Release date: 07/09/2021
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:
Jennifer Staszewski
Applicant
and
Aviva Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Tara M. Sweeney, Counsel
Sandra LeBrun, Counsel
For the Respondent:
Danielle N. Wilkinson, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident while riding her bicycle on November 2, 2017 and sought benefits, including an income replacement benefit (“IRB”), from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule'').
2Aviva paid the applicant an IRB in the amount of $400 per week for the period November 10, 2017 until March 8, 2020 before terminating payment based on s. 44 multi-disciplinary reports that found she did not suffer a complete inability to engage in employment for which she is reasonably suited by education, training or experience 104-weeks post-accident. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUE IN DISPUTE
3The parties agree that the issues in dispute are as follows:
i. Is the applicant entitled to an IRB in the amount of $400 per week from March 8, 2020 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
4The applicant has not demonstrated entitlement to an IRB in the amount of $400 per week from March 8, 2020 to date and ongoing or applicable interest.
ANALYSIS
Section 6(2)(b)
5As noted, Aviva agreed that the applicant met the pre-104-week IRB test for the period November 10, 2017 to March 8, 2020 and made $400 weekly payments on the basis that she suffered a substantial inability to perform the essential tasks of her pre-accident employment, being the applicable test under s. 5(1). It also made top-up payments during the pre-104-week period to account for income the applicant was deriving from part-time employment. The test for entitlement to post-104-week IRB changes and is set out in s. 6(2)(b). It states that an insurer is not required to pay an IRB 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 they are reasonably suited by education, training or experience.
6The applicant submits that she remains unable to work on a full-time basis and in the same capacity she did before the accident as an optometry assistant and she is therefore entitled to post-104-week IRBs. She submits that she continues to suffer from injuries from the accident, which have developed into a chronic pain condition and post-concussion syndrome in the form of headaches, nausea, difficulty concentrating, insomnia, severe fatigue, an inability to multi-task, anxiety, depression and panic attacks. She is currently working one or two five-hour shifts per week at her friend’s bakery and teaching yoga classes once or twice per month but submits she remains unable to work consecutive days or full-time hours.
7She relies on an April 12, 2019 progress report from her treating neuropsychologist, Dr. O’Farrell, who noted that she reported minimal gains in her gradual return to work, that she reported significant increases in her cognitive and physical symptoms with the increase from two hour to four hour shifts and, as a result, it has led to an increase in her emotional distress. Further, the May 8, 2019 progress report from her occupational therapist (“OT”), Ms. Diotte, states that her previous job duties required a great deal of multi-tasking which the applicant struggled with post-accident, that her work duties aggravated her cognitive symptoms leading to exhaustion, that she was only able to work three days per week twice and frequently leaves early due to increases in her symptoms and that she is highly motivated, so her inability to increase her work aggravates her.
8In response, Aviva submits that the applicant’s education, training and experience demonstrates a woman who is creative and physically active. She holds a Bachelor of Arts Degree, obtained a Superior Pastry Degree and, post-accident, successfully completed an intensive yoga teaching program. Aviva points to the clinical note of her family physician, Dr. Mody, from February 26, 2018, that states she “does not want to waste any more time at her previous employer” and wants to get back to doing the things she enjoys. Aviva submits that the applicant has consistently reported improvement in her symptoms and has demonstrated the cognitive ability to manage and coordinate working part-time at a bakery, working at two yoga studios, volunteering, and engaging in her passions, which is not supportive of a complete inability to engage in any occupation for which she is reasonably suited by education, training and experience. To this end, Aviva relies on a s. 44 multidisciplinary report (consisting of neurological, musculoskeletal, neuropsychological, psychological, functional abilities, vocational and labour market assessments) dated February 19, 2020 to support its contention that the applicant does not meet the IRB test.
The applicant has not demonstrated that she suffers a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience
9On balance, I agree with Aviva and find that the applicant has not met her onus of demonstrating 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.
10While I am alive to the applicant’s self-reporting of her inability to pursue full-time work at, or similar to, her pre-accident position as an optometry assistant, I find that her submissions are not supported by any objective, compelling medical evidence speaking to a complete inability to engage in any employment for which she is suited by education, training or experience during the period in dispute or on an ongoing basis. In contrast, I find Aviva’s seven s. 44 reports from multiple disciplines that all found that the applicant does not meet the post-104-week IRB test under s. 6(2)(b) to be a compelling indication that, while the applicant may have lingering issues, she does not have a complete inability to engage in employment that she is suited for and ongoing IRBs are not appropriate.
11Indeed, the evidence offered by the applicant is somewhat dated when applied to the post-104-week period at issue, as the applicant relies on the progress reports of Dr. O’Farrell from April 2019 and Ms. Diotte from May 2019. These reports were completed within the pre-104 period and equally document the applicant’s progress (and set-backs) during this time, however, critically, neither of these reports indicate that the applicant meets the IRB test during the relevant period, being March 8, 2020 and ongoing, nor do they speak to a complete inability to engage in any employment moving forward. While Dr. O’Farrell later recommended an additional six psychological treatment sessions in early 2020 to continue to address the applicant’s function, this recommendation is not the type of medical evidence required to meet the stringent post-104-week test.
12While the applicant is correct that the Schedule does not state that a medico-legal report is strictly required to meet the test, there must be something more than the applicant’s self-reporting to justify ongoing income replacement and especially so in the face of seven s. 44 reports finding otherwise. For example, Dr. Mody’s opinion is from January 25, 2018, or more than two years prior to Aviva’s termination based on the s. 44 reports. In a similar vein, Dr. Marshall’s opinion regarding her inability to return to work is from April 23, 2018 and the Tribunal was not directed to a progress report or opinion speaking to the applicant’s post-104-week ability to return to work.
13In my view, and with respect, the applicant has not rebutted the veritable mountain of medical evidence and opinion stating she does not meet the test. All seven of the s. 44 assessors agreed that the applicant did not suffer a complete inability to engage in any employment for which she is suited. On the limited contemporaneous medical evidence before the Tribunal, I see no reason to interfere with these determinations, which I find were fair, as they conceded that the applicant continues to experience the symptoms she reports (short-term memory issues, anxiety, fatigue, amongst others) and that her ability to work full-time is likely impacted, but that these limitations do not rise to a complete inability to engage in any employment that she is suited for. While the applicant points to Dr. Garcia and Dr. Mendis’ opinions from their s. 44 reports that her ability to work full-time hours is compromised or decreased by her mental health concerns and post-concussion symptoms, respectively, this is not akin to a positive finding that she has a complete inability to engage in any employment for which she is suited by education, experience or training. In any event, the fact remains that both assessors still stated that she does not meet the post-104-week IRB test, which is not assistive to the applicant’s case.
14That the applicant has also been able to pivot to other forms of employment and passions during this period, albeit in a reduced capacity, provides further support, in my view, for Aviva’s contention that she has demonstrated the ability to both train and engage in new occupations and engage in occupations that she was previously trained in or educated in. For example, the applicant, who previously obtained a pastry degree from Le Cordon Bleu, was able to transition to work at her friend’s bakery. As part of her rehabilitation process, and on the recommendation of her OT, she completed a 200-hour yoga training period over a six-week period to become a yoga instructor. During the pre-104-week IRB period and, presumably, to date, she continues to work at the bakery and teach yoga.
15While the applicant asserts that these combined pursuits do not match her pre-accident income, she did not demonstrate that she has attempted and failed to increase to full-time work as a yoga teacher or as a baker for the period in dispute or that she has attempted to apply her bachelor’s degree to a less cognitively demanding form of employment. While she reports an inability to work more than five hours per day or three non-consecutive days per week, as noted, she did not provide a medical opinion to support this complete inability and the s. 44 reports did not find that her reduced capacity met the complete inability test. The applicant’s unsuccessful attempt to return to her position as an optometry assistant during the pre-104-week period is not an indication of her complete inability to do so in the post-104-week period and it is not an indication that she meets the more stringent complete inability to engage in any employment test on an ongoing basis.
16Further, I agree with Aviva that this is not a situation where the applicant has limited language skills, education, training or experience that, combined with her accident-related symptoms, would support a complete inability to engage in any employment or would whittle down the pool of potential employment opportunities available to her. Indeed, the applicant has a bachelor’s degree and a pastry degree, has demonstrated the ability to learn new skills and implement her own experiences in her yoga teaching practice, has shown the ability to organize and prioritize her activities, remains quite physically active, has found enjoyment in various artistic pursuits and continues to engage in her community through volunteer work. While it is not determinative, I agree with Aviva that the applicant’s reporting in Dr. Mody’s clinical notes that she “does not want to waste any more time at her previous employer”, “wants to do some volunteer work” and “get back to the things she likes: outdoors, pottery, and rock climbing” is strongly suggestive of a motivation to pursue a post-accident life filled with activities and occupations that she values rather than out of medical necessity.
17Perhaps the most compelling evidence of this comes from the job-specific s. 44 reports. The Functional Abilities Evaluation of Dr. Marion found that the applicant demonstrated a tolerance of “continuous”, representing 67-100% of an eight-hour workday and that she was able to tolerate “medium” work demands. The Vocational Assessment by Mr. Egarhos found that the applicant was capable of many occupations, including, amongst other jobs, being a pastry chef, an administrative assistant, a receptionist/clerk and a graphic designer. Where the applicant has provided limited evidence to rebut these opinions, I find them to be a compelling indication that the applicant has the ability to do many things even if she struggled with the tasks of her pre-accident occupation as a full-time optometry assistant. I also find that these opinions are in line with the opinions of Dr. Garcia and Dr. Mendis cited by the applicant and, more generally, supported by the bulk of the medical evidence and the applicant’s self-reporting.
18While I accept that the applicant may continue to face difficulties returning to full-time work and may need ongoing treatment, on the evidence, I do not accept that her impairments render her completely unable to engage in any employment or occupation that she is reasonably suited for by education, training or experience. I find the applicant has not satisfied her burden to prove that she meets the stringent post-104-week IRB test under s. 6(2)(b) of the Schedule. Accordingly, she is not entitled to payment of an IRB in the amount of $400 for the period in dispute or ongoing. As no benefits are due, it follows that no interest is payable under s. 51.
ORDER
19The applicant has not demonstrated entitlement to an IRB in the amount of $400 per week from March 8, 2020 to date and ongoing or applicable interest.
Date of Issue: July 9, 2021
_______________________
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.