Yeo v. Scottish & York, 2021 CanLII 117449

Citation: Yeo v. Scottish & York, 2021 CanLII 117449

Released Date: 11/16/2021

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:

Chung-Hee Yeo

Applicant

and

Scottish & York

Respondent

DECISION AND ORDER

ADJUDICATOR:

Claudette Leslie

APPEARANCES:

For the Applicant:

Julia Zhiyuan Hou, counsel for Chung-Hee Yeo, Applicant

For the Respondent:

Jessica Bacopulos, counsel for Scottish & York,

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on September 10, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant was denied certain benefits by the respondent insurer, Scottish & York. The applciant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on October 9, 2020, and consequently the matter proceeded to a written hearing.

ISSUES

3In her hearing submissions, the applicant withdraws her claim for an award under Regulation 664. The following are the remaining issues to be decided:

(i) Is the applicant entitled to an income replacement benefit (“IRB”) of $172.17 per week from May 13, 2019 to September 10, 2020?

(ii) Is the applicant entitled to interest on any overdue payment of the benefit?

RESULT

4Considering all of the relevant evidence provided, I find that, on a balance of probabilities,

(i) The applicant is not entitled to any amount of IRB for the period in question; and

(ii) The applicant is not entitled to any interest.

BACKGROUND

5The 73 year old applicant was driving when her vehicle was T-boned by another vehicle on the front, driver’s side. The airbags deployed and the applicant was struck in the chest. Reportedly, she sustained right shoulder injury with associated pain, as well as neck and upper and lower back pain.

6The applicant is right-handed. As such, she indicates that she uses this hand for the majority of her lifting, carrying, and reaching activities. As the owner of a convenience store since March 2018, the applicant states that she was also working in the store as a cashier from March 2018, for between 30-35 hours each week. The applicant claimed she returned to the store after the respondent discontinued payment of the IRB, on modified duties and drastically reduced work hours.

THE LAW, EVIDENCE AND ANALYSIS

Issue (i): Whether the applicant is entitled to income replacement benefits of $172.17 from May 13, 2019 to September 10, 2020 (16 months).

THE LAW

7Section 5 of the Schedule lays out a two-part test to determine eligibility for IRB. The second part is relevant in this case; that is:

5.2.i.,ii. – The insured person was self employed at the time of the accident, and as a result of and within 104 weeks ( the equivalent of 2 years) after the accident, suffers a substantial inability to perform the essential tasks of that employment.

8Section 6 of the Schedule provides that the IRB is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of that employment. In terms of quantum, section 4(5) stipulates that the insured person is required to report their pre-accident income to the Canada Revenue Agency (“CRA”) under the Income Tax Act, as this is the basis for quantifying income replacement benefits.

9To determine whether the applicant is entitled to IRB for all or part of the period of May 13, 2019 (the date payments ceased) to September 10, 2020, I must first consider: what are the essential tasks of the applicant’s employment; and secondly whether as a result of accident-related impairments, she is substantially unable to perform those essential tasks.

ANALYSIS

10The applicant received IRB payments up to May 13, 2019 (an 8 month period), when the respondent stopped the payments. In this case the applicant claimed that she was unable to perform the essential tasks of her work, due to accident related impairments; and she maintained that the IRB payments should continue up to the end of the 104 week period. The applicant submitted that she returned to work on what she described as modified duties and drastically reduced work hours. She describes her modified duties as performing cash transactions only; nothing else.

11The respondent’s position is that nothing in the applicant’s submissions demonstrate that she was unable to work for the period claimed, neither do the medical assessments it commissioned. Additionally, as a secondary matter, the respondent takes issue with the quantum claimed and the process for calculation.

The applicant’s position

What are the essential tasks of the applicant’s self employment?

12In addition to owning the convenience store, the applicant indicated that she also worked as the cashier. The store sold mostly cigarettes, drinks, candies, and chips. The applicant highlights her essential tasks as follows:

i. As cashier, standing for long periods to perform cash transactions, scanning, bagging, and handing items to customers, performing repetitive reaching and stooping.

ii. Occasionally, her tasks involved, pushing, and pulling such as using a pricing gun to label items with the price tags, receiving shipments, stocking shelves, and completing inventory checks and when not busy, she cleaned the store, including sweeping and dusting occasionally.

13Additionally, in an April 29, 2019 Insurer Examination (“IE”), the applicant reported her essential employment tasks as:

• owner operator, included operating the cash register, pricing items, checking inventory and ordering.

14The applicant argues that she sustained, physical injuries to her neck, back and right shoulder; she had been previously diagnosed as having a full thickness supraspinatus tear and a partial subscapularis tendon tear of her right shoulder, which made it difficult when performing tasks that involved significant movement including of her arm, repetitive tasks such as lifting and reaching.

15The applicant’s post-accident, submissions indicate that she was first assessed at Sunnybrook Hospital on the day of the accident with complaints of headache, neck pain and chest tightness. The record indicates her head image was normal. Imaging of her neck noted severe degenerative disc disease at certain points as well as moderate spinal stenosis/stricture at one vertebra/point. Subsequent medical consultations include: on October 23, 2018 at the Wells Clinic where a chiropractic assessment was conducted due to neck, bilateral shoulder and mid and lower back pain.

16The records show that the applicant consulted with her family physician Dr. M Ashraf Mikhail on numerous occasions, post accident, including as follows. In an Oct. 30, 2018 consultation to review blood work, the applicant reported neck pain, severe headaches, and severe pain in the lower back due to the accident. On December 18, 2018 she consulted for digestive issues and again, she reported severe neck pain, headache, and lower back pain and that her ability to do house chores was limited. On January 29, 2019 her consultation was regarding earache/hearing; June 25, 2019 consultation was due to complaints of right shoulder pain, at which time the doctor requisitioned an ultrasound of her right shoulder. An August 14, 2019 review of the ultrasound results indicate, ‘”humeral head is well seated within the glenoid fossa…cortical irregularity…suggestive of rotator cuff tendinopathy and mild degenerative change …at the glenohumeral articulation. There is moderate AC degenerative change noted…report found focal full thickness tear and partial subscapularis tendon tear…”. At a November. 11, 2019 consultation a review of an MRI was conducted, and interpretation of an ultrasound of her right shoulder, regarding pain in her right shoulder and left knee.

17On February 28, 2019 a cardio study of the applicant was conducted by Dr. Maur. The doctor noted that the patient complained of shoulder pain and frequent headaches. The applicant submitted that I should place little weight on the diagnosis of the two IEs arranged by the respondent. In particular, Dr. Jose Guerra’s April 29, 2019 denial that, as the owner of the store, the applicant was unable to conduct her role, when the applicant had not detailed what those tasks were, during the assessment. Secondly, according to the applicant, the IE conducted by Dr. Oleg Safir on March 2, 2020 was incomplete, as the doctor failed to recognize the ultrasound results including tears. Other than advising that the applicant avoid overhead activities with her right upper extremities, according to applicant, the doctor failed to consider the impact of her right shoulder pain on her overhead, lifting and carrying activities.

The respondent’s position

18The respondent argued that there is no evidence indicating that the applicant was unable to work during the period claimed, due to accident-related impairments; nor did she produce required, income tax assessments to support the quantum claimed. The respondent acknowledges, and the applicant did not deny, that she had pre-accident of tears and tendon retraction in the right shoulder, as per Clinical Notes and Records (“CNR”) of December 23, 2016. Although she was seen at Sunnybrook Hospital the day of the accident, the respondent pointed out that she reported no complaints with respect to her right shoulder; nor did she when she consulted with her family physician two months post accident in October of 2018. The respondent found it questionable that the first instance/report of shoulder pain by the applicant, was to her family physician on June 25, 2019, almost a year after the accident; and after filing this application with the Tribunal on May 21, 2020.

19According to the respondent there is no evidence that the Motor Vehicle Accident (“MVA”) impairments affected her performance: the CNRs/documents submitted by the applicant make no comment on her ability to work; and there is no disability certification that she met the test for pre- or post-104 week eligibility. While unclear to me whether the respondent has concerns about causation, it nonetheless pointed out that there is also no evidence that the shoulder pain experienced by the applicant was a result of the accident; or that it caused issues with lifting reaching or carrying or limited range of motion; and the full thickness and partial thickness tears, 2016 MRI diagnosis, pre-dates the accident by approximately 2 years. The respondent also pointed out that the March 13, 2019 Wells Clinic records provided by the applicant reflect no right shoulder diagnosis or concerns.

20The respondent further argued that its IE assessors’ findings below, support its position that the applicant’s MVA impairments did not impact her capability to perform her self employment tasks; and therefore, no further IRB payments are warranted:

i) in the orthopaedic IE conducted by Dr. Jose Guerra on April 29, 2019, the applicant demonstrated “good abduction power -right shoulder; left shoulder 180 degrees… forward flexion and abduction, touch back of head and reach the lumbosacral areas…”;

ii) In his April 29, 2019, report, Psychologist, Dr. Shahriar Moshiri found no psychological impairments. He notes that the applicant reported that she was able to perform household chores and she reported her essential employment tasks as: owner operator, included operating the cash register, pricing items, checking inventory and ordering; and

iii) Orthopaedic Surgeon, Dr. Oleg Safir report dated March 17, 2020, diagnosis is that the applicant’s injuries included “bilateral shoulder contusion on the background of previous pain”; and the doctor found no evidence of significant musculoskeletal impairment as a result of the MVA.

Is the applicant substantially unable to perform the essential tasks of her self employment as owner and cashier of the convenience store?

21The applicant’s submissions on her ability to perform the essential tasks of her relates to her physical, rather than psychological condition. What is her physical condition? Considering the evidence in totality, I find her physical condition is as follows:

(i) With regards to her hands, the evidence indicates that both of her hands were functional. Pre-accident she had undergone carpal tunnel syndrome operation of the left hand, and in a July 2018 follow up, she reported no consequential complaints; prior to that in a June of 2018 medical consultation, she self-reported, no complaints of anything regarding her right hand.

(ii) Despite the evidence that the applicant’s first complaint of shoulder pain was almost a year post-accident during a cardio study on February 28, 2019, various medical self reporting, medical imaging/diagnoses lead me to believe that the applicant likely experienced physical pain, to some extent, in her neck, back and right shoulder. In part, I make this finding on the basis of the following evidence: the ultrasound results of 2016 indicating degenerative changes and tears in in her right shoulder region; the August 14, 2019 ultrasound of her right shoulder revealing among other things, irregularities, and suggestions of possible of rotator cuff tendinopathy and mild degenerative changes; the fact that the October 23, 2018 Wells Clinic chiropractic assessment was conducted due to neck, bilateral shoulder and mid and lower back pain complaints; and the November 11, 2019 review of the MRI and Ultrasound indicates, they were conducted due to pain in the applicant’s right shoulder and left knee.

(iii) At the same time, the applicant demonstrated, reasonable right/left shoulder reaching, flexion and power demonstration at the orthopaedic IE on April 29, 2019; and while Orthopaedic Surgeon, Dr. Oleg Safir IE diagnosis reported March 17, 2020, found “bilateral shoulder contusion on the background of previous pain”, the doctor found no evidence of significant musculoskeletal impairment as a result of the MVA.

22While the applicant complained to medical providers of pain including in her right shoulder, she provided no medical evidence, disability certification or diagnosis specifically indicating the severity of the pain, or that it prevented her from performing the tasks of her employment. There is, however, evidence that supports the applicant’s claim that she had right shoulder injury/discomfort, pre- and post accident, and which, it appears, was due to various factors, including natural degeneration. I must therefore answer the question of whether this right shoulder injury substantially prevented her from performing the essential tasks of her self-employment (italics for emphasis only). After careful consideration of the relevant evidence provided, I am not convinced that, on a balance of probabilities, she was unable to do so. My reasons are as follows.

23The Schedule does not define the terms, a) “substantial inability” or b) “essential tasks”. Notwithstanding, I find a reasonable understanding of “substantial inability” to mean, posing a considerable amount of difficulty; and “essential tasks in the context of employment to mean the required, crucial/vital tasks of the individual’s role/position.

24Of note is the fact that, there is no requirement under the Schedule for consideration of occasional employment tasks. As such, I apply little weight to the non-essential, occasional tasks the applicant indicates she performed including at times when she was not busy.

25The best evidence available of the applicant’s essential tasks, is as she submitted - convenience store owner and cashier/cashiering which involved standing for long periods, performing cash transactions, scanning items and handing them to customers, as well as reaching and stooping; and as she reported to IE assessor, Psychologist, Dr. Shahriar Moshiri in April of 2019 - owner operator, included operating the cash register, pricing items, checking inventory and ordering.

26The injuries complained of by the applicant are primarily, physical in nature, in particular as in concerns her right shoulder/arm movement and standing. As such, the part of her essential tasks as owner/proprietor of the convenience store, in my view is primarily administrative, non-physical in nature. Therefore, I find no reason to believe that the applicant was unable to conduct the essential role of owner/operator of the store including ordering/checking inventory.

27With regards to her other essential, cashiering responsibilities, including scanning items, reaching and stooping, operating the cash register, there is no compelling evidence that would lead me to make a finding that as a result of accident-related impairments she was incapacitated and unable to conduct these activities. The applicant provides no indication as to what percentage of her day or how often during the day she had to conduct the activities involved in serving her customers. As well, there is no indication of the level of difficulty, if any involved in doing these things. On the contrary, the applicant’s demonstrated, reasonable right/left shoulder reaching, flexion and power demonstration at the orthopaedic IE on April 29, 2019, lead me to believe her right shoulder/arm injury was not of a severe nature.

28In my view, it is unlikely that, in a store which sold mostly cigarettes, drinks, candies and chips, the applicant had to serve, long lines of customers on an ongoing basis, without breaks for the duration of the day. Even though repetitive, these tasks conducted on an intermittent basis would, in my view, have little impact on her right shoulder/arm, especially given the alternative of using her left arm, as implicit in the advice of IE assessor Safir “to avoid overhead activities with her right upper extremities.”

29Similarly, there is no evidence as to what percentage of her daily, essential cashiering duties, required standing, whether cashiering tasks could only be conducted from a standing position, or whether other options would suffice in performing her cashiering responsibilities. While the applicant gave no indication as to the weight of cigarettes, or snacks or other items sold in the store, it is not unreasonable to conclude that they are lightweight items; and that there was no aggravating, heavy lifting involved.

30All considered, the medical evidence before me does not indicate that the applicant was substantially unable to perform the essential tasks of her pre-accident employment. In fact, the applicant returned to work, post-accident. The onus of proof is on the applicant and I find that she has failed to meet it and I therefore find that she is not entitled to any IRB benefits.

31I have further considered that, even if the applicant submitted the occasional activities for consideration as part of her role as owner/operator of the store -- pushing and pulling, using a pricing gun to label the price tags of items, receiving shipments, stocking shelves, completing inventory checks, sweeping, and dusting – my finding is the same. The evidence does not lead me to find otherwise; or that these were significant, heavyweight movements that posed a high level of difficulty. Having determined that the applicant is not entitled any IRB benefit, I find it unnecessary to consider the issue of quantum or its calculation, in this case.

INTEREST

32Having found that the applicant is not eligible for IRBs, and that there is no overdue payment is due/owing, I find that the applicant is not entitled to any interest.

CONCLUSION/ORDER

33For the reasons outlined above, I order that:

i. The application/applicant’s claim for IRB and interest is dismissed

Released: November 16, 2021

__________________________

Claudette Leslie

Adjudicator