working as a cook and limits her other vocational options.

37Dr. Smith testified that he explored the applicant’s ability to work in his report. To do so he looked at the applicant’s pre-accident job as a cook and compared the high pressure and physical dimensions of that job to her current part-time job at the Residence. He also discussed that the applicant was highly accommodated by K.B. at her new job.

38Dr. Smith testified that the applicant’s current employment at the Residence showed that she was capable of some work but that she was limited by her chronic pain syndrome which affects her ability to work consistently and productively. Two factors assist her; first, her current employer is highly accommodating; and second, the Residence, unlike [the restaurant], is not a competitive work environment.

39Dr. Smith also critiqued the report of Dr. Perera, produced by the respondent. Dr. Smith suggested that Dr. Perera was dismissive of psychosocial factors, overly generalized the applicant’s condition and was impractical in the conclusion that exercise could overcome chronic pain.

Katie Greenough’s Testimony in relation to the Applicant’s Psychotherapy Treatment

40Katie Greenough, registered psychotherapist, testified on behalf of the applicant. Ms. Greenough began treating the applicant after her colleague, Dr. Lee, produced an assessment that found that the applicant has PTSD, somatic symptom disorder and major depressive disorder. Ms. Greenough’s treatment became focused on keeping the applicant safe following disclosure of increased suicidal ideation. She testified that she did not believe the applicant could return to her cook position and that she was only able to work because her current position at the Residence is flexible and supportive.

Dr. Moustgaard’s Testimony in relation to the Applicant’s Cognitive Impairment

41Dr. Moustgaard, a registered psychologist, testified regarding an assessment of the applicant’s neuropsychological and cognitive impairment. Dr. Moustgaard’s assessment was based on the applicant’s current level of psychological functioning since the applicant did not have any records of pre-existing neurological conditions. She found the applicant to be forgetful, have difficulty following conversations and concentrating, as well as repeating herself.

42Dr. Moustgaard stated that the applicant was taking a high quantity of Tylenol. While this does not cause cognitive issues, it can cause headaches, which can impair concentration. She opined that psychological distress and over-medication were compounding the applicant’s injuries and preventing her from returning to work.

43Dr. Moustgaard testified about the applicant’s current position at the Residence which she described as making toast and helping the residents. She noted that the applicant had little family support and was not surprised that the applicant goes to the Residence far more than her work hours require her to. Dr. Moustgaard noted that it was not a viable option for the applicant to return to her cook position considering her difficulty with focus and attention. She stated that a cook position requires concentration for the safe use of knives and hot temperatures found in a kitchen.

44In considering the interview, testing and data, Dr. Moustgaard found that the applicant had a major depressive disorder, anxiety and somatic symptom disorder. Because the applicant failed a validity test, Dr. Moustgaard was unable to provide a cognitive diagnosis. She stated the failed validity test could be due to fatigue or pain, difficulty completing tests or lack of effort.

1In cross-examination, Dr. Moustgaard was asked about her knowledge of the work done at the Residence. She agreed that she did not go into an in-depth level of detail about the work requirements such that she could answer whether the applicant made lunch and supper or was involved in the clean-up. Dr. Moustgaard also agreed that she did not know that the applicant had previously quit her position at [the restaurant] because she felt she was no good at it. She agreed that she did not have the full picture of the responsibilities that applicant has at the Residence.

Respondent’s Evidence

[P.N.]’s Testimony in Relation to the Applicant’s Work at the Residence

45[P.N.], another employee at the Residence, testified as a lay witness for the respondent. She confirmed that the applicant, due to her headaches, often left all the lights off when it was her shift and that the work done by the applicant was light duty work.

Dr. Perera’s Evidence in relation to the Applicant’s Chronic Pain

46Dr. Gihan Perera, physiatrist, was retained as an expert for the respondent. He assessed her and produced a report on October 16, 2017. He noted her complaints as neck pain, headaches, low back pain, left knee and heel pain.

47In regard to the applicant’s headaches, Dr. Perera found that the applicant’s overuse of Tylenol was contributing to her headaches. The applicant reported taking eight tablets a day more than ten days a month.

48Dr. Perera noted that the applicant was in pain but found no structural damage or nerve injury. He concluded that the applicant had soft tissue injuries and recommended a self-directed exercise program. He did not believe that the applicant required attendant care benefits given her reports of self-sufficiency.

49In terms of work capability, Dr. Perera stated that the applicant had no physical restrictions that would actively cause further harm if she returned to her pre-accident employment.

50In cross-examination, Dr. Perera was challenged on his focus on physical symptoms only. He agreed that the applicant’s overuse of Tylenol could be a symptom of chronic pain and that the applicant could indeed suffer from chronic pain. He agreed that he was aware of the connection between chronic pain and psychological impairments. He agreed that chronic pain could lead to physical limitations and affect the ability to work. He agreed that he did not discuss psychological symptoms or refer to the psychological diagnosis made by the applicant’s family doctor in his report.

Dr. Cindy Goodfield’s Evidence in Relation to the Applicant’s Chronic Pain

51Dr. Cindy Goodfield, registered psychologist, testified for the respondent in regard to the applicant’s claim of chronic pain. Dr. Goodfield found that the applicant’s pain and headaches were caused by the accident. She diagnosed the applicant with major depressive episode and specific phobia of driving.

52Dr. Goodfield declined to diagnose the applicant with somatic symptom disorder where physical symptoms manifest from psychological symptoms. She believed it would be therapeutic for the applicant to return to her work as a cook in order to benefit her mental health.

53In cross-examination, the applicant challenged Dr. Goodfield’s failure to diagnose somatic symptom disorder. Dr. Goodfield stated that the applicant didn’t present as pain focused, and that instead, depression was the main issue and bar to returning to work. The applicant’s mood prevented her from functioning as she did before. However, Dr. Goodfield agreed that applicant was unsure as to whether she was physically capable of returning to work at [the restaurant]. Dr. Goodfield agreed that she found the applicant to be genuine in her reporting of symptoms.

54Dr. Goodfield was further challenged on her belief that, even though the applicant suffers from major depression, she could return to work as a cook. When asked about whether the applicant was incapable of returning to work due to pain, Dr. Goodfield stated that it was not for her to say. Dr. Goodfield agreed that the applicant felt she could manage work at the Residence because it does not cause her pain.

Submissions and Analysis

Pre-104 IRB Test

55The applicant submits that she meets the Pre-104 IRB Test of substantial inability to perform the essential tasks of her pre-accident employment. The applicant submits that her pre-accident employment at [the restaurant] was fast paced with long hours. There is no dispute that the applicant was employed at [the restaurant] at the time of the accident and that that position is no longer available. Although the applicant has returned to work, her job at the Residence is on a part-time basis, is flexible and consists of light duties.

56The respondent submits that the applicant did not return to work at [the restaurant] primarily due to the toxic work environment and that this was not reflective of her ability to return to work. The respondent submits that the applicant did not support her evidence that [the restaurant] was a fast-paced work environment as she did not call her sister or brother-in-law to testify, nor did she had a vocational evaluation done.

57The respondent submits that the evidence of Dr. Goodfield and Dr. Perera show that the applicant has failed to show that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as of October 17, 2017. The respondent also relied on the fact that the applicant had returned to part-time work at the Residence by this time. The respondent submits that the surveillance evidence shows that the applicant is capable of attending the Residence for 10-12 hours a day regardless of whether she is being paid to be there.

58The respondent relies on M.M. v Northbridge⁴ where the adjudicator determined that the medical assessor who provided an opinion regarding the applicant’s substantial inability to perform the essential tasks of their pre-accident employment, lacked a thorough understanding of that employment. Here, the respondent states that the applicant’s reliance on Dr. Moustgaard’s report, dated November 2, 2018, states only that the applicant worked as a full-time cook in a restaurant for 40 hours per week. However, the report did not delve into a deep understanding of the applicant’s pre-accident work.

59Given the applicant’s testimony, supported by the testimony and evidence of medical practitioners, I accept on a balance of probabilities that the applicant meets the Pre-104 IRB Test.

60I find that the applicants testimony supports that she meets the Pre-104 IRB Test. The applicant’s testimony was clear that she suffers from physical and mental symptoms that have persisted since the accident and affected her ability to work.

61While there was evidence from the applicant that the working environment at [the restaurant] was toxic, I do not find that the applicant’s relationship with her family was what caused her to stop working there. The evidence supports that it was the accident that caused her injuries, including physical and emotional symptoms and that those were reason for her inability to return to work at [the restaurant]. There is consistent medical evidence that, following the accident, the applicant was in pain and that pain affected her ability to work at her previous employment. I find that it was the symptoms stemming from the accident - her physical injuries and depression - that were the primary barrier preventing her return to work at [the restaurant].

62I find that the medical practitioners who testified, both for the applicant and for the respondent, had similar findings with regard to the applicant’s symptoms. The largest divergence was as to whether the applicant met the criteria for chronic pain syndrome. I find that the applicant’s testimony, that of her employer and that of the medical practitioners, in particular Dr. Smith and Dr. Moustgaard, establish that the applicant suffers from chronic pain and depression such that she is not capable of returning to the fast-paced, high stress and long hours required of her position at [the restaurant]. Dr. Perera also supported the finding that the applicant was in pain that may have affected her return to work. He agreed that he focused on the applicant’s physical complaints and in cross-examination agreed that the applicant’s overuse of Tylenol could be an indication of chronic pain. However, Dr. Perera’s suggestion that a self-directed exercise program could resolve the applicant’s inability to return to work was unconvincing. Dr. Goodfield found that the applicant’s chief concern was depression but when asked about whether pain could have prevented the applicant from returning to work stated that it was not for her to say. I found her evidence inconclusive as to whether or not the applicant suffered from chronic pain syndrome.

63I do not agree that the applicant failed to call evidence regarding the essential tasks of her previous employment or that the medical practitioners who supported her position lacked a thorough understanding of the job. It is clear from their consultations with the applicant that each took a history which involved questions about her pre-accident employment. The applicant was consistent in her description of her duties as a cook and her duties in comparison at the Residence. There is no indication that any of the experts lacked a thorough understanding of her job requirements such that their opinion should be rejected.

64The issue before me is not whether the applicant can prove a certain diagnosis, but instead whether the evidence establishes that she suffers from symptoms substantially interfering with her ability to work. The applicant suffers from pain and headaches such that at her sedentary and low stress position at the Residence, she often has to turn the lights off. On some occasions her daughter fills in for her. This is at a job where she works half the number of hours that she used to. It was undisputed that the work was low stress, flexible and consisted of light duties. It is not reasonable to find that she could have returned to working at [the restaurant], a high-paced, physically demanding job, given her current physical and mental state. I find that the totality of the evidence shows that the applicant suffers from physical pain, chronic pain and depression such that it substantially interferes with her ability to work.

Post-104 IRB Test

Entitlement to Benefits

65The applicant submits that, based on the evidence presented, she also suffers a complete inability to engage in employment for which she is reasonable suited according to the Post-104 IRB Test.

66The applicant relies on case law to show that the term ‘complete inability’ does not prevent an applicant from finding some post-accident employment for which they are not reasonably suited.⁵ If the job is substantially different in nature, status and remuneration then it may not be considered an appropriate alternative.⁶

67The applicant argues that she is working a part-time position at a flexible and accommodating location. The applicant states that the medical evidence from Dr. Smith, Dr. Moustgaard, and Ms. Greenough show that the applicant is not capable of working in a full-time competitive work environment similar to the cook job she maintained prior to the accident. In addition, her limited education and work experience narrows opportunities for reasonably suited employment.

68The respondent states that the applicant’s position is for 20-25 hours a week but that she attends anywhere from 40-60 hours a week at the workplace. At the Residence, the applicant makes simple meals, cleans up, delivers food, hands out medication, deals with emergencies, runs errands and talks with the residents. Finally, the respondent states that the experts retained by the applicant do not state that she meets the Post-104 IRB Test.

69The respondent relies on Applicant v Certas Home Auto Insurance Company⁷ for the proposition that a medical expert’s opinion that an applicant has a complete inability to engage in any employment for which they are reasonably suited must address functional issues and should not just be a general statement. Here, the respondent states, Dr. Smith, the applicant’s pain specialist, did not specifically state that the applicant meets the Post-104 IRB Test. Instead, Dr. Smith gave a general comment that the applicant’s impairments prevent her from being able to return to work and affect her productivity. The respondent states that, similar to Applicant v Certas Home Auto Insurance Company,⁸ Dr. Smith does not address the functional issue of whether the applicant is unable to engage in any employment for which she is reasonable suited.

70The respondent also relies on M.R. v State Farm⁹ where the adjudicator criticized an expert for using vague language that did not directly address the appropriate disability test. The respondent states that, here, Dr. Smith did not specifically conclude that the applicant had a complete inability to engage in any employment for which she is reasonably suited.

71The respondent further relies on GT v The Commonwell Insurance Group¹⁰ for the proposition that the applicant cannot solely rely on self-reports but must have expert evidence directly on point.

72In her reply, the applicant argues that the complete inability test is a legal test. The applicant’s medical practitioners; Dr. Smith, Dr. Moustgaard and Ms. Greenough each gave the opinion that the applicant was not capable of working on a full-time basis at a competitive work environment due to her injuries and symptoms. It was not their role to answer the ultimate legal questions which is before the Tribunal.

73I find that the totality of the evidence from the applicant and the medical practitioners establishes that the applicant meets the Post-IRB Test.

74The applicant has established that her job at the Residence is substantially different in nature, status and remuneration than her previous job at [the restaurant]. In addition, given the applicant’s low education together with her physical and mental health concerns, the spectrum of jobs available to her is significantly reduced.

75I do not find that the job at the Residence is an appropriate alternative to her pre-accident employment at [the restaurant]. The evidence with regard to her duties at [the restaurant] and her duties at the Residence was consistent in that one was fast paced and physical and the other sedentary and only required light duty tasks. In addition, [the restaurant] was full-time and the Residence part-time. While there was some similarity in that both positions involved food preparation, the similarities end there. The applicant’s job at [the restaurant] required food preparation from scratch, lifting heavy bags, cooking and cleanup in a commercial kitchen. At her job at the Residence, the applicant’s food preparation duties are limited to making toast or heating up prepackaged foods or simple meal preparation. Given the above, I do not find that the Residence is an appropriate alternative to [the restaurant].

76It is firmly established that the applicant now only works part-time hours. While she attends at the Residence at all hours, including the very early morning, there is no indication that she does anything but sit and chat with the residents at that time. She is not paid to be there. Indeed, for the work she is paid for, she is not especially successful: she turns off the lights when she has a headache, she has her daughter fill in for her, and she has confused which resident is supposed to get which medication. Under different management she might certainly have been let go. Instead, her employer is encouraging, accommodating and flexible. I have difficulty finding that she is suited to the part-time job she is undertaking, let alone the high paced, full-time job she previously held.

77I agree with the applicant’s submission that the Post-104 IRB Test is one that must be determined by this Tribunal. Therefore, Dr. Smith is not required, indeed is discouraged, from giving the specific opinion that the applicant suffers from a complete inability to engage in any employment for which she is reasonably suited. That is a determination that I must make based on the evidence before me.

78Further, I disagree with the respondent’s characterization that Dr. Smith’s evidence was general. He testified that the applicant has chronic pain that impedes most activities of daily living. He stated that her prognosis was poor and that she was barely coping now at a sedentary part time job. He was clear that she could not work in her pre-accident job as a cook. He stated that she can work and does, but that her productivity is affected by her symptoms. He added that she is unlikely to tolerate more than what she is currently doing which is a position with significant accommodations for her needs. I find this testimony provided sufficient detail, functional analysis and provided medical evidence concerning the applicant’s limited ability to work.

79I find that the applicant has established on a balance of probabilities that she meets the Post-104 IRB Test and is therefore entitled to IRB benefits.

Quantum of Benefits

80The parties had opposite views regarding any quantum of IRB benefits that may be owed.

81The applicant at first took the position that quantum of benefits was not before me. The applicant then argued that there is no caselaw or section of the Schedule that supports deeming the applicant’s income to have increased due to possible work benefits. The applicant also characterizes the free rent provided to her as a gift. The applicant relies on D.M. v Aviva¹¹ for the proposition that a gift can be characterized as financial aid. A gift requires that it be given without consideration or expectation of remuneration, that it is accepted by the done, and that there is a sufficient transfer of property.

82The respondent took the position that quantum was properly at issue before me. The respondent submits that, in terms of quantum of benefits, the correct calculation is to add the applicant’s salary at approximately $1290/month, plus her rent free living at $900 a month, plus 3 meals a day at 5 days a week at the Residence for $325/month. This is the equivalent of $31,380.00 per year which is above the applicant’s pre-accident gross income of $27,186.00 as declared by her in her 2015 tax returns.

83The respondent states that even if the Tribunal does deduct rent and food, the applicant’s maximum IRB benefit must be reduced in accordance with the part-time income earned at the Residence. As such, the respondent states that the quantum of the IRB can only be $228/week for 2017, $204/week for 2018 and $190/week for 2019 as a result of the applicant’s earned income at the Residence.

84I am required to determine both IRB entitlement and quantum of that entitlement. The issue before me, as agreed upon by the parties, includes whether the applicant is entitled “to receive a weekly income replacement benefit in the amount of $228.00 per week for the period of October 17, 2017 to date and ongoing.” In referencing $228 per week, the plain language wording of the issue specifically raises the issue of quantum of IRB payments.

85Nevertheless, the evidence at the hearing did not include any expert evidence on calculation of IRB entitlement. There were questions in cross-examination of the applicant as whether free food at the Residence or rent-free housing were appropriately being accounted for in the applicant’s reported income. However, there was no accounting evidence or any other testimony on point.

86I find that I cannot deem that the applicant’s salary to be higher than her reported hourly wage based solely on the respondent’s submissions regarding average value of meals. I have no evidentiary basis for a such a finding. I also found the evidence before me inconclusive as to exactly how many meals and how often the applicant ate for free at the Residence. The applicant qualified her statement that she ate for free at the Residence by adding that she ate no meat there. Does that mean she brought her own meat? That she only ate meals at the Residence that contained no meat? Or that she did not consider those meals full meals because they lacked meat? There was also no evidence on the value of the meals she did eat at the Residence. I have no expert evidence or otherwise on how to calculate the value of these items or how to impute that value into her income, if at all. There was also no caselaw brought to my attention that requires me to include some value for meals eaten in the workplace in the applicant’s income calculation. Neither party drew my attention to a section of the Schedule under which I would have the authority to do such a thing. As such, I do not find that the applicant’s meals at the Residence increase her employment income such that it should reduce her IRB entitlement.

87With regard to housing, I do not consider the applicant’s free rent as an employment benefit, but instead as a gift. K.B. invited the applicant to move into an apartment near the Residence. The apartment was given to the applicant rent-free and without conditions tied to the applicant’s employment. K.B.’s relationship with the applicant pre-dates the accident. K.B. testified that she was worried about the applicant and that she offered housing to help her. K.B. has been exceedingly supportive of the applicant in a way that one might expect a family member to act. Indeed, K.B. testified that she assisted the applicant because no one else was doing it. She also stated that she did not expect anything extra from the applicant after giving her a place to live. While unusual, I found no reason to doubt K.B.’s testimony in this regard. K.B. is a person who has committed her entire working life to assisting others - she runs a home for people who need assistance with daily living and she also runs a busy psychotherapy practice. By all accounts she is also a flexible and accommodating employer. I accept that the housing given to the applicant is a gift and should not be included in the applicant’s income. No deduction should be made from the applicant’s IRB entitlement as a result of this housing situation.

88Given the above, I accept that the applicant has established on a balance of probabilities that she meets the Post-104 IRB Test and is entitled to $228 a week from August 2017 and ongoing. The respondent’s submissions are uncontested that the applicant’s IRB entitlement, based solely on her reported income from the Residence, should be reduced based on her earned income at the Residence. This amounts to $228/week for 2017, $204/week for 2018 and $190/week for 2019. Current IRB entitlement calculations should account for any change in hours or hourly pay that the applicant receives from the Residence, calculated in accordance with the Schedule.

ISSUE 2 - Is the applicant entitled to attendant care benefits in the amount of $2,711.84 per month for the period of October 17, 2018 to date and ongoing?

89In order to answer this question, I must determine whether the respondent is liable to pay for reasonable and necessary expenses provided to the applicant by an aide or attendant since October 17, 2018 to date and ongoing.¹²

90If the attendant care is provided by a non-professional, such as a family member, then the attendant care benefits are limited to the amount of economic loss sustained.¹³

91The applicant is claiming $2,711.84 per month from October 17, 2018 and ongoing.¹⁴ The applicant must satisfy the following:

a. Section 19 of the Schedule regarding her level of disability;

b. Section 20 of the Schedule regarding the duration of entitlement; and

c. Section 3(7)(e) of the Schedule regarding the definition of incurred expense by her caregiver, in this case, her daughter.

92I find that the applicant has not established that her level of disability as of October 2018 requires attendant care.

Occupational Therapy Evidence of Attendant Care Needs

93Mr. Anwar, occupational therapist, testified for the applicant. He assessed the applicant on November 30, 2016, May 1, 2017 and April 19, 2018.

94Mr. Anwar recommended attendant care. In the May 2017 report, Mr. Anwar assessed the applicant’s needs at $1117.85 per month for assistance with grooming, feeding, mobility and emotional support. In the April 2018 report, Mr. Anwar assessed the applicant’s needs at $2711.83 per month due to the applicant’s mental health deterioration and suicidal ideation. The additional funds were for supervisory needs. Mr. Anwar noted that the applicant was physically capable of her self-care needs but needed emotional, supervisory and cognitive support.

95Deanna Evans, occupational therapist, testified for the respondent. She completed an in-home assessment and Form 1 on October 11, 2018. She found that the applicant was independent with respect to personal care.

96In cross-examination, Ms. Evans agreed that she did not address emotional function and did not mention suicidal ideation. She was aware of Dr. Lee’s post-traumatic stress disorder and major depressive disorder diagnosis. She was also aware of Ms. Greenough’s reports that the applicant was suffering from suicidal ideation. Although she was aware that the applicant’s daughter had moved back in with her, Ms. Evans did not mention her in the report.

Testimony of the Applicant’s Daughter and the Applicant

97The applicant’s daughter, [A.], testified in support of the applicant. It is undisputed that [A.] was estranged from her mother at the time of the accident. They reconnected at some point in the spring of 2017. [A.] testified that it was “before her exams.”

98[A.] testified that after re-connecting with her mother, she began to see her a few times a week. At the time, she was a student living in [City 3]. In the spring of 2017, she dropped from five classes down to two classes. As a result of no longer being a full-time student, she also lost her administrative job at the [university]. [A.] eventually moved in with her mother in October or November 2017. She lives now with her mother in the rent-free apartment in [City 2].

99[A.] testified that she provides attendant care services to her mother. She assists in cooking, cleaning, looking after the small dogs, and emotional support. [A.] testified that she did not return to her studies due to the care she needed to provide to her mother.

100[A.] testified that she lost income from the loss of her administrative job. In 2016, her income from that position was $9,927.54. She estimated that her economic loss from the loss of the administrative position was $827.30 per month from May 2017 to September 2018.

101The applicant testified that she was able to care for herself while living on her own and continues to take care of herself. She stated that her daughter does assist her. The applicant also uses her phone to remind herself to take medication. She stated that she knows what to do in an emergency and is able to care for herself in such a situation.

102The applicant testified that her daughter lives with her and assists with chores and the dogs. She also stated that [A.] spends a lot of time “doing her own thing.”

103The applicant also testified that she spends long hours at the Residence where she helps prepare some light meals for the residents, does dishes, runs errands, answers the phone to arrange for appointments for the residents and hands out medication.

Analysis

104Mr. Anwar’s report stated that the applicant needed assistance with grooming, medication preparation, feeding, transportation, hygiene, comfort and safety and support due to cognitive functions. While Mr. Anwar’s report may have been accurate at the time that it was written, the applicant’s self-reporting to other medical practitioners and her testimony at the hearing contradicted the report.

105The applicant’s need for attendant care was contradicted by the following key reports all of which pre-date the 2018 period for which attendant care is requested. The following reports found the applicant to be independent with regard to self-care:

a. Dr. Goodfield, psychologist, dated March 7, 2017

b. Dr. Clarke, anesthesiologist and chronic pain specialist, report dated March 7, 2017

c. Dr. Perera, physiatrist, report dated October 16, 2017

d. Deanna Evans, O.T., report dated October 11, 2018

106Ms. Evans testified that the applicant was independent in personal needs. While Ms. Evans did not address mental health needs in her report, I prefer her evidence as it is supported by the applicant’s own testimony that she needed no assistance with grooming and hygiene and was able to care for herself.

107The applicant testified that her own duties at the Residence include making sure the residents have their medication, preparing light meals for the residents, and arranging transportation for appointments. It does not make sense that the applicant would require attendant care assistance for these tasks for herself while being capable of providing this same assistance to others at her place of employment.

108Finally, the applicant has struggled with depression and suicidal ideation. This is truly unfortunate. However, Ms. Greenough, her psychotherapist, states in her report of September 26, 2018, that the applicant denies suicidal thoughts or plans. The applicant herself has sought out comfort by speaking with the residents at her work. She has her daughter for company at home. She stated that she knows what to do in an emergency. While the applicant’s mental health is a concern, and a serious one, she has developed coping strategies and has the skills to handle this issue. The evidence does not support the need for attendant care as a result of the applicant’s mental health concerns.

109For the reasons stated above, I find that the applicant’s level of disability does not entitle her to attendant care benefits from October 17, 2018 to date and ongoing. As a result, I do not need to determine the duration of her entitlement and whether the attendant care needs were incurred.

ISSUES 3 & 4 - Is the applicant entitled to $968.84 for assisted devices and $4,435.48 for in-home occupation therapy sessions?

110In his report dated May 28, 2018, Mr. Anwar recommended $968.84 for assistive devices to help the applicant with balance and dizziness issues. While this report may have been accurate at the time that it was written, the assisted devices were no longer needed by August 2018 when the applicant moved to a main level apartment in [City 2]. In particular, the mobility assistance devices due to problems at her previous residence with stairs and shower were no longer necessary.

111In addition, the applicant testified at the hearing that she already had the remainder of the requested devices. The applicant testified that she had no need for the assistive devices as she already had a handheld shower, heat pad, long handled bath sponge and that she does not need a shoehorn or clamp-on rail anymore. As a result, the applicant is not entitled to these assisted devices.

112Mr. Anwar stated that the applicant required assistance with her phobia of driving. The applicant’s evidence was that she had previously driven herself back and forth to the Residence, something she no longer needed to do after her move to [City 2]. Further, the applicant now drives residents on occasion to assist them with errands. While the applicant may have lingering fears after having been in a traumatic accident, she appears to have overcome these needs, and based on her testimony, no longer requires assistance with this matter.

113With regard to the occupational therapy sessions, in his April 19, 2018 report, Mr. Anwar recommended eight 1.5 hour in-home sessions to improve the applicant’s coping skills, and to assess cognitive symptoms. Dr. Moustgaard also recommended occupational therapy to the extent that the applicant’s mental health impacts her motivation. As a result, the respondent approved four 1.5 hour occupational therapy sessions to review pacing, body ergonomics, environmental accommodations and energy conservation, provider travel time and documentation support activity to support the reduced number of sessions.

114The respondent submits that the above plan was partially approved at least a year prior to the hearing. However, the applicant did not take advantage of the partial approval to have some occupational therapy sessions.

115Given that the applicant has a partial approval and has not made use of this partial approval, I find that further sessions are not reasonable or necessary. Therefore, the applicant is not entitled to the remainder of the occupational therapy sessions.

116For the reasons stated above, I find that the applicant is not entitled to the benefits as set out in issues 3 and 4, namely assistive devices and further occupational therapy sessions.

ISSUE V: Is the applicant entitled to interest on any overdue payment of benefits?

117The applicant is entitled to interest on overdue payment of benefits. The applicant has been successful in establishing her entitlement to IRBs according to the Pre-104 IRB Test and the Post-104 IRB Test and is entitled to the interest on those overdue payment of benefits in accordance with s. 51 of the Schedule.

ISSUE VI: Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

118In order to obtain an award, the applicant must show that the respondent unreasonably withheld or delayed payment of a benefit.

119The applicant’s case contained a complex and unusual set of facts, including that the applicant’s previous job was no longer available and that the applicant had found flexible employment with an unusually accommodating new employer. The respondent did not appear to blatantly ignore evidence. The evidence in this case raised legitimate questions about applicant’s entitlement to IRBs, attendant care entitlement and entitlement to further treatment. The respondent is not liable if they are wrong, only if they unreasonably withheld payment. Legitimate disagreement between the parties does not mean the respondent acted unreasonably.

120Given the above, I see no reason to award an award in this case.

ORDER

121The applicant is entitled to receive a weekly income replacement benefit for the period of October 17, 2017 to date. The quantum of the IRBs is to be reduced by the amount of the applicant’s earned income at the Residence in accordance with the Schedule. The applicant is also entitled to applicable overdue interest.

122The applicant is not entitled to attendant care benefits in the amount of $2,711.84 per month for the period of October 17, 2018 to date and ongoing.

123The applicant is not entitled to receive a medical benefit in the amount of $968.84 for occupational therapy, recommended by Functional Rehabilitation in a treatment plan submitted on June 12, 2018, and denied by the respondent on October 17, 2018.

124The applicant is not entitled to receive a medical benefit in the amount of $4,435.48 for occupational therapy, recommended by Functional Rehabilitation in a treatment plan submitted on April 27, 2018, and denied by the respondent on October 17. 2018.

Footnotes

1. 1Section 5(1) of the Schedule.
2. 2Sections 6(1) and (2) of the Schedule.
3. 3This increases the applicant post-accident income to $375 per week resulting in a deduction of $262.50 per week from her IRB claim.
4. 416-000682 v Northbridge Personal Insurance Corporation, 2017 CanLII 12608 (ON LAT) at para 21.
5. 5See Doxtater and Aviva Canada Inc., Re, 2018 CarswellOnt 20326 (FSCO (Appeal Decision)) at para 19, 20, 36, 40.
6. 6See Burtch v Aviva Insurance Company of Canada, 2007 CanLII 23332 (ON SC) at para 65.
7. 717-007345/AABS v Certas Home and Auto Insurance Company, 2019 CanLII 34591 (ON LAT) at para 22-23 and 25.
8. 817-007345/AABS at para 22-23 and 25.
9. 916-003757 v State Farm Mutual Automobile Insurance Company, 2017 CanLII 76930 (ON LAT) at paras 20 and 26.
10. 1017-004072 v The Commonwealth Mutual Insurance Group, 2019 CanLII 18337 (ON LAT) at para 24.
11. 11D.M. v Aviva Insurance Canada, 2018 CanLII 141002 (ON LAT)
12. 12Section 19 of the Schedule.
13. 13Subsection 19(3)(4) of the Schedule.
14. 14The applicant purchased optional benefits and therefore the provisions of s. 18(2) of the Schedule, that limits attendant care benefits to 2 years unless catastrophically impaired, do not apply.