Release date: 06/17/2021
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:
Ninara Bato
Applicant
and
RBC General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melody Maleki-Yazdi, Adjudicator
APPEARANCES:
For the Applicant:
Matthew Reid, Counsel
For the Respondent:
Kristofer B. Angle, Counsel
Court Reporter:
Amy Armstrong
HEARD by videoconference:
March 10 and 11, 2021
OVERVIEW
1N.B. (“the applicant”) was injured in an automobile accident (“the accident”) on June 24, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when his claims for benefits were denied by the respondent.
2I heard testimonial evidence from the applicant.
ISSUES
3The following issues are in dispute for this hearing:
Is the applicant entitled to receive a weekly Income Replacement Benefit (“IRB”) in the amount of $185.00 per week for the period from November 27, 2017 to date?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to post-104-week IRBs. Accordingly, there is no interest payable because no benefits are overdue.
ANALYSIS
Post-104-week Income Replacement Benefits
5The parties agree that the issue is regarding the applicant’s entitlement to post-104-week IRBs. The parties submit that the applicant received IRBs prior to the time period in dispute.
6The statutory test to meet to be eligible for IRBs post 104 weeks after the accident is set out in s. 6 of the Schedule which provides that for the period after the first 104 weeks of disability, the applicant must demonstrate he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
7I find that the applicant has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He is not entitled to post-104-week IRBs.
8The applicant submits that he is entitled to post-104-week IRBs because he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He submits that he has been unable to work due to the following injuries: physical injuries to his neck, left shoulder, back and knees, psychological injuries, headaches, migraines and post-concussion symptoms.
9The applicant submits that the period in question for entitlement to post-104-week IRBs is either until he started working at Drewlo Holdings Inc., which is 79 weeks of post-104-week IRBs totaling $14,615.00, plus interest, or, until the time that he started working at LIDS Sports Group, which is 101 weeks of post-104-week IRBs, excluding the 5 weeks he worked at Drewlo Holdings Inc., which totals $18,685.00, plus interest.
10At the present time, the applicant is a university student who is set to graduate with his degree in April of 2021. He submits that the job at Drewlo Holdings Inc. was 40 hours per week and the job aggravated his physical symptoms to the point where he had to stop working there several months before his schooling resumed; however, the job at LIDS Sports Group was successful. He submits that over the course of the 3.5 months of employment at LIDS Sports Group, he worked an approximate average of nine hours per week. The applicant is no longer employed at LIDS Sports Group due to a loss of employment as a result of the COVID-19 pandemic. The applicant is not claiming post-104-week IRBs past the start of his employment at LIDS Sports Group because he submits that, at that point in time, he was able to work and was doing better at school as well. He testified that he was able to work because, as a human kinetics major, he has more insight on how the structure of his muscles are working during the time of injury and what he needs to do to help himself get better.
11The respondent submits that the applicant does not meet the test for post-104-week IRBs because it agrees with the opinion of its assessors, Ms. Kimberly Antonioni (vocational evaluator/psychometrist), Dr. John Clifford (physiatrist), Dr. Mark Watson (neuropsychologist) and Mr. Andy Lefebvre (physiotherapist), who concluded that the applicant does not meet the pre-104-week IRB test.
12In support of his claim for post-104-week IRBs, the applicant relies on the opinions of Dr. Sara Mitchell (neurologist), Dr. Maneet Bhatia (psychologist) and Dr. Josh Muhlstock (physiatrist). The applicant submits that all three expert reports are dated November 12, 2019, so these assessments took place almost two years after the respondent’s insurer’s examination (“IE”) reports. The applicant submits that these reports give a lot more history and are able to speak to how the applicant has been doing in school and his function at that point.
13The applicant confirmed that all three of his expert reports were engaged with respect to the applicant’s accident-related tort action. The respondent submits that little weight should be given to the applicant’s expert reports because they are not for his accident benefits claim and do not address the post-104-test for IRBs. I find that although the reports were not prepared for the purpose of assessing the applicant’s entitlement to post-104-week IRBs, the content within the reports can still provide me with information regarding whether the applicant suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
14Dr. Mitchell, neurologist, indicates that based on her neurological assessment of the applicant on July 18, 2019, and as outlined in her report of November 12, 2019, it is her opinion that the applicant has the following neurological diagnoses: a resolved mild traumatic brain injury; unresolved post-traumatic chronic tension headaches; and unresolved post-traumatic migraine type headaches. She opined that although it is difficult to determine definitively if the applicant sustained a mild traumatic brain injury during the accident, on balance of probabilities, he likely suffered a mild traumatic brain injury in the accident. She opined that the intense nature of the applicant’s headache pain is certainly limiting his cognitive functioning, impacting his sleep and mood. On brief bedside cognitive testing, he reported below the cut-off of normal with inefficiencies in attention and working memory. She opined that he presents with symptoms concerning for depression and anxiety, most likely to be a direct result of the headaches compounded by the change in lifestyle and loss of quality of life following the collision. He scored in the “Borderline Clinical Depression” range on the Beck Depression Inventory and in the “Moderate Anxiety” range on the Beck Anxiety Inventory. She opined that the job demands of his vocation involve a variety of physical demands that she believed are outside of the applicant’s overall capacity at this time given his difficulties from a neurological perspective. Realistically, she did not believe that he is competitively employable in his pre-accident role and that he would require workplace modifications.
15Dr. Muhlstock, physiatrist, indicates that based on his physiatry assessment of the applicant on September 9, 2019, and as outlined in his report of November 12, 2019, it is his opinion that the applicant is suffering from the following impairments as a result of the accident: chronic myofascial neck and upper back pain; chronic myofascial midback pain; chronic mechanical/myofascial lower back pain; chronic left shoulder pain; and chronic left upper extremity weakness. He opined that the applicant would be limited in or have difficulty with the following as a result of his injuries sustained in the accident: Maintaining prolonged postures of the spine; prolonged sitting, standing or walking; heavy, repetitive or overhead use of the left upper extremity; heavy lifting; as well as repetitive bending, lifting or twisting at the waist. He opined that these limitations and impairments potentially could affect the applicant’s ability to perform his pre-accident housekeeping and home maintenance tasks, his recreational/avocational pursuits, as well as vocational duties, with the exception of his self-care tasks, which he has resumed without significant difficulty. In his opinion, the applicant is more suited to a part-time position with, at most, light strength requirements in terms of the requisite strength demands, and which would allow him to sit or stand as necessary and take frequent breaks to stretch and move around as necessary.
16Dr. Bhatia, psychologist, indicates that based on his psychological assessment of the applicant on July 30, 2019, and as outlined in his report of November 12, 2019, it is his opinion that the applicant meets the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) diagnostic criteria for the following: Major Depressive Disorder, Moderate, Single episode without psychotic features; Posttraumatic Stress Disorder (“PTSD”); Somatic Symptom Disorder, Moderate, persistent with predominant Pain; and Specific Phobia-Situational type (automobile anxiety-driver, passenger). In his clinical opinion, on the balance of probabilities, the applicant has suffered an exacerbation of previous psychological difficulties including a pre-existing tendency for him to experience depressive symptomology and the emergence of new psychological injuries that are severe and ongoing in nature as a result of the accident. He opined that from a strictly psychological perspective, the applicant’s psychological difficulties coping with pain as well as his depressive experience, accident acquired cognitive concerns and PTSD interfere with his ability to participate in his vocational and avocational pursuits including his ability to study, maintain work and participate in the social domains of his life.
17The respondent relies on the six assessments and one addendum report conducted by Ms. Antonioni (who conducted two assessments), Dr. Clifford, Dr. Watson (who conducted two assessments) and Mr. Lefebvre in support of why the applicant is not entitled to post-104-week IRBs. The applicant was assessed by Ms. Antonioni for a vocational assessment and a transferable skills analysis on August 17, 2017, by Dr. Clifford for a physiatry assessment on August 30, 2017, by Dr. Watson for a psychological assessment and a neurocognitive assessment on September 14, 2017 and by Mr. Lefebvre for a WorkWell functional capacity evaluation on September 25 and 26, 2017. The multidisciplinary assessment report was issued on October 6, 2017. Dr. Clifford also completed an addendum report to his physiatry assessment dated January 17, 2018.
18Ms. Antonioni in the IE report for a vocational assessment detailed the applicant’s past work experience, including his part-time work as a cook and cleaner at a pizza place where he was responsible for prepping food and cooking pizza, cleaning duties which involved mopping and organizing boxes, cashier and customer service work. He also worked as a summer day camp counsellor, where his duties involved supervising children under the age of 12 to ensure their safety. He also had work experience as a packager where he packed flyers and boxed them for delivery. The applicant reported having average computer skills with knowledge of Internet, email, Microsoft Word, Microsoft Excel and social media. Ms. Antonioni indicated that testing of the applicant suggested a low average to average learning capacity; above average scores in spatial relations and numerical ability; and average scores in the following: mechanical reasoning, verbal reasoning, language usage, word knowledge and perceptual speed and accuracy. Below average scores were identified in manual speed and dexterity. Ms. Antonioni concluded that the applicant does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. She opined that given his past employment as a camp counsellor, as well as a cook/cashier, and the results of the assessment combined with his successful completion of his first year of university, he demonstrated the ability to engage in suitable employment. Ms. Antonioni listed the following occupations that the applicant could, in principle, consider provided they are within his physical restrictions and medical clearance is granted:
Customer Service Representative, involving limited strength and body position of sitting;
Data Entry, involving limited strength and body position of sitting;
Retail Salesclerk, involving light strength and standing and/or walking (i.e., car rental; may be able to use a sit/stand stool);
Front Desk Clerks (except hotel), involving limited strength and body position of sitting; and
Telemarketer, involving limited strength and body position of sitting.
19Ms. Antonioni in the IE report for a transferable skills analysis opined that the best-selected occupation, with respect to geographic area was the Retail Salesclerk role, which would require minimal to no retraining. She opined that the best selected occupation, with respect to work history and education, was the Retail Salesclerk role as that role would be the easiest work situation for the applicant to return to due to his previous experience working with and serving the public, as well as his experience as a cashier.
20Dr. Clifford in the IE report for a physiatry assessment concluded that there was no evidence suggesting that the applicant continues to suffer a complete inability to engage in any appropriate employment as identified in the concurrent vocational report provided by Ms. Antonioni. He opined that at the time of the physical examination on August 30, 2017, there was no evidence of any neurological impairment. From an orthopaedic perspective, there was no evidence of any obvious impairment involving either shoulder joint. While the physical examination of the knees was largely normal, Dr. Clifford remarked that significant quadriceps atrophy was noted on the right side, suggesting either a remote or ongoing impairment of the right knee.
21Dr. Watson in the IE report for a psychological assessment concluded that the following clinical conditions were likely present based on the DSM-5: Unspecified Somatic Symptom and Related Disorder; and features of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He opined that the diagnoses result in depressive, anxious and somatic issues that impair but do not disable the applicant from engaging in any employment for which he is reasonably suited by education, training, or experience as a direct result of the accident. Dr. Watson noted that due to validity issues with the applicant’s test data, he was unable to rely on any scores falling in the impaired range and was forced to consider the impact of poor engagement, symptom exaggeration/amplification, feigning or dissimulation.
22Dr. Watson in the IE report for a neurocognitive assessment opined that due to the time that has passed since the accident, the applicant does not and would not be expected to qualify for a neurocognitive diagnosis. He concluded that no neurocognitive conditions as a result of the accident were identified that would leave the applicant unable to engage in any employment for which he is reasonably suited by education, training, or experience. Similar to the psychological IE assessment, Dr. Watson noted validity issues with the applicant’s test data.
23Mr. Lefebvre’s role in the IE report for a WorkWell functional capacity evaluation was to determine the applicant’s functional abilities, with job matching based on the concurrent vocational opinion provided by Ms. Antonioni. During the evaluation, the applicant voluntarily demonstrated abilities within the light to medium Physical Demands Characteristic Level. The National Occupational Classification System defines “light level” as handling loads between 11 pounds and 22 pounds and defines “medium level” as handling loads between 22 pounds and 44 pounds. Mr. Lefebvre concluded that the applicant’s demonstrated capability met or exceeded the physical demands of the occupations identified by Ms. Antonioni for which the applicant was considered to be reasonably suited by education, training and experience.
The Customer Service Representative role involves limited strength and body position of sitting and requires the applicant to sit without signs of discomfort for over 30 minutes.
The Data Entry role requires limited strength and body position of sitting, requires the applicant to frequently sit and light to medium strength.
The Retail Salesclerk role requires light strength and standing and/or walking (i.e., car rental, may be able to use a sit/stand stool), requires the applicant to frequently sit and light to medium strength.
The Front Desk Clerk role (except hotel) requires limited strength and body position of sitting, requires the applicant to frequently sit and light to medium strength.
The Telemarketer role requires limited strength and body position of sitting, requires the applicant to frequently sit and light to medium strength.
24Dr. Clifford completed a physiatry addendum report issued on January 17, 2018. Dr. Clifford was provided with additional clinical documentation from prior to the accident, including records from the family physician and St. Joseph’s Health Care London, as well as post-accident records from the family physician, St. Joseph’s Health Care London and Oxford Spine Centre. He concluded that a review of these documents required no change in the opinions he expressed in his physiatry assessment, when he assessed the applicant on August 30, 2017.
25I find that the applicant has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He is not entitled to post-104-week IRBs.
26The focus of whether the applicant is entitled to post-104-week IRBs is whether the applicant suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience as of November 27, 2017 and onwards. I am not persuaded by the applicant’s medical evidence and testimony that he could not work in November of 2017.
27The applicant submits that his education, training and experience was very limited at the time of being cut off IRBs. The applicant testified that in the fall of 2017, when his IRBs were stopped, he was about 1.5 years into his university studies. He testified that he was taking four courses instead of a five-course workload because he was not able to maintain that large of a course load. The applicant testified that he improved academically starting in the summer of 2019 because he was taking a much lighter course load and had figured out how to work with his issues.
28At the time of the accident, in 2015, he was working as a line cook at a pizza place and he was supposed to work as a summer camp counsellor. His injuries prevented him from working and he received IRBs from the respondent. He did not attempt to work again until his position as a construction labourer at Drewlo Holdings Inc. in June of 2019. He began employment at LIDS Sports Group in December of 2019. The applicant testified that during the relevant time period in dispute from November 27, 2017 to when he began working at LIDS Sports Group in December of 2019, he had back pain from standing up for too long or sitting for too long. He testified that he would lie down on the floor if he could at school to allow his back to relax a bit before walking again. Furthermore, he had trouble with his concentration and believes he would have had temper issues when dealing with customers. During this time, he testified that he had depression and anxiety as well.
29Although the applicant’s expert reports are more recent than the respondent’s expert reports, I prefer the medical evidence of the respondent as it is more relevant to the legal test the applicant must meet. As noted above, the applicant confirmed that all three of his expert reports were engaged with respect to his accident-related tort action, whereas the respondent’s expert reports address the post-104-week IRB legal test. On the evidence available regarding the applicant’s health condition in November of 2017 and onwards, I see no reason to depart from the findings made by the respondent in its IE reports.
30I find that the clinical notes and records from the various physicians the applicant saw in 2017, 2018 and 2019 reveal that the applicant reported various complaints of aches and pains, was assessed for the aches and pains and that the applicant’s health condition was assessed to be generally normal and stable. I rely on the following medical evidence:
i. The clinical notes and records of Dr. Gulrukh Rextin, the applicant’s family physician, reveal the applicant’s complaints. On July 28, 2017, the applicant requested an MRI for his knees. Dr. Rextin examined the applicant’s knees and opined that the examination was normal and that there was no indication that the applicant required an MRI.
ii. The applicant was assessed by a chiropractor, Dr. Jamal Alaloul, on December 6, 2017. Dr. Alaloul diagnosed the applicant with the following: lower back ache radiating to left lower extremity, numbness in left foot, whiplash injury and constant severe headache.
iii. On December 28, 2017, the applicant saw Dr. Rextin regarding multiple joint pains, including a sore left ankle, right and left knee, and left wrist. His right knee was bothering him more than his ankle and wrist. He said that the pain was not affecting his sleep, gait or his general life. On February 21, 2018, he saw the doctor for a follow-up where he indicated that he was still having joint pains, but that his knees were feeling better. His most affected joints were his shoulders, elbows and wrists.
iv. On June 20, 2018, he saw Dr. Ihab Abdelmalek, family physician, regarding lower back pain, swelling of the knees and fingers.
v. On July 3, 2018, he reported having lower back pain on and off for six months. He said that walking and moving his legs made it worse. The applicant reported that a walk-in clinic physician completed imaging and he was informed that “everything was normal.”
vi. The applicant saw, Dr. Madison Leitch, rheumatologist, for a rheumatology consultation on July 17, 2018 for his polyarticular joint pain. Dr. Leitch noted that an X-ray taken in June of 2018 of the applicant’s lumbar spine was normal.
vii. On July 26, 2018, the applicant complained to Dr. Rextin regarding his lower back pain, which he reported to be persistent to the middle of lower back and aggravated with right foot movement.
viii. He saw Dr. Leitch for a follow up on September 26, 2018. The applicant’s complaints included the following: unilateral right leg swelling and stiffness in the right knee which resolved in one week. The applicant described bilateral “sausage digits” that affected every digit which again persisted for one week. The applicant reported that he had developed right-sided lower back pain and associated morning stiffness, and had a difficult time walking or working for a few days. Dr. Leitch opined that the applicant continues to have ongoing low grade arthralgias and stiffness. Dr. Leitch concluded that a review of the MRI of the sacroiliac joint from August of 2018, as well as his bloodwork from July of 2018 were reassuring and did not show an axial Seronegative Spondyloarthropathy or active inflammation. He saw Dr. Leitch once again for a follow up September 3, 2019. The doctor opined that the applicant did not promote any history consistent with a developing inflammatory arthritis, he continued to have low grade migratory arthralgias, but he has been generally stable and taking no pain medications.
31I place weight on the IE report by Ms. Antonioni for a vocational assessment, where, as noted above, she indicated that testing of the applicant suggested a low average to average learning capacity; above average scores in spatial relations and numerical ability; and average scores in the following: mechanical reasoning, verbal reasoning, language usage, word knowledge and perceptual speed and accuracy. Below average scores were identified in manual speed and dexterity. She opined that given the applicant’s past employment as a camp counsellor, as well as a cook/cashier, and the results of the assessment combined with his successful completion of his first year of university, he demonstrated the ability to engage in suitable employment.
32I place weight on the IE report by Ms. Antonioni for a transferable skills analysis, where she opined that the Retail Salesclerk role was the best selected occupation for the applicant because it would require minimal to no retraining and would be the easiest work situation for the applicant to return to due to his previous experience working with and serving the public, as well as his experience as a cashier.
33Furthermore, I place weight on the WorkWell functional capacity evaluation conducted by Mr. Lefebvre, whose role was to determine the applicant’s functional abilities. As noted above, during the evaluation, the applicant voluntarily demonstrated abilities within the light to medium Physical Demands Characteristic Level. Mr. Lefebvre concluded that the applicant’s demonstrated capability met or exceeded the physical demands of the occupations identified by Ms. Antonioni, including the Retail Salesclerk role, which requires light strength and standing and/or walking (i.e., car rental, may be able to use a sit/stand stool), requires the applicant to frequently sit and light to medium strength.
34The applicant testified that the only way he could perform these alternative occupations that the respondent proposes is if he compartmentalized them for a very short period of time and this is problematic because employers are looking for employees who can engage in up to eight-hour shifts with little supervision or assistance. He testified that this is problematic because sitting causes him pain and the respondent’s own physiotherapist said that there are limitations to him sitting for one-third to two-thirds of the day. Furthermore, the applicant testified that except for the Data Entry job, the other four occupations centre on customer service jobs and that is problematic because during the time period of 2017 to 2019, he could not deal with customers due to a struggle to keep his anger and outbursts under control, a common symptom of a concussion. Furthermore, he testified that his cognitive processing speed would be problematic for the proposed Data Entry job and the job environment would aggravate his headaches and migraines and make his symptoms worse.
35When the applicant was asked whether he could work as a Retail Salesclerk in 2017 to 2019, similar to the position he had at the LIDS Sports Group, he testified that he could not because there would be issues with his back, issues with pain, stress, concussion and anxiety. He thought sitting and standing would be too much. When asked about potentially working in a car rental place with a sit/stand stool, he said that a stool like that would have no lumbar support and would affect his lower back.
36I find that the evidence does not support that the applicant’s issues with his back, pain, stress, concussion and anxiety were debilitating to the extent that the applicant was functionally impaired and could not engage in a Retail Salesclerk role. In such a role, he would have access to a sit/stand stool so that he could alternate between sitting and standing during the workday. I find that the medical evidence which indicates that the applicant’s health condition was stable or normal at the end of 2017 and onwards, in conjunction with the applicant’s past employment experience and academic achievements, indicate that he was able to engage in suitable employment. At that point in time, the applicant had completed 1.5 years of university and was completing a four-course workload. He testified that he could independently conduct personal care tasks and activities of daily living. During the applicant’s psychological assessment with Dr. Watson on September 14, 2017, the applicant reported that he had been involved with hiking and biking, although he attended the gym less and participated less in soccer than prior to the accident.
37I find that the applicant has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. He is not entitled to post-104-week IRBs.
CONCLUSION and ORDER
38The applicant is not entitled to post-104-week IRBs. Accordingly, there is no interest payable because no benefits are overdue.
Date of Issue: June 17, 2021
_____________________________
Melody Maleki-Yazdi, Adjudicator