Citation: Cox v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-012281/AABS

Released Date: 02/05/2021

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:

Katherine Cox

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Katherine Cox, Applicant

Louis Crowley, Counsel

For the Respondent:

Annette Manson, Representative

Catherine Korte, Counsel

Michael Ditkofsky, Counsel

Court Reporter:

Mr. G. Riccioni

Heard by Videoconference:

January 11, 12, 13, 14 and 15, 2021

OVERVIEW

1The applicant was involved in an automobile accident on April 6, 2014 when she was the driver travelling through an intersection with her one-year child in the back seat and was t-boned on the passenger side by a vehicle running a stop sign. Her vehicle was spun and destroyed. She was air lifted to hospital, seen by the trauma team and spent four weeks in two different hospitals. She underwent several surgical treatments for her two broken legs and arm. She returned home in a wheelchair. At the time of the accident, she was 31 years old and had worked as a general manager in a restaurant for several years. She did not return to her job and claims she suffered both physical and psychological injuries, including chronic pain, that prevent her from returning to any type of work as a result of the accident.

2The respondent Wawanesa Mutual Insurance Company (“Wawanesa”) paid the applicant income replacement benefits (“IRBs”) up to early 2018¹, almost four years post-accident. It terminated the IRBs on the basis that the applicant could return to some form of suitable employment, based on the findings of various s. 44 insurer’s examination (“IE”) reports. The applicant submits that due to her limited education, lack of any other specific skills or experience, mental health impairments, including chronic pain, and significant physical restrictions from the accident, she cannot return to any job duties.

3As a result, she appealed Wawanesa’s decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), seeking entitlement to the IRBs pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').² She also requested an award and interest. The matter proceeded to a video conference hearing after completion of a case conference.

Procedural Issue

Request by the applicant to exclude surveillance

4At the start of the hearing the applicant requested that the respondent’s surveillance report and social media searches³ be excluded as they were served late. Applicant’s counsel submitted that, as a result, the applicant has been prejudiced as her experts were not allowed the time to review this information and prepare for the hearing. In the Tribunal Order dated June 1, 2020, the parties agreed that they would exchange all documentation by September 30, 2020 (the “Order”). However, the applicant only received these materials on December 11, 2020. The respondent’s counsel attributed the 5-6-week delay to the COVID-19 pandemic, which had resulted in the suspension of limitation periods and a minimally staffed office.

5After considering the parties’ submissions, I declined the applicant’s request to exclude this evidence and admitted it into evidence, subject to the submissions of both parties at the conclusion of the hearing on weight and my discretion as to its weight. The information contained in the surveillance report and social media posts appeared to be relevant to the issues in dispute. Although I was mindful that Tribunal orders should be followed, I did not see any significant prejudice to the applicant. I also offered applicant’s counsel an opportunity to ask for an adjournment to allow for additional time to review these materials, which he declined.

6In my view, this was not a situation where these documents, which were not overly extensive, were provided on the eve of hearing. The applicant still had a month to prepare and review them. The applicant’s counsel was also free to ask his witnesses questions about this information and if it changed their opinion in any way. I also indicated to the applicant’s counsel that I would allow him additional time during the hearing to allow any witness to review the surveillance, if required, and ask them questions about it on the record. In my view, this would cure any potential prejudice to the applicant and allow this multi-day hearing, which has been scheduled for some time and relates to a 2014 accident, to proceed without any further delay. On this basis, I allowed the surveillance report and social media searches to be made a part of the evidence.

ISSUES

7The disputed claims in this hearing are:

1. Is the applicant entitled to IRBs in the amount of $400 per week from October 31, 2017⁴ to date and ongoing?

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

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

RESULT

8The applicant is entitled to IRBs in the amount of $400.00 per week from February 4, 2018 to date and ongoing plus interest in accordance with s. 51 of the Schedule. The respondent is not liable to pay an award under Regulation 664.

ISSUE 1: Entitlement to IRBs 104 Weeks after the Accident

LAW

9The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule. The test for entitlement to a post-104-week IRB is set out in section 6(2)(b), which states:

The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience [emphasis added].

This is referred to as the “complete inability test” or the “post-104 test.”

10The parties agreed at the hearing that the only issue in dispute is the post-104 weeks entitlement to IRBs and that the quantum of $400.00 per week was not at issue. Their submissions focus solely on whether or not the applicant meets the complete inability test for the IRBs. It is well accepted that the onus to prove entitlement rests with the applicant.

11Therefore, to be entitled to ongoing IRBs more than 104 weeks after the accident, the applicant must satisfy the post-104 week disability test by establishing on a balance of probabilities that she suffers a “complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience” as a result of the accident. For analytical purposes, the inquiry can be divided into two main parts:

(i) causation; and

(ii) complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

ANALYSIS

12A five-day video conference hearing was conducted. The applicant and three expert witnesses testified. The respondent called three witnesses. I have considered all of the evidence led during the hearing and only summarized what I found relevant to my determination below.

Causation

13The respondent has conceded causation. For completion, even if this wasn’t the case, I find that the applicant has established causation based on the evidence.

14The evidence shows that, before the accident, the applicant was psychologically healthy, was not diagnosed with any mental illness, and did not have any physical injuries. She worked full-time for many years in the restaurant industry as a general manager and other, similar roles.

15The medical evidence supports my finding that the applicant’s impairments were caused by the accident. It includes the Disability Certificate, dated April 10, 2014, four days after the accident, completed by Dr. M.D. MacLeod, physician, that concluded the applicant suffered a complete inability to carry on a normal life, is substantially unable to perform the essential tasks of her employment and cannot return to work on modified hours because “she was non weight bearing three limbs, right & left lower extremities and right upper extremity.”⁵

16Dr. MacLeod, who was the applicant’s treating orthopaedic surgeon since the accident, completed three other Disability Certificates dated March 23, 2017, April 11, 2017 and August 2, 2017,⁶ noting her injuries as a result of the accident, including a broken left foot/ankle that required surgery, a broken right foot/ankle/leg that required two surgeries, a rod in her right leg and fusion, a broken right arm that required two surgeries, a rod/plate in her right arm, nerve damage to her right hand/arm, constant joint pain in her right arm, headaches/migraines, swelling and pain daily in her right foot and ankle, major scarring, occasional pain and swelling in her left ankle, and cramping and major pain in her right calf and heel/ankle.

17In the Disability Certificate dated April 11, 2017, under Part 6 – Disability Tests and Information, one of the questions is: “If you responded ‘Yes’ to any disability test above, what is the anticipated duration?”, to which Dr. MacLeod replied: “Permanent because of the nature of the injuries.”

18A very detailed summary comprising eight sets of illustrations and photographs of the applicant’s extensive injuries, including remaining scars, and the dates of the surgeries, was provided as part of the applicant’s brief.⁷ Medical Imaging Results and Radiology and CT Consultation Reports from the date of the accident to July 2020 were provided, confirming the injuries and the internal fixation of the tibial fracture and subtalar fusion that were performed. The last entry of July 21, 2020 notes: “The fusion appears solid. No hardware complication is identified.”⁸ However, the evidence also demonstrated that further surgeries may be scheduled, including a hardware removal and an ankle replacement.

19The two psychological reports of Dr. L. Lee, psychologist, dated February 11, 2018 and November 20, 2019, diagnosed the applicant with mental health issues including Major Depressive Disorder with Anxious Arousal and Post-Traumatic Stress Disorder (PTSD) as a result of the accident. All of these diagnoses mean that the applicant has had obvious emotional difficulty adapting to and coping with her psychological and physical symptoms, including pain, since the accident. I have no doubt that getting hit by a vehicle with her one-year-old child in the back seat and being airlifted by helicopter to a nearby hospital constituted a traumatic event for the applicant. The applicant testified that: “I realized my arm was hanging…I was screaming and was hysterical. I didn’t know if my daughter was injured…I was in and out of consciousness.” She further testified that she has mood issues, anger, guilt and extreme fatigue and has lost about 50% mobility in her right shoulder.

20Finally, the reports of the three IE assessors Dr. P. Grosso, orthopaedic surgeon, Mr. D. Brodie, Kinesiologist and Daniel Egarhos, Vocational Rehabilitation Counselor, part of a multi-disciplinary assessment, all concluded that the applicant had suffered injuries or impairments as a result of the accident. The Executive Summary of N. Power, Director of Clinic Services, dated October 27, 2017 describes the accident of April 6, 2014, that the applicant suffered multiple serious orthopaedic injuries, her treatment to date and that she has not worked since the accident.

21Therefore, based on the evidence reviewed above, I find that but for the motor vehicle accident the applicant would not be suffering from the physical and psychological impairments that cause the complaints she puts forward as the basis for her claim for the IRBs. While some of her physical injuries may have healed, there is no doubt that her psychological injuries are serious, have not resolved and may be permanent.

22I now turn to the issue of whether, as a result of the accident, her headaches, physical injuries, pain and psychological problems cause the applicant a “complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.”

Complete Inability

23Due to the psychological and physical impairments, including her ongoing pain issues, I find that the applicant meets the test for eligibility for an IRB post-104 because she suffers a complete inability to work in any employment for which she is reasonably suited by education, training or experience. Overall, I preferred the evidence of the applicant as I found it more complete, compelling and comprehensive, and gave it more weight than the respondent’s evidence. In my view, there is clear objective medical evidence supporting the applicant’s claim of a complete inability to work as defined in s.6(2)(b) of the Schedule. The respondent’s own assessor, Dr. Grosso, opined that the applicant will not be able to return to her previous occupation as a restaurant manager and will not be able to perform any occupation which requires long standing, walking long distances, crouching or squatting.

24I also found that the self-reporting by the applicant was consistent with the medical evidence.

Applicant’s Evidence

25The applicant started working full-time as a General Manager at a Kelsey’s Restaurant in London, Ontario on June 2012⁹ and was employed there at the time of the accident. She has worked in the restaurant industry in similar jobs since the early 2000s. This managerial position requires her to be on her feet throughout the restaurant and in the kitchen and bar area for approximately nine to ten hours. The specific tasks of the position include scheduling, carrying, lifting, bending, squatting, and supervision of the restaurant and wait staff. It can also include having to perform some of the tasks of the other workers including bartending and waitressing. Based on the Employer’s Confirmation Form (OCF-2), dated April 9, 2014, filled out by the applicant’s employer, her position at the restaurant involved “walking around the restaurant for 9-10 hours per shift [and] managing every aspect of the restaurant.”¹⁰

26At the hearing, the applicant testified that she oversaw the entire restaurant and helped in every area including waitressing, bartending, inventory control, and making the work schedule, and that 80% of her shift was spent on her feet in this fast-paced environment. Since the accident she has trouble walking on uneven surfaces. She also testified that she cannot go back to work because of her pain, anxiety, depression, extreme fatigue, sleep problems, including nightmares, and daily headaches. She testified that she currently takes a multitude of prescription medication for her pain and psychological issues including Pregabalin, Venlafaxine, Topiramate, Tramadol, and Tylenol 3. She explained that her problems have worsened over the last two to three years, including her limp and the stability issues with her ankle. She drives with pain and anxiety but out of necessity and not for pleasure. She has gained about 30 lbs and lost her self-confidence.

27I found the applicant’s testimony to be credible, reasonably consistent and accurate. Aside from the respondent’s reference to the surveillance showing that the applicant was not reliant on a cane or any other assistive walking devices and could walk, and questions as to whether she lost consciousness at the accident, the respondent did not raise any other credibility issues and the applicant’s testimony was largely uncontested. Regarding the use of a cane, the applicant was able to explain that she has trouble with uneven surfaces, has a limp, requires the use of a cane and in the last six months has rarely left the house without it. I note that the surveillance showing the applicant walking without a cane and driving was completed back in June 2018, which is consistent with the applicant’s explanation that she has been using the cane more recently. Therefore, I did not find the surveillance undermined the applicant’s evidence. With respect to the loss of consciousness, in cross examination, the applicant explained that she was not sure if she did or did not lose consciousness. Again, this was essentially consistent with the other medical documentation, including what she reported to Dr. D.J. Ogilvie-Harris, orthopaedic surgeon.

28In support of her claim for a post-104 IRBs, the applicant relied on the orthopaedic consultation report of Dr. Ogilvie-Harris, dated September 25, 2019, that states that she has a combination of physical and psychological problems, including chronic pain syndrome, and this is likely to be permanent because of central sensitization (when a patient is in pain for a long time, there are secondary changes in the nervous system). Dr. Ogilvie-Harris concludes that the applicant is not capable of returning to work as a restaurant manager, that it is highly improbable that she will ever be able to return to this type of job and that she is unable to engage in any occupation for which she is reasonably suited by virtue of her resume, education, training or experience. This is so because of her physical limitations in sitting and standing; poor mobility; difficulty using her right shoulder, twisting, turning, lifting, and carrying; and limitations due to her poor endurance. Dr. Ogilvie-Harris testified at the hearing in a clear and straightforward manner and explained his methodology, which attempts to treat a patient as a whole, and his report. He maintained his opinion that “it is highly unlikely that she is employable” and explained that her condition will deteriorate over time with more limitations on her mobility, that she would be unreliable as a worker in any event because of her pain, and that she has severe central sensitization as a result of trauma involving multiple limbs.

29The one deficiency in Dr. Ogilvie-Harris’s report was that he did not include a list of the documents he reviewed (even though the report states that “a complete list is enclosed”). This appeared to be an oversight and during his testimony he explained that he had the same documentation as in the independent medical evaluation (“IME”) brief, which was provided to him and he reviewed.

30Overall, I found Dr. Ogilvie-Harris’s report to be thorough and his testimony to be more persuasive because he considered the applicant’s physical injuries in conjunction with her psychological impairments in arriving at his opinion regarding her employability, and, therefore, his evidence was more consistent with the evidence submitted by the applicant. This was different from the approaches of the respondent’s experts, Dr. Grosso (who only considered the applicant’s physical impairments), Mr. Brodie (who performed a series of tests to consider her physical abilities), and Mr. Egarhos (who did a skills analysis). I noted that the applicant did not have an IE conducted by a psychologist, psychiatrist, or other similar mental health professional. In my view, although respondent’s counsel attempted to explain that the respondent was not aware of the applicant’s mental health issues for several reasons, I can only assess the evidence that has been presented at the hearing.

31The role and prominence of pain in this case made this a unique and more challenging case, as assessing an impairment related to pain is difficult and the process is not as clearly and precisely defined as with other kinds of impairment. Therefore, it is always beneficial to conduct assessments in such cases by health professionals who are knowledgeable in this area. The absence of such assessments ultimately weakened the presentation of the respondent’s case as it is clear that the applicant continues to suffer from serious psychological impairments, which are well documented and impact all aspects of her life, including her ability to function in the workplace, but were not directly considered in any of the IE assessments. Some of her psychological impairments, including chronic pain syndrome, may be permanent.

32The applicant also relies on corroborating evidence from other medical practitioners. The two psychological reports of Dr. L. Lee, dated February 11, 2018 and November 20, 2019, conclude that the applicant is not capable of employment in either full-time or part-time capacity because of her chronic pain combined with depressive and anxious symptoms that precludes her from being able to engage in consistent work. Dr. Lee explained in her report that the applicant’s job as a general manager required prolonged standing or sitting, and multi-tasking. Dr. Lee also conducted psychological testing as part of her November 20, 2019 report to assist her in providing an up to date picture of the applicant’s pain and mood status. The applicant’s responses on these tests (ie. Pain Patient Profile, Beck Depression Inventory, PTSD Checklist for DSM-5, Penn State Worry Questionnaire) corroborated the applicant’s self-reports of pain and mood status and suggest that she has persistent worries, and feels hopeless, about her pain. Finally, Dr. Lee concludes that the applicant’s pain symptoms have become chronic and likely permanent, and her psychological impairments will continue to interfere with her ability to work.

33During her testimony, Dr. Lee further provided more current information that she saw the applicant last on January 7, 2021 and that her depression and capacity to cope have worsened as she struggles with consistency and headaches (although she recently started acknowledging her symptoms). She indicated that the applicant’s marriage and intimacy/closeness have also suffered, as the applicant recently indicated that she wished to separate from her husband.

34I found the reports, clinical notes and records (“CNRs”) and testimony of Dr. Lee to be particularly persuasive. Dr. Lee conducted two very thorough assessments that included psychological testing, a review of the applicant’s family doctor’s records and an exhaustive review of numerous other relevant records and reports. Her testimony at the hearing was essentially unchallenged. It is also important to point out that Dr. Lee has been the applicant’s treating psychologist since March 7, 2017 and has been seeing the applicant regularly (aside from the time Dr. Lee was on maternity leave), conducting about 37 individual therapy sessions¹¹ during that time, which are well documented in her CNRs. Dr. Lee even contacted the applicant’s family doctor as she was concerned about the applicant’s pain and headaches. My review of her CNRs is that they are all very detailed and corroborate the applicant’s continuous and ongoing pain complaints and psychological problems over an extended period of time. Her last entry of August 17, 2020 notes “anxiety is very high right now…had panic attack, heart racing, sweating,…worries about the girls safety…feels her anxiety is spiralling out of control...”

35Finally, the Employability Assessment of occupational therapist Josh Campbell, dated September 22, 2020, further persuades me, on a balance of probabilities, that the applicant remained unable to work 104 weeks after the accident and that her inability to do so is ongoing. Mr. Campbell concluded that, given the long-standing nature of her symptoms, the applicant is not presently capable of returning to employment in the food industry in any capacity. With respect to a possible position in retail sales, Mr. Campbell noted that the applicant does not have any education or experience in retail management. A review of the applicant’s school transcripts and work experience confirms that she did not finish a college program and has never worked in a retail sales environment.

Respondent’s Evidence

36The respondent’s denial of the applicant’s entitlement to the IRBs was based on an Orthopaedic Assessment (dated July 26, 2017), a Functional Abilities Assessment (“FAE”) (dated July 19, 2017) and a Transferrable Skills Analysis (“TSA”) (dated June 12, 2020), which were part of a multi-disciplinary assessment. For the reasons I discuss below, the TSA was not completed until 2020, after the Multidisciplinary IE Executive Summary was already issued, on October 27, 2017, and the benefit denied. I also note that the denial was not based on a psychiatric IE assessment, although the TSA identified a number of cognitive symptoms, including lack of focus/concentration and poor short-term memory, and that the applicant experiences constant pain. In the end, I find that the respondent’s multi-disciplinary assessment was greatly undermined by the fact that it did not investigate the severity of the applicant’s psychological problems, including her chronic pain syndrome.

37Dr. P. Grosso conducted an Orthopaedic Evaluation on October 11, 2017¹² and stated that the applicant “suffered multiple serious orthopaedic injuries” [my emphasis]. Dr. Grosso opined that the applicant will not be able to return to her previous occupation as a restaurant manager and will not be able to perform any occupation that requires prolonged standing, walking long distances, crouching or squatting. However, Dr. Grosso also concluded that she does not suffer a complete inability to work in any employment for which she is reasonably suited by education, training or experience. The reason for this is that Dr. Grosso found that the applicant could potentially perform a sedentary occupation (although he could not say what this could be, as this was not his area of expertise, and recommended a vocational assessment).

38In cross examination, when asked about the “complete inability test” (question #1 of the referral questions in his report), Dr. Grosso acknowledged that he found this question challenging and explained that he simply focussed on the words “any employment” to find that it is possible she may be able to do something else. I find Dr. Grosso’s focus on the words “any employment” spread too wide a net as to what could be “any” employment, without the proper context of the applicant’s education, training or experience, and that he applied almost an inappropriate or too a low a standard in coming to his conclusion given that it lacked the context of the applicant’s education, training or experience. In my view, when looking at “any employment”, the occupation still has to be one for which a person is reasonably suited by education, training or experience.

39Dr. Grosso further conceded that the applicant is not able to work as a waitress or bartender as these jobs involve prolonged standing or walking. He also stated that he could not recall if the applicant had any psychological issues, or if this was ever discussed, and that he was not qualified to assess chronic pain or central sensitization. The overwhelming evidence is that the applicant has psychological issues and chronic pain, and this influences every aspect of her life. Without being critical, Dr. Grosso was not aware of this and did not have the benefit of a psychological assessment, or other related medical evidence in this respect. For this reason, I also gave his report and evidence less weight.

40A FAE report, dated July 21, 2017¹³, conducted on behalf of the respondent, was prepared by Douglas Brodie, to determine the applicant’s “current physical abilities as a result of the injuries sustained in the accident” [emphasis added] and respond to the referral questions pertaining to the IRBs.¹⁴

41The duration of this FAE was 3 hours and 45 minutes and the applicant attempted all tasks that were requested, although she was not able to complete the squatting reach test. This report concluded that the applicant demonstrated ability to sit for 30 minutes on a continuous basis, ability to maintain a weight-bearing posture for a maximum of approximately 90 minutes on a continuous basis, and that her walking speed appeared to be normal, although there were objective indications of limping, which became more pronounced as the FAE progressed.

42This report also noted that the applicant demonstrated the following dynamic lifting/carrying abilities on an occasional basis: bilateral floor to waist: 40 lbs; bilateral waist to shoulder: 25 lbs; bilateral floor to shoulder: 25 lbs; and bilateral carry: 40 lbs. The applicant terminated the dynamic test (at the maximum noted amounts) because of continued discomfort and increased fatigue. Based on the dynamic carrying tasks that she performed, Mr. Brodie concluded that her ability to perform work activities, according to the National Occupational Classification Career Handbook, can be estimated to be within the “Medium” category. Work activities within the Medium Strength Category involve handling loads (pulling, pushing, lifting) between 22 lbs. and 44 lbs.

43In his testimony, Mr. Brodie further explained that, based on his testing results, the applicant was capable of doing a medium strength job but could not say what job(s) she was capable of doing and deferred this to the appropriate expert (obviously, he also did not have a vocational assessment or TSA, as this was not done until June 2020). Despite the lack of a vocational assessment or TSA, Mr. Brodie still concluded that the applicant does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

44I did not see anything in the report testing the applicant’s endurance or work pace. In my view, this is important and should been assessed given the fast-paced nature and environment of the applicant’s past employment in a restaurant. The evidence from Dr. Lee was that she is unable to engage in consistent work because of her chronic pain, combined with depressive and anxious symptoms.

45Overall, I found Mr. Brodie’s report to be generally comprehensive as far as the physical testing but not all that helpful in terms of any analysis regarding the applicant’s functional abilities and how he arrived at his conclusion regarding the complete inability test. There was no indication in Mr. Brodie’s report that a psychological component was involved in his FAE. Indeed, as stated in the report, the purpose of the assessment was to “determine her current physical capabilities.” As a result, Mr. Brodie did not acknowledge any psychological impairments or consider the effects of her chronic pain or central sensitization, which also compromised his conclusion. In my view, a FAE should consider all of a person’s impairments to properly guide an assessor’s decision pertaining to a person’s functional status and ability or inability to return to work.

46Notably, he did not test for maximum sitting ability (even though Dr. Grosso found that the applicant could perform a sedentary occupation). He states that “all range of motion appeared to be consistent” [emphasis added] but does not comment in any detail in the report about the consequences of the range of motion percentages that he set out on the applicant’s ability or inability to function in a work environment. For example, in the report, the applicant’s right shoulder external fixation is rated at only 21% of normal and the applicant reported continued right shoulder/upper arm discomfort. However, Mr. Brodie only notes that she was still able to complete all of the tests and does not discuss in any detail her ability to function in a work environment with such a significant shoulder injury.

47Indeed, Mr. Brodie would have known that, after the accident, the applicant had shoulder surgery, during which medical hardware was installed, had to go back for a bone graft on her right arm, and had difficulty using her shoulder. At the hearing, the applicant testified that she has lost about 50% mobility in her right shoulder. Overall, I am not persuaded by Mr. Brodie’s evidence. I was also unsure how the applicant could possibly lift in any consistent way between 22 lbs. and 44 lbs. with her right shoulder problems and pain, and a right shoulder external fixation rating of only 21% of normal.

48I also questioned the reliability of this FAE as it was simply a brief snapshot in time and did not mimic an actual workday or workweek. The reality is that any workday in a full-time position in a restaurant or retail-type setting requires much more than 3 hours and 45 minutes of testing at a clinic. For example, the OCF-2 states that the applicant was required to walk around the restaurant for nine to ten hours per shift. No job site assessment was done as part of the FAE.

49Also, with respect to the FAE being only a snapshot of the someone’s functioning, an individual may be capable of performing some work but, as the week progresses and their symptoms increase and/or worsen, they may not have the physical capacity to continue. The evidence from the applicant is that on July 19, 2017 (the day of the FAE) she was having a good day (she described her pain level as 3/10, the best day she had had over the last 30 days) and that the next day she felt more pain and was exhausted. In cross examination, Mr. Brodie conceded that it was uncertain what she could do on a bad day (ie. pain levels are higher at 8/10) and that there could be delayed muscle soreness the next day. The inference is that she would do much worse.

50Finally, the FAE was conducted on July 19, 2017, which is now over two and a half years ago, for about half a day. The evidence from multiple sources was that the applicant has been getting worse both physically and emotionally since about 2017. Her ankle has been narrowing and she has early arthritis, which will likely progress. There is the possibility of surgery to fuse or replace her ankle. No follow up or more current, updated FAE, or paper review was ever conducted to assess updated information, including her psychological symptoms, and to consider the significant changes in the applicant’s condition. All of this is also relevant to the award discussed below. For all of these reasons, I put limited weight on the FAE and Mr. Brodie’s testimony.

51I must also assess what other jobs the applicant is reasonably suited for based on her training, education or experience. The highest formal education level the applicant has achieved is grade 12 (general stream), which she completed in 2001. She entered a pre-health program at Lambton College but did not complete it because of lack of interest and difficulty with the subject matter. In 2005, she enrolled in the Business Marketing program at Fanshawe College but was not able to finish because she also found it difficult and decided to take a promotion at Oscar Taylor’s restaurant. Her employment experience has only been in the restaurant industry. Although she completed several certificates such as Smart Serve, Knife Handling and Allergy Awareness, these are all restaurant/food related qualifications and relatively easy to obtain. She does not have any other degrees, diplomas or training. I find that the applicant is not formally educated for any specific job and her training and experience relates only to working in a restaurant.

52The applicant has not identified any suitable employment as her position is that she cannot work in any job because of her injuries. The respondent relies on the TSA report, dated June 12, 2020, of its IE assessor, Daniel Egarhos, who determined that the applicant could work as a: Food/Beverage Service Supervisor or Manager; Bartender; Hostess (restaurant/food service); Retail Assistant Manager/Supervisor; or Recreational Facility Assistant Manager/Supervisor.

53Overall, I do not accept that the applicant can fulfill the duties of any of these positions, in large part due to her functional limitations. I find that these occupations are also not employment for which the applicant is reasonably suited for by reason of education, training or experience. Although there were wages identified in the report on a per hour basis, the applicant was a salaried employee making $47,000 per year. Some of the wage rates were as low as $14.00 per hour, so it is difficult to determine if they are within the range of what the applicant was earning at the time of the accident.

54The evidence was that the applicant continues to experience significant physical limitations with respect to prolonged sitting, standing or walking; repetitive right upper extremity use, lifting, carrying, pushing or pulling, twisting, crouching, kneeling, stair climbing; and overall endurance/stamina. Moreover, because of her chronic pain combined with depressive and anxious symptoms, she is unable to engage in consistent work. Her fatigue, mood and concentration problems pose a barrier to her resuming any work duties. As well, she has no formal education or experience to perform such jobs as hostess or retail manager/supervisor. She never completed her college courses and would require some form of retraining. A sedentary occupation, recommended by Dr. Grosso, still requires concentration, endurance, tolerance and consistency.

55It is also important to note that Mr. Egarhos stated in his report that the proposed vocational options might be contingent on the applicant receiving medical clearance to return to work. Because the applicant has not engaged in any job for the last seven years, she is physically de-conditioned. I was not referred to any medical evidence that expressly cleared her for any of these positions. Finally, Mr. Egarhos testified that he did not ask the applicant about her psychological issues or receive any documentation as part of his review that addressed the applicant’s emotional or psychological state, including any records from Dr. Lee, the applicant’s treating psychologist.

56Finally, I find it noteworthy that the respondent paid IRBs for several years post-accident, including post-104 weeks. In my view, this is an indication that the respondent believed that the applicant was suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Related to this is the question of what really has changed since the respondent stopped the payments in early 2018. Her personality has changed but the fact of the matter is that the applicant’s health has deteriorated. There was very little evidence that she has in fact improved or turned a corner. No physician stated that she has reached maximum medical improvement or recovery. While some of her physical injuries have healed well, now, almost seven years post-accident, she continues to experience multiple sources of chronic pain that interfere with her ability to work. I also have no doubt that the applicant enjoyed her work as a restaurant manager and derived a great deal of satisfaction from it, including the interpersonal opportunities and growth that the work presented. Now she is clearly, and unfortunately, unable to engage in that role and this creates another level of stress for her.

57Therefore, I find that the applicant suffered both physical and psychological impairments as a result of the accident, has provided persuasive evidence, and meets the post-104 test for IRB eligibility. The clear, unequivocal conclusions from the applicant’s qualified experts relating directly to the IRB criteria, combined with the applicant’s own credible testimony, were preferred over the insurer’s medical evidence, which was compromised because no assessor considered the applicant’s psychological impairments and chronic pain and how these conditions impacted her life, including her ability to engage in any employment for which she is reasonably suited by her education, training or experience.

Time Period in Dispute

58The Order, dated June 1, 2020, stated that the applicant was requesting $400 per week from October 31, 2017.¹⁵ In direct examination the applicant appeared to suggest that her IRBs stopped in October 2017. The respondent’s counsel said that the stoppage date was February 4, 2018. I note that the Application form (page 4) states that the period in dispute commenced on October 31, 2017 (the same date as in the Order). However, page 2 of Schedule “A” to the same Application states that “Under cover letter dated January 19, 2018, the Insurer discontinued the Claimant’s income replacement benefits beyond February 4, 2018…”¹⁶ I asked the parties at the hearing if they could clarify or agree on the stoppage date as it appeared to me that this should not be contentious.

59In final submissions the applicant referred to a date in either late 2017 or early 2018. The respondent’s position was that the stoppage date was February 4, 2018. The respondent’s denial letter from A. Manson, Adjuster, regarding the IRBs, dated October 21, 2017, says that the insurer will continue to pay the IRBs “for 12 weeks pending the results of a vocational assessment.”¹⁷ This seems to coincide with the February 4, 2018 date that respondent’s counsel referred to. In any event, as the parties were not able to agree to a stoppage date, I find, based on the evidence, that the stoppage date was February 4, 2018, which is the date in the January 19, 2018 letter from the respondent to the applicant. This date was also confirmed in Schedule “A” of the applicant’s own application (page 2).

60In final submissions, the respondent’s counsel raised another related issue related to the applicant’s refusal to attend the vocational assessment (which turned out to be a transferrable skills analysis). I understood that the respondent’s counsel was requesting that if an IRB was ordered, it should not be payable until June 12, 2020, when the applicant attended the TSA. I was not provided with any authority or case law to consider, fixing a date for payment of a benefit owing until the completion of an IE. As well, there may have been good reason why the applicant felt she should not attend another IE and it may not have been “reasonably necessary.” In any event, the IRBs are payable from the stoppage date of February 4, 2018.

ISSUE 2: Award

61Section 10 of O. Reg. 664 provides the Tribunal authority to issue an “award” up to 50% of the amount to which an applicant is entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at a rate of 2% per month compounded monthly, if the Tribunal finds an insurer “has unreasonably withheld or delayed payments.”

62Although I have found that the respondent was wrong in its denial of the IRBs, that does not automatically entitle the applicant to an award. An insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The conduct of the insurer must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”¹⁸

63The applicant’s counsel submitted that the critical period to consider is June 2020 onwards because at that point the respondent had the TSA, and was certainly in a position to re-assess the applicant’s claim for IRBs and did not have to put the applicant through a hearing.

64The respondent submits that it paid the applicant IRBs and only terminated the benefit after conducting IEs. Moreover, the respondent highlights that the applicant attended two IEs but refused to attend the third, vocational component of the multidisciplinary assessment and only agreed to attend this assessment at the case conference held on May 28, 2020, pursuant to the terms of an Order (after the multidisciplinary executive summary report was issued and IRBs denied).¹⁹

65In support, the respondent’s counsel references correspondence between the parties dated July 18, 2017, August 29, 2017, September 25, 2017, September 27, 2017, November 17, 2017, December 8, 2017, January 8, 2018, and January 19, 2018, evidencing that the applicant was refusing to attend the vocational assessment due to her injuries.²⁰In her testimony, the applicant explained that she eventually went to the assessment in June 2020 because she did not want the hearing to be delayed and explained that she did not go initially, in 2017, because she felt that the insurer had already made a determination that she was not entitled to the IRBs.

66Further, the applicant’s counsel in the August 29, 2017 letter requested copies of two IEs (orthopaedic and FAE) that were completed, when all of the assessments were not finished. Undoubtedly, this presented a challenge for the respondent as, in the normal course of a file, all three IEs would have to be completed for an executive summary to be finalized. This was communicated to the applicant’s counsel in the letter, dated September 27, 2017, from A. Manson, explaining that she would have to see if the assessors could come to a joint opinion without the vocational assessment being completed. Subsequently, it appears that the respondent did not wait and denied the IRBs on October 31, 2017 without the third IE being completed. In turn, the Multidisciplinary Executive Summary, dated October 27, 2017, only relied on Mr. Brodie’s FAE and Dr. Grosso’s orthopaedic report.

67In any event, as I understand it, the respondent’s position is that the applicant’s refusal to attend the final IE was in non-compliance with the Schedule and seriously compromised their position (as well as the applicant’s) because Mr. Brodie and Dr. Grosso completed their assessments without the benefit of the vocational assessment and it was the applicant’s own action that created further delay in completing the required IEs and, essentially, the adjudication of this matter.

68Under s. 44 of the Schedule, an insurer may require IEs by the health professionals of its choice, but this right is limited to those examinations that are “reasonably necessary.” The Tribunal has applied guiding criteria in assessing the reasonableness of a proposed IE but I am not being asked to assess if this IE was reasonably necessary.²¹ For that reason I cannot make any finding of non-compliance with the Schedule or provide any relief related to the scheduling difficulty regarding the third IE.

69Normally, once an application is filed with the Tribunal and if a claimant has not attended an IE, an insurer may request a preliminary hearing requesting that the claimant be barred from proceeding with her application to the Tribunal, pursuant to s. 55 of the Schedule, for non-compliance with s. 44. However, this issue regarding the non-attendance was resolved at the case conference in May 2020 and the applicant eventually attended the third IE shortly thereafter in June 2020.

70Returning to the award, the respondent had significant difficulty scheduling the IE and made numerous efforts in attempting to adjust the file. However, in my view, the insurer was free not to finalize the executive summary pending completion of the third IE but, to their credit, they chose to cooperate with the applicant and release the two IEs that were completed as soon as they could. They have also paid all the benefits up to the non-catastrophic limits on the policy and the applicant has not applied for a catastrophic determination, which would potentially open up additional benefits. So, all of this certainly points to an insurer who has acted reasonably. It also points to the applicant, by her own actions in refusing to the attend the IE, delaying and unduly complicating the matter.

71However, the main underlying issue regarding the award is whether the respondent ignored, or failed to recognize, the severity of the applicant’s psychological impairments in the adjusting of the claim and, on this basis, unreasonably refused to pay the IRBs to the applicant in these circumstances.

72The respondent submits that they acted reasonably throughout, did not schedule any unnecessary assessments to inconvenience the applicant, and relied on their IEs. In submissions, the respondent’s counsel referred me to several Tribunal decisions for the proposition that case law has established that an award should be granted only where there was unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.²² Moreover, in this case, the respondent’s decision to withhold payment of benefits was based on its s.44 examinations, which they are permitted to do.²³

73I find that there is no behaviour that rises to the level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” conduct warranting a s. 10 award in this case for the following reasons:

(i) The respondent based its denial on three IEs as part of a multi-disciplinary assessment that found that the applicant does not suffer a complete inability to work in any employment for which she is reasonably suited by education, training or experience. As stated, an insurer can make the wrong conclusion without having acted unreasonably. I find that the respondent’s denial of the IRBs was based on properly scheduled assessments by qualified health professionals who opined on the correct question that was posed to them and which they addressed (ie. the complete inability test). This was not a situation where the respondent simply ignored the comments or conclusions of its own assessors or addressed a different issue. It would certainly be different if the respondent ignored any psychological diagnoses from their own assessors, but this was not the case. Moreover, the respondent’s first IE assessor only became aware of any psychological problems in June 2020 after the TSA was completed, and the hearing date was already set.

(ii) Related to this, it appears that no treatment plans for any psychological treatment was ever submitted by the applicant to her insurer, despite the long-standing relationship that the applicant had with Dr. Lee. Again, none of the respondent’s own assessors diagnosed the applicant with psychological impairments.

(iii) There is evidence that the respondent acted properly in trying to schedule the third IE and pre-releasing the two IEs that were completed as requested by the applicant’s counsel, even though their preference was to complete the vocational assessment as well.

(iv) There was clear miscommunication between the parties, including their counsel, as far as the exchange of medical information related to the applicant’s psychological impairments. This appeared to me to be inadvertent as opposed to intentional or anything amounting to bad faith. Submissions are not evidence and I did not have enough information to make any finding as to when certain information was sent and received and what weight to put on it.

(v) Further, although not strictly required, it does not appear that the applicant even requested the respondent’s adjuster’s log notes or called any adjuster to testify in order to prove that there was any internal bad faith decision-making regarding the IRBs or that the respondent failed in its ongoing adjustment of the claim by not recognizing that the applicant suffered psychological impairments

(vi) I accept that the respondent’s assessors were not made aware of the applicant’s psychological condition as they were never provided with the relevant information. I also note that s. 44(9)(2) of the Schedule allows either party to “provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition.” In short, the applicant was also free to furnish any medical information, including the applicant’s psychological records, to any of the assessors once the IE was scheduled, and it appears she did not do so.

74Based on the record before me, I find there is no behaviour described in the submissions or any of the evidence that rises to the level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” conduct warranting a s. 10 award.

ISSUE 3: Interest

75Pursuant to s. 51 of the Schedule, an insurer is required to pay interest on any overdue payments of a benefit.

76I find that the applicant is entitled to be paid interest on overdue IRB payments owed to her by the respondent at the prescribed rate.

ORDER

77The applicant is entitled to an IRB in the amount of $400.00 per week from February 4, 2018.

78The applicant is not entitled to an award.

79Interest is payable on any overdue benefits in accordance with s. 51 of the Schedule.

Footnotes

1. 1Applicant’s Miscellaneous IRB Correspondence being letter dated January 19, 2018 at tab 9 and letter dated October 31, 2017 at tab 5.
2. 2Ontario Regulation 34/10.
3. 3Respondent’s Document Brief XXII at tabs 1 and 2.
4. 4The respondent’s position is that the stoppage date was February 4, 2018 and that the IRBs were paid up to that time. This issue is further discussed in paras. 58-60 where I find that the stoppage date was February 4, 2018 and that the IRBs are payable from this date and not October 31, 2017.
5. 5Respondent’s Brief at p. 135.
6. 6Respondent’s Brief at pp. 137-153.
7. 7Applicant’s Miscellaneous Document Brief at tabs 3 and 4.
8. 8Applicant’s Medical and Experts Brief at tab R page 51.
9. 9The OCF-2 form states that the applicant started on March 1, 2010. She initially worked as a Floor Manager before being promoted to General Manger in 2012.
10. 10Applicant’s Miscellaneous Document Brief at tab 6.
11. 11CNRs Applicant’s Medical and Experts Brief at tab 3.
12. 12The report is dated October 11, 2017 but the assessment was conducted on July 26, 2017.
13. 13The assessment was completed on July 19, 2017 but the date of this report was July 21, 2017.
14. 14Respondent’s Document Brief, page 485 (page 2 of the FAE).
15. 15See para. 2 of Adjudicator Watt’s order from the case conference held on May 28, 2020 [Order].
16. 16Respondent’s Brief at p. 19.
17. 17Applicant’s Miscellaneous IRB Correspondence at tab 5.
18. 18Plowright v Wellington Insurance Company, 1993 CarswellOnt 4786, [1993] O.I.C.D. No. 62. See also: S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT); Applicant v. Aviva Insurance Canada, 2018 CanLII 39473 (ON LAT); and Applicant v. State Farm, 2017 CanLII 85692 (ON LAT).
19. 19See para. 5 of the Order that states that the applicant shall attend a vocational assessment on or before July 31, 2020.
20. 20Applicant’s Miscellaneous IRB Correspondence at tabs 1-10.
21. 21See 17-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT) at para. 19.
22. 2217-008069 v Economical Insurance Group, 2019 CanLII 43901 (ON LAT) at para. 64; Applicant v Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT) at para. 72.
23. 2316-003638 v Aviva Insurance Canada, 2018 CanLII 95565 (ON LAT) at para. 50.