Licence Appeal Tribunal File Number: 20-000143/AABS
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:
Shannon Campbell
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Giovanna Barrasso, Paralegal
For the Respondent:
Taylor Cawley, Counsel
HEARD:
Via written submissions
BACKGROUND
1The applicant was injured in an accident on November 17, 2015 and sought benefits, including an income replacement benefit (“IRB”), from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). At the time, the applicant was employed part-time as a restaurant hostess while attending university full-time. As a result of the accident, she was unable to return to her employment or continue her studies.
2Accordingly, TD paid the applicant an IRB in the amount of $211.74 per week for the period November 24, 2015 to January 14, 2018. TD terminated payment based on s. 44 multi-disciplinary reports that found the applicant did not suffer a complete inability to engage in employment for which she is reasonably suited by education, training or experience at 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:
a. Is the applicant entitled to an IRB from January 24, 2018 to date and ongoing, and if so, in what amount (the applicant claims an amount of $211.75 per week)?
b. Is the applicant entitled to interest on any overdue payment of benefits?
result
4The applicant has demonstrated entitlement to post-104-week IRBs in the amount of $107.25 per week from January 24, 2018 to date and ongoing. As benefits are overdue, it follows that interest applies.
ANALYSIS
IRB
5As noted, TD agreed that the applicant met the pre-104-week IRB test for the period November 24, 2015 to January 14, 2018 and made $211.75 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). At the time, she was employed part-time as a hostess at a restaurant and full-time as a student. 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. The burden remains with the applicant to demonstrate entitlement on a balance of probabilities.
6The applicant submits that she remains unable to work on a full-time basis and in the same capacity she did before the accident and is therefore entitled to post-104-week IRBs from the date of stoppage and ongoing. The applicant argues that at five years post-accident she still has not been approved for a return to full-time work by Dr. Yu, and continues to experience physical and psychological impairments that prevent her from engaging in employment, pointing to her reliance on a counsellor to succeed in her medical administration program and her unsuccessful attempts to begin two new jobs and to start a small business.
7In response, TD submits that the applicant was involved in a minor accident form which she suffered no identifiable injuries. Further, it submits that pre-accident, the medical evidence confirms that she faced major functional psychological issues that raise causation issues. Post-accident, TD submits the applicant returned to school and successfully operated a small business, that surveillance showed a functioning individual capable of vehicular travel and that the s. 44 reports support that the applicant does not suffer from a complete inability to engage in any employment or self-employment for which she is reasonably suited, which is a higher threshold to meet than the pre-104 week test.
The applicant has demonstrated that she suffers a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience
8On balance, I agree with the applicant and find that she has 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.
9On review of the medical documentation, I find there are consistent, contemporaneous indications that the applicant’s psychological symptoms, primarily her anxiety, have prevented her from completely engaging in employment or self-employment for which she is suited up until at least 2021. I agree with the parties that the applicant’s impairments pre-date the accident, as her bouts with anxiety and other psychological symptoms are well-documented several years prior to 2015. Indeed, I find it clear on the evidence that these pre-existing impairments were exacerbated by the 2015 accident and were still present at the time the IRB was terminated, and in the three years’ worth of post-termination medical documentation before the Tribunal.
10I prefer Dr. Fulton’s neuropsychological evaluation report dated January 14, 2021, the clinical notes of the family physician, Dr. Yu, and the evidence related to the applicant’s unsuccessful attempts to return to employment over the s. 44 reports obtained by TD.
11I found Dr. Fulton’s report was thorough, consistent with the bulk of the medical evidence and more attuned to the nuances of the applicant’s struggle to return to a complete engagement with her pre-accident capabilities, which is supported by the applicant’s inability to engage in employment, discussed in greater detail below. I found the s. 44 psychological report of Dr. Lubber, which diagnosed the applicant with a Major Depressive Disorder with Anxious Distress, downplayed the affect that the applicant’s anxiety and accompanying physiological response to same has on her ability to engage in employment for which she is suited. Dr. Lubber’s report was completed in January 2018 and acknowledged that the applicant had similar pre-existing struggles and that the applicant reported her symptoms were exacerbated but chalked the applicant’s complaints up to exacerbation and symptom distortion. That the applicant’s complaints remained consistent until the January 14, 2021 report by Dr. Fulton undermines Dr. Lubber’s opinion that the applicant was magnifying her symptoms or presentation.
12In this vein, I do not find that Ms. Billet’s s. 44 vocational evaluation report or transferable skills analysis report from January 2018 appreciated how the applicant’s psychological symptoms would affect her ability, mentally and physically, to engage in the types of occupations it proposed at the time or to date—being a hostess, customer service clerk, retail associate, ticket taker, etc.—in light of the applicant’s complaints about her inability to handle a rush and the anxiety that leads to her getting flustered and breaking down. Ms. Billet’s report confirmed that the applicant’s learning ability, verbal aptitude, numerical aptitude and motor coordination were all in the below average range or poorer.
13Indeed, perhaps the best example of this is the more recent evidence of the applicant’s abandoned attempt to start a small business, her need for counselling while completing her studies, her last-minute refusal to attend at a job she had accepted and a different employer rescinding a job offer after being unable to accommodate the applicant’s employment needs. The applicant attempted to start a small business making custom items but abandoned the project due to her inability to keep up after orders piled up. In order to complete her Medical Administration Program at Durham College, she was paired with a counsellor from the Access and Support Center, on request from her family physician, to ensure that she had limited sitting requirements, limited presentations to small groups, limited group work, extra time for tests and assignments, flexible deadlines and limited travel time, in addition to ongoing support from the counsellor. With this assistance, she completed the program but was unable to completely engage in the two employment opportunities she was presented.
14For example, in January 2021, she was offered a position as a medical receptionist, confirmed via email. The morning before she was scheduled to begin training, the applicant submits she had a severe panic attack that led to her becoming physically ill. The applicant emailed the clinic at 7:40am and rescinded her acceptance of the offer. Later on, in March 2021, the applicant was offered a position with Lakeridge Health as a part-time Unit Clerk, conditional on completion of a pre-employment health assessment. However, after Dr. Yu completed the required form stating that the applicant continued to have back issues and severe social anxiety requiring shorter work weeks, the offer was withdrawn. On these facts, I agree with the applicant that it is clear that her anxiety and psychological/physiological responses prevented her from engaging in employment that she was suited for by education and training.
15Further, while not determinative of this issue, that Dr. Fulton also completed an OCF-19 Application for Determination of Catastrophic Impairment in July 2021 based on the applicant’s psychological symptoms (under Criteria 8) compounds the evidence in support of the applicant’s position. The evidence on which TD relies, being the s. 44 reports, were completed nearly four years ago and, when held up against the other medical evidence, did not appreciate or perhaps downplayed the impact that the applicant’s psychological symptoms would have on her ability to engage in employment.
16I note that while TD raised causation issues, it paid IRBs for the post-104-week period, so I find the timing of this defence to be curious. The evidence offered by TD is also somewhat dated compared to the more recent evidence provided by the applicant, as the s. 44 reports were all conducted in early 2018. While I understand the reports were conducted at the 104-week mark, the query over causation and the symptom magnification issues raised in those reports is trumped, in my view, by the applicant’s ongoing struggles well into 2021. This calls into question the basis for the denial over three years ago. For completeness, TD’s surveillance evidence capturing the applicant attending at a craft store in sweatpants is not particularly damning evidence that she can engage in employment. Indeed, I agree that the footage of the applicant completing these mundane tasks is consistent with the applicant’s reports that she can drive short distances in mild weather. While this footage may be evidence that the applicant’s physical symptoms do not prevent her from engaging in activity or employment, the footage does not capture the mental component of her impairment, which I find is the most prevalent.
17The period in dispute is from January 24, 2018 to date and ongoing. On the evidence, I am satisfied that at the time of TD’s denial, the applicant still met the test under s. 6 for entitlement to post-104-week IRBs. It appears that she has since graduated from her program (with the assistance noted) but has since been unsuccessful in engaging in at least two job offers in her field due to her anxiety over having to attend or the accommodations she required. There is no evidence before me that she is currently employed or that her situation has changed. Accordingly, I find that the applicant has met her burden to prove, on a balance of probabilities, that she sustained 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 from January 24, 2018 to date.
Quantum of IRB
18TD also raised the issue of the quantum of the IRB, seemingly arguing for the first time that the OCF-2 was completed by the applicant’s employer incorrectly, resulting in a $12,915.03 overpayment that it accepts it can no longer claim entitlement to, as more than 12 months have elapsed. Instead, it submits that the applicant should have been owed the lesser amount of $107.25 per week during this period rather than the $211.75 it paid. It submits that calculation error stemmed from the error on the OCF-2, where the applicant’s employer listed her previous four bi-weekly payments (being eight weeks of employment) as her amount earned during the previous four weeks.
19As I understand it, the applicant does not necessarily disagree with TD’s position, arguing instead that she believes the IRB amount in dispute remains $211.75 per week because TD failed to provide “reasonable documentation including an accounting report” or raise the IRB calculation as a preliminary issue. It is the applicant’s burden to prove entitlement and quantum.
20While I find the applicant has met her burden on entitlement, she has not met her burden on quantum. Indeed, she does not dispute the calculation offered by TD, but offers a procedural argument. Determining the quantum of an IRB is, for the most part, an objective exercise. In most cases where an applicant’s pre-accident income is not complex, an accounting report is not required. A preliminary issue is also not required to address quantum, as the applicant submits. Here, also, TD is correct that it cannot request repayment under s. 52, as its last IRB payment for which repayment would be applicable was well-beyond the 12-month window provided by the Schedule. The applicant does not owe any IRB repayments.
21However, having determined that she is entitled to an IRB for the period in dispute, it is necessary to ensure that the quantum is accurate. TD’s payments were based on an OCF-2 from a chain restaurant—the OCF-2 and the applicant’s payroll summary are before me. On review, I agree it appears that the OCF-2 was completed in error. The applicant earned a total of $612.87 in the four weeks pre-accident, or $153.22 per week, which is the applicable period. IRB payments were based on an incorrect bi-weekly average of $302.50 per week, which was seemingly based on the eight-week employment period completed in the OCF-2, and on which TD initially based its calculation. Therefore, where TD is entitled to a 70% deduction, it follows that the correct quantum of the IRB for the period in dispute is $107.25 per week, being 70% of the applicant’s $153.22 four-week pre-accident average. As benefits are overdue, it follows that interest is payable on this amount under s. 51.
ORDER
22The applicant has demonstrated entitlement to an IRB in the amount of $107.25 per week for the period in dispute, plus interest on overdue amounts.
Released: January 5, 2022
__________________________
Jesse A. Boyce
Vice-Chair
Footnotes
- O. Reg. 34/10, as amended.