Release date: 06/24/2021
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:
Saraswathithevi Pushparajan
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
VICE-CHAIR:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Saraswathithevi Pushparajan, Applicant
Ivy So, Paralegal
For the Respondent:
Bland McPherson, AB Specialist
Brendan Sheehan, Counsel
Interpreter:
Thayani Gunanathan (Tamil)
Heard by Teleconference:
November 2, 2020
OVERVIEW
1The applicant, Saraswathithevi Pushparajan (“Ms. Pushparajan”), was involved in an automobile accident on July 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''), O. Reg 34/10. Ms. Pushparajan’s income replacement benefit (“IRB”) was stopped by the respondent Aviva Insurance Canada (“Aviva”) after a number of months so she submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) arguing that the IRB should be reinstated.
2There are two applicable tests for entitlement to an IRB. The first test applies for the first 104 weeks post accident. It requires the applicant to demonstrate that she has a substantial inability to perform the essential tasks of her employment (the substantial inability test). Aviva determined that Ms. Pushparajan no longer met the substantial inability test and terminated her benefits after approximately 8 months.
3By the time of the hearing, more than 104 weeks had elapsed since the accident. Ms. Pushparajan seeks an ongoing IRB, which means she must satisfy the more stringent post-104 week test: a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience (the complete inability test).
4Since I find that Ms. Pushparajan satisfies the complete inability test, that finding includes a finding that she satisfied the substantial inability test for the first 104 weeks.
ISSUES IN DISPUTE
5The issues to be decided in the hearing are:
Is the applicant entitled to an IRB of $315.08 per week from March 19, 2019 to date and ongoing? I note with respect to this issue that quantum was not in dispute.
Is the applicant entitled to interest on any overdue payment of benefits?
LAW
6As stated above, the Schedule contains two tests for entitlement to an IRB. The first test applicable to Ms. Pushparajan is set out in s. 5(1):
The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
1.The insured person,
i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
7Section 6(2) limits Aviva’s liability to pay an IRB for the first week after the accident or after the lapse of 104 weeks post-accident:
The insurer is not required to pay an income replacement benefit,
(a) for the first week of the disability; or
(b) 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.
8In addition to the nature of the injuries sustained in the accident, s. 6(2) asks me to consider Ms. Pushparajan’s employability in light of her education, training or experience.
ANALYSIS
Ms. Pushparajan’s Background – Education, Training and Experience
9Ms. Pushparajan was born in northern Sri Lanka in 1961, an area torn by a civil war for many years. She and her family fled the country in 1992 and sought and were granted refugee status in Canada. She is now a citizen of Canada. While in Sri Lanka, Ms. Pushparajan completed education to the grade 10 level and thereafter helped around the house.
10Ms. Pushparajan has limited ability in English. She testified through a Tamil interpreter. She stated that she can exchange basic social pleasantries in English, such as responding to “how are you,” or “how are you doing,” but cannot follow conversations.
11In 2007, she started working at The Cable Shoppe as a packer. She described a high-pressure work environment where, as part of a team of three, she would construct and pack boxes and stow them on a skid. The team was required to pack 360 boxes an hour, that is one box every 10 seconds. If the team failed to meet its quota, their supervisor had little reticence about showing his displeasure. The job required her to stand for her full eight-hour shift, with two 10-minute coffee breaks and a 30-minute lunch break.
12She described the job requirements as involving lifting, taking cardboard box forms down, shaping them, filling and taping them, then lifting the completed boxes to the skid. She also stated that she enjoyed her work and intended to work to retirement age or beyond.
13Her background, training and experience indicate that after completing grade 10, she worked as a homemaker for her family for approximately 30 years and, more recently, for the last 10- or 11-years pre-accident, she worked at The Cable Shoppe. Both occupations, whether for remuneration or otherwise, are physically demanding. Neither has required her to have a great facility in the English language or higher education.
Ms. Pushparajan’s Impairment Complaints
14Ms. Pushparajan’s complaints are set out in various assessment reports in a similar manner. Dr. Stephen Brown, an anaesthesiologist specializing in pain management, retained by Ms. Pushparajan to give expert evidence, stated them as follows:
16 months after the subject MVA Ms. Pushparajan's chief complaints are low back pain and neck pain. Her responses to the Short Form McGill Pain Questionnaire (SF-MPQ-2) were further corroborated and explored during our interview.
She reports intermittent pain in the lumbosacral region (L > R) with aching, throbbing, and piercing characteristics. The pain intensity ranges from 0-5/10. It is worse after prolonged periods of standing, driving, or sitting. Rest, relaxation, topical agents, and medications provide transient relief…The pain can sometimes "shoot" to the left leg.
15Dr. Yuri Marchuk, a specialist in physical and rehabilitation medicine, gives a more detailed breakdown of Ms. Pushparajan’s symptoms, especially noting the extent to which the applicant reports impairment as a result of the pain she suffers from.
16In addition to these findings, various assessors commented on whether Ms. Pushparajan demonstrated pain behaviours during their assessments. Dr. Marchuk noted at his physiatry assessment on February 23, 2019: “She did not demonstrate any pain behaviours. She was slightly guarded. She did not appear to be in distress. She was not wearing any bracing devices or using any gait aids.” On November 1, 2019, Dr. Brown noted: “Transitioning from standing to sitting was difficult and accompanied by wincing and grimacing …There were no exaggerated pain behaviours noted.” Finally, at a psychological assessment on August 16, 2020, the assessors note: “She exhibited pain-related behaviours such as shifting in her chair, stretching her back and legs, and standing up from the chair several times. She also was grimacing and sighing due to pain.”
Pre-Accident Complaints
17Aviva takes the position that the impairments Ms. Pushparajan suffers from arise out of pre-existing degenerative disc disease (“DDD”) and osteoarthritis (“OA”). These are conditions that develop over time and, thus, are not accident related. In his report dated March 11, 2019, Dr. Marchuk reviews the results of imaging studies done on October 18, 2018, which is after the accident. He notes:
Cervical spine: No fracture is seen. Soft tissues are unremarkable. There is mild loss of lordosis, there is slight left convexed scoliosis and there is restriction of flexion and extension suggesting pain or muscle spasm. There is moderate DDD at C5-6. There is bony encroachment exit foramina bilaterally and posterior lipping at C5-6. There is mild OA in the middle and lower facets. Calcification of the nuchal ligament is seen posterior to C5 and C6. Lumbar spine, sacrum and coccyx: No fracture or bony destruction is seen. The pedicles are intact. There is mild left convexed rotoscoliosis. Lateral alignment is normal. There is mild DDD at L2-3-4. Facets and S.I. joints are unremarkable. There is calcification of the abdominal aorta. Impression: Cervical spine pain or muscle spasm. Moderate DDD C5-6. Bony encroachment exits foramina bilaterally C5-6 might have root implications. Posterior lipping C5-6 might cause spinal stenosis. Mild OA in the middle and lower facets. Otherwise normal cervical spine. Mild DDD L2-3-4. Left convexed rotoscoliosis. Otherwise normal lumbar spine, sacrum and coccyx. Abdominal aorta is atherosclerotic.
18In addition to the DDD and OA noted above, Aviva refers to Ms. Pushparajan’s family doctor’s clinical notes and records for pre-accident reports of back and knee pain. Aviva submits that it is these pre-accident issues that are the cause of Ms. Pushparajan’s current impairments and inability to work, not the accident.
19Ms. Pushparajan admits that she consulted her family doctor about knee pain but none of her pre-existing conditions prevented her from working.
20An essential difference between the report of Dr. Marchuk and those of Dr. Brown and the psychological assessors, Sathis Kumar Srinivasan, RP and Erin D. Langis, M.A., C. Psych., is the treatment of Ms. Pushparajan’s non-physical injuries. Dr. Marchuk declines to deal with them, confining his diagnosis to her physical injuries. In addressing them, he states:
It is noteworthy that the claimant is also complaining of the following symptoms since the index accident, which are outside of my scope to address: headaches, shooting pain into her left leg which she describes as a dull pain with numbness and tingling, shooting pain into her left arm which she describes as a dull pain, anxiety, phobias, stress, problems initiating sleep, sleep interruptions, difficulty with concentration, irritation and agitation, fatigue and nausea.
21Dr. Brown notes that Ms. Pushparajan is pain focussed in arriving at a diagnosis of chronic pain syndrome. He states:
The client reports feelings of frustration, anxiety, helplessness, depressed mood, and isolation. She describes her painful symptoms as "overwhelming" and having severely compromised her ability to "lead a normal life". Sleep deprivation further contributes to her decreased energy levels and anhedonia. She describes constantly worrying about whether her pain represents "something serious" and is concerned that she has become irritable and short-tempered. Pain is "always on her mind" and results in a decreased ability to concentrate, communicate, and interact with others. Significant (car) passenger anxiety persists.
22The psychological assessors diagnosed Ms. Pushparajan with several psychological conditions, include Somatic Symptom Disorder with Predominant Pain, Persistent, Moderate. Somatic Symptom Disorder with Predominant Pain is the current term used in the psychological/psychiatric community for chronic pain syndrome. They outline their findings as follows:
Ms. Pushparajan's presentation is consistent with full DSM-5 and ICD-10 criteria for the diagnoses of: Other Specified Trauma and Stressor-Related Disorder (Adjustmentlike disorder with prolonged duration of more than six months), Specific Phobia, Situational (passenger related), and Somatic Symptom Disorder, with Predominant Pain, Persistent, Moderate.
23Aviva argues that Ms. Pushparajan does not meet the six-part test for chronic pain syndrome adopted by Dr. Brown in his evidence and set out in the American Medical Association Guides to the Evaluation of Permanent Impairment - 6th Edition (the “Guides”). While the Guides are not binding on me, in the diagnosis of chronic pain they can provide guidance.
24The test has been adopted by the Tribunal to determine whether an applicant has chronic pain syndrome or not. In 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at paragraph [6], the Tribunal adopted the test. I find the Tribunal’s use of the Guides and the conclusions it reached persuasive in this case. The Tribunal addressed the question as follows:
Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain. Aviva submits that [The applicant]'s claim of chronic pain should be assessed against six criteria described in the American Medical Association (AMA) Guides, which state that at least three of them must be met for a diagnosis of chronic pain syndrome:
(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
(2) Excessive dependence on health care providers, spouse, or family.
(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
(4) Withdrawal from social milieu, including work, recreation, or other social contracts.
(5) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
25In Dr. Brown’s view, Ms. Pushparajan meets criteria 2 through 6 above. He cites Ms. Pushparajan’s dependence on her husband to complete household tasks she previously performed. He notes physical deconditioning and fear-avoidance in his report. His report also notes withdrawal, inability to restore pre-injury function and psychosocial sequelae. When questioned about the dependence and deconditioning criteria, he stated that there was a subjective dimension in his analysis, but he was confident in his attribution of those criteria to Ms. Pushparajan. Even allowing for some variation in those two factors, I find that there is ample evidence in all three reports before me to satisfy criteria 4 through 6. Dr. Marchuk lists the psychological factors at play without stating an opinion and Dr. Brown and the psychological assessors factor them into their analysis in concluding that the applicant suffers from chronic pain syndrome.
The IRB Tests
26Applying the medical evidence to the substantial inability test, I find that, in March 2019, Ms. Pushparajan was unable to perform the essential tasks of her employment due to pain from injuries sustained in the accident. She made a valiant effort to return to work for two days but was prevented from continuing due to pain. She testified that there were no light duty positions available at her workplace, leaving her without a job or income.
27Regardless of whether Ms. Pushparajan’s chronic pain developed into chronic pain syndrome before or after Dr. Marchuk’s assessment, I find that Ms. Pushparajan suffers from chronic pain syndrome. She has been noted to be unable to maintain one position for any length of time. She cannot stand or sit for long periods of time and demonstrated guarding when assessed by Dr. Marchuk, pain and grimaces on transitioning from one position to another when assessed by Dr. Brown, and the need to change position to deal with pain when assessed by the psychological assessors. These factors weigh heavily in considering her overall employability.
28In addition to the factors outlined above, Ms. Pushparajan has had only physically demanding occupations at any time in her life, whether as a homemaker or while working for The Cable Shoppe. That limited work experience, when combined with her low level of English functioning and lack of higher education, would limit her job opportunities to physically demanding jobs, as suggested by Dr. Brown, something she cannot do due to her chronic pain syndrome. I conclude that she meets the complete inability test. She is unable to engage in any employment for which she is suited by education, training or experience.
Causation
29Notwithstanding that Ms. Pushparajan meets the two inability tests, she may still be disentitled to an IRB if the cause of disability is not the motor vehicle accident but her pre-existing condition as Aviva argues. In considering this argument, one overarching fact stands out. On the morning of the accident Ms. Pushparajan was on her way to work at a job she enjoyed and intended to work at until retirement. Since the accident, she has been unable to return to that employment. The accident stands as a bright line in Ms. Pushparajan’s life and it is clear that, but for the accident, she would have continued working as long as the job was available to her.
30In reaching this conclusion I am cognizant of the fact that DDD and OA are progressive conditions that would worsen over time. Aviva asks me to speculate that conditions described as mild or moderate DDD and OA four-months post-accident and having no impact on Ms. Pushparajan’s ability to work would have worsened rapidly and would now account for her complete inability to hold down a physically demanding job. I decline to do so. The “but for” test referred to above does not call for it. It simply requires me to determine if, but for the accident, Ms. Pushparajan would have continued to be gainfully employed. I have answered that in the affirmative. (See Monks v. ING Insurance Company of Canada, 2008 ONCA 269, paragraphs [94] – [96]).
ORDER
31I find that Ms. Pushparajan is entitled to an IRB in the amount of $315.08 from March 19, 2019 to date. She meets both the substantial and the complete inability test in s. 5 and 6 of the Schedule.
32I also find that Ms. Pushparajan is entitled to interest according to s. 51 of the Schedule. I leave it to the parties to apply the statutory interest rates set out in s. 51, but I will remain seized should they be unable to agree on the amount outstanding. Either party may bring a motion before me for the resolution of any interest calculation dispute.
Date of Issue: June 24, 2021
D. Gregory Flude, Vice-Chair