Licence Appeal Tribunal File Number: 20-004436/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:
Reggie Remisiar
Applicant
and
Allstate Insurance
Respondent
DECISION
VICE-CHAIR:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Reggie Remisiar, Applicant
David S. Wilson, Counsel
For the Respondent:
Munir Datoo, Claims Representative
Ian D. Kirby, Counsel
Tamil Interpreter
Kandiah Pathmanathan
Court Reporter:
Guido Riccioni
HEARD by Videoconference:
July 5, 6, and 7, 2021
OVERVIEW
1The applicant, Reggie Remisiar, was involved in an automobile accident on May 14, 2018. He sought and was denied various benefits from the respondent, Allstate Insurance (“Allstate”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') O. Reg 34/10. By the time of the hearing, only the denial of his entitlement to an income replacement benefit (“IRB”) remained in dispute. Mr. Remisiar asserts that Allstate has unreasonably withheld or delayed payment of the IRB, so he is also seeking an award and interest at the rate set out in s. 10 of Regulation 664, R.R.O 1990.
2The Schedule requires Mr. Remisiar to prove that, as a result of the accident, he suffered an impairment that makes him substantially unable to perform the essential tasks of his pre-accident employment, [Schedule s. 6]. This may be referred to as the substantial inability test. Because the accident occurred just after Mr. Remisiar’s 64th birthday, on the later of his 65th birthday or the second anniversary of the day he began receiving the IRB, the amount to which he is entitled is reduced to one fiftieth of the amount of entitlement times the number of years he was paid an IRB, in this case 2 years [Schedule s. 8]. The amount, $29.62 per week, would then be payable for life.
3There is no dispute that Mr. Remisiar was working at the time of the accident and the amount of IRB payable to him would be $740.38 per week because he had purchased optional benefits. The foci of the hearing are whether Mr. Remisiar met the substantial inability test, and, if he did, when should it have been apparent to Allstate that he did so. Mr. Remisiar submits that the relevant date is December 11, 2019, the date Allstate terminated payment of the IRB.
4For the reasons that follow, I find that Mr. Remisiar has not satisfied his onus to prove, on a balance of probabilities, that he has a substantial inability to perform the essential task of his pre-accident employment.
5I do not find that Allstate unreasonably withheld or delayed the IRB payments, so no award under O. Reg 664 is payable.
6Mr. Remisiar is not entitled to interest.
ISSUES
7The issues to be decided in the appeal are:
a. Is the Mr. Remisiar entitled to an income replacement benefit in the amount of $740.38 per week from December 11, 2019 to date and ongoing?
b. Is Allstate liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
c. Is Mr. Remisiar entitled to interest on any overdue payment of benefits?
LAW
8Entitlement to an income replacement benefit in this case is set out in s. 5(2) of the Schedule. For the first 104 weeks following the accident, the test for entitlement is that the accident caused an impairment that as a result of and within 104 weeks after the accident, caused Mr. Remisiar to suffer a substantial inability to perform the essential tasks of his employment.
9The Schedule then, asks me to look at the impairment suffered by Mr. Remisiar. The use of the word “impairment” means the Schedule requires me to look beyond any accident-related injuries to the manner in which those injuries caused a loss or abnormality of a psychological, physiological or anatomical structure or function. The focus of this proceeding was on loss of function.
10The Schedule also asks me to identify the essential tasks of Mr. Remisiar’s employment and determine if the loss of function renders him substantially unable to perform those tasks.
EMPLOYMENT HISTORY
11Mr. Remisiar came to Canada from his native Sri Lanka in 1983. He lived initially in Montreal where he worked at two jobs. His first job was in the textile industry dyeing fabrics. It involved heavy lifting. After two years he moved to a Volkswagen dealership where his job involved washing and polishing cars and getting new cars ready for customer pick-up. He did not identify heavy lifting as a particular job activity but stated that he was bending the whole day. He ultimately decided to leave Montreal in 1989 and moved to the Greater Toronto Area (GTA).
12His first job in the GTA was with National Utility Service (NUS). He was initially a filing and mail clerk and then a billing clerk. He identified physical aspects of that employment, such as pulling files and presenting to managers. Bending was an aspect of the job. In 2002, NUS computerized, eliminating many aspects of his employment. Being computer illiterate, Mr. Remisiar left his employment with NUS. In and around that time, Mr. Remisiar’s wife opened a grocery store under the name of Priyas to serve that needs of the south Asian community. His brother also opened a grocery store under the same name.
13Mr. Remisiar and his wife operated the grocery store for 15 years. His duties included being at the store whenever it was open, stocking shelves and taking things off the shelf, mopping the 4000 square feet of floor every day, garbage removal, including empty boxes. Again, the job involved a lot of bending. He worked seven days a week for the whole 15 years with no time off except for rare occasions when his wife would cover for him. It was his evidence that the store closed in June 2017.
14Five months before the store closed, Mr. Remisiar took a job as a warehouse manager at an Indian wholesale delivery warehouse. He managed three employees and between the four of them they filled skids for shipping to customers. He described lifting heavy boxes, up to 50 pounds. They could contain canned goods, bags of lentils (dal), bags of rice and bags of spices. He would be involved in lifting heavy boxes for three to four hours per day.
15Under questioning about his job description as a warehouse manager, it was pointed out to Mr. Remisiar that the description is of a largely sedentary, light duty position. As a warehouse manager, he was responsible for assigning work, inventory control and other management duties. His answer was that he was not the kind of manager to sit and watch others work. He would help his team to fill orders to get them shipped in a timely manner. He believed in being a role model.
16In summing up his work history, Mr. Remisiar stated that there has never been a time in his work life that he was unable to do the physical part of the job. His evidence supports that statement. For approximately 16 years pre-accident he had been involved in retail and wholesale grocery sales.
MEDICAL eVIDENCE
17This matter can be completely resolved by a review of the medical evidence.
Pre-Accident Medical Condition
18Mr. Remisiar had a complex pre-accident history including hypothyroidism, cholesterol issues, evidence of a myocardial infarction, pelvic pain and diverticulitis. Of particular note, it is perhaps not surprising that after a life of heavy lifting, Mr. Remisiar suffered from a range of degenerative back conditions. While the best evidence for his pre-existing back issues are from post-accident medical imaging studies, the existence of pre-existing back issues is not in dispute. He had, among other things:
a. Bony hardening of the spinal ligaments (diffuse idiopathic skeletal hyperostosis or DISH) of the middle thoracic spine
b. Degenerative disc disease (DDD) of the cervical spine, moderate at C3-4-5 and mild at C5-6
c. Posterior lipping at C4-5-6 that might cause spinal stenosis (narrowing of the central canal and/or nerve pathways).
d. DDD throughout the lumbar spine but most prominent at L4-5-S1
e. Slight left scoliosis in the lumbar spine
f. Osteoarthritis in the lower facets and SI joints
g. Spinal stenosis at L4-5 and L5-S1 possibly impinging on right S1 nerve root
h. Diffuse annular bulge and marked facet disease resulting in high-grade canal stenosis compromising the L5 nerve roots
Post-Accident Medical Condition
19The major post-accident change alleged by Mr. Remisiar is that his back issues became symptomatic. The accident itself was relatively minor. Mr. Remisiar was blinded by a low morning sun on his windshield. He struck at low speed and broke a wooden lifting barrier controlling access to a roadway at Fairview Mall. He swerved left and right and glanced against concrete barriers at each side of the roadway causing scraping damage to his front wheels and the paint on the fenders. His initial reaction was nervousness.
20Mr. Remisiar was scheduled to be at work that day, but he did not go. Because he was feeling nervous from this unexpected event, he felt he was not emotionally fit to work. He spent the day at home lying still and doing nothing for 3 to 4 hours. He then ate and went to doctor because of increasing pain. The pain was mainly in his back, both shoulders and neck. Mr. Remisiar’s family doctor, Dr. Kirubaharan, prescribed painkillers, particularly Tylenol 2.
21Over the next several weeks, Mr. Remisiar testified to suffering increasing pain in his lower back and left leg. He particularly identified his left leg and when contemporaneous medical notes were pointed out to him indicating that his documented complaints were with respect to his right leg, he stated that he had pain in both legs, but mainly in the left. The right leg pain ultimately resolved. He described the pain as going right down to his toes. He can no longer walk for more than 10 minutes and even that causes pain. At home, he gets relief from lying flat on the floor and at night he sleeps on a foam pad on the floor.
22The medical evidence suggests that Mr. Remisiar was in need of pain control before the accident. He reported getting an occasional sore back but dealt with it with rest and over the counter medications like Tylenol and Advil. With rest and Tylenol/Advil, he would be ready for work the next day. The medical reports from his family physician, Dr. Kirubaharan, show pre-accident treatment with prescribed painkillers. Where Dr. Kirubaharan refers to the accident in the months following it, he talks about the accident aggravating pre-existing symptoms, not causing an asymptomatic condition to be become symptomatic.
23Dr. Kirubaharan’s notes show:
a. January 5, 2018, following a visit to Markham Stouffville Hospital for chest pains, internal medicine specialist Dr. Ganraj Kumar reports of Mr. Remisiar: “He [Mr. Remisiar] and his brother operate a grocery store seven days a week 12 hour's a day. However, he does attend a gym 3 to 4 days a week for an hour where he does some weight lifting and 30 mins on the treadmill. He has continued to do so without any further chest pains.”
b. On Feb 25, 2018, 3 months pre-accident, Dr. Kirubaharan prescribed “Advil Extra Strength Liqui-Gels 400mg Capsule 1 Oral TID” apparently for chest pain
c. May 5, 2018, 9 days pre-accident, another Advil Extra Strength prescription for pelvic pain
d. On the day of the accident, May 14, 2018, Robaxacet Extra Strength 400mg/500mg Tablet 2 Tablet Oral BID
e. 2 days later, May 16, 2018, Tylenol #2 1 BID PRN
f. May 27, 2018, Robaxacet Extra Strength 400mg/500mg Tablet 2 Tablet Oral BID
g. June 10, 2018 note: “Chronic lower back pain x years, now worse for 3 days, aggravated by MVA inj. May 2018. Radiation to rt leg, numbness, tingling. Working Diagnosis – DDD” [emphasis added].
h. June 22, 2018 note: “c/o low back pain x 3 weeks 8/10 radiating down right leg, which have been aggravated after MVA” [emphasis added]. As far as my review of Dr. Kirubaharan’s records goes, this is the last substantive mention of the motor vehicle accident. There is one more mention of a “history” of a motor vehicle accident in a July 2019 note, but it does not appear to be tied to any condition. My review was hampered by the almost illegible nature of the doctor’s handwriting in most of his notes.
i. July 9, 2018 note: “dull achy pain in the lower back, non radiation. Working diagnosis – spinal stenosis”
j. July 27, 2018 referral report from surgeon states that the surgeon, Dr. Nallapaneni, was advised by Mr. Remisiar that “He has more pain when he does push ups and lifts his legs up straight. There is no pain when he lifts heavy weights.” He further reports: “The patient appears to be in no distress.”
k. On August 31, 2018 there is a note from Dr. Kirubaharan investigating spinal stenosis and right leg issues. There is also a mention of the left leg for the first time in the context of the stenosis. There is no mention of the accident. The diagnosis is spinal stenosis and degenerative narrowing.
24Mr. Remisiar consulted with Dr. Kumar again in and around February 1, 2019. Dr. Kumar noted: “The patient has had a good year. He remains active. Apart from working at his convenient [sic] store, six to seven hours a day several days a week, he attends a gym four days a week where he spends an hour. 30 minutes on an exercise-bicycle and 30 minutes on resistant training.”
25Mr. Remisiar insists that he did not tell Dr. Kumar that he was active and working at a “convenient store” in February 2019. He insists that Dr. Kumar took this information from his earlier report.
26I find Mr. Remisiar’s explanation unlikely for several reasons. Dr. Kumar, as a medical professional, is trained to take accurate histories from his patients as they become an integral part in the diagnostic process. The purpose of the February 1, 2019 visit was to follow up on the January 2018 visit and the focus was on Mr. Remisiar’s health over the past 12 months. To believe that Dr. Kumar ignored Mr. Remisiar’s health during that period and simply regurgitated what he was told earlier beggars’ belief. Finally, the details of the report differ significantly from the earlier report. In the earlier report, Mr. Remisiar was working 12 hours a day with his brother. In the intervening year, he has dropped to “six or seven hours a day” at his “convenient store.”
27The versions are not identical. I also find that nothing turns on Mr. Remisiar’s point that the doctor is mistaken because he referred to the grocery store as a convenience store. I find nothing turns on this nomenclature. While Mr. Remisiar’s evidence is that his wife’s Priyas store closed in June 2017, his brother’s stores continued to operate, as affirmed by Mr. Remisiar in his evidence and in his January 2018, history given to Dr. Kumar. It appears that, even after starting fulltime in his warehouse job, he still helped his brother run their grocery store.
28On a review of the above evidence, it appears that Mr. Remisiar was not in constant debilitating pain from the date of the accident. Two months post-accident, Dr. Nallapaneni noted that, while push-ups were painful, Mr. Remisiar had no problem lifting heavy weights. Since his inability to lift weights is central to his claim for an IRB, this is telling evidence. That evidence is supported by the reports given both pre-accident and post-accident to Dr. Kumar of continued work in the grocery store Mr. Remisiar owned with his brother. The left leg pain did not develop for 3 months after the accident but did not prevent him from working with his brother as late as February 1, 2019.
29If I am to sum up the evidence, it appears that any injuries Mr. Remisiar suffered in the accident had resolved by July 2018, that is, within a couple of months. Thereafter, through the present day, his degenerative back condition progressed to the point of giving him the pain of which he now complains. In other words, his present impairment is not accident related. In coming to this conclusion, I am aware of the evidence of both Dr. Kirwin, the physiatrist to whom Mr. Remisiar was referred by his family doctor, and the competing occupation therapy reports.
30My difficulty with Dr. Kirwin’s and the OT, Mr. Balaban’s, involvement is their late arrival on the scene. This late arrival results in an inability to assess Mr. Remisiar close to the time of the accident. Their assessment was not completed until over a year later leaving them dependent on Mr. Remisiar’s self-reporting, which I have found is suspect. For instance, Dr. Kirwin reports that “By the next day he had low back pain and cervical pain also. Within a week he had a numbing pain from the left hip and low back area down left leg to the entire left foot.” As stated above, the first report of left leg pain is not until 3 months post-accident. Of note is that Dr. Kirwin found Mr. Remisiar “appeared to be in no apparent distress at rest” at each visit. Dr. Kirwin also noted a stable gait and normal spinal alignment.
31In a very thorough and detailed report, Mr. Balaban concludes that Mr. Remisiar does not have the requisite strength and endurance to perform the tasks of a warehouse manager. This finding dovetails almost exactly with the opinion expressed by Dr. Khan, Allstate’s expert physiatrist, Dr. Khan examined Mr. Remisiar on February 28, 2019. He asked for further information and when that was provided, he issued a final report on December 3, 2019. He also testified at the hearing. His evidence at the hearing was that he found Mr. Remisiar to be deconditioned. He did not specifically refer to Mr. Balaban’s report in his reports but stated that he did read it and found it came to the same conclusion he did, Mr. Remisiar is deconditioned and would benefit from a work-hardening program.
32When asked in cross-examination why he did not recommend a work-hardening program, Dr. Khan reverted to the questions he was asked to opine upon: were Mr. Remisiar’s injuries minor and was he entitled to an IRB. I note that there is no issue for a denied work-hardening program before me, so the issue is peripheral to the question of whether Mr. Remisiar is entitled to an IRB.
CONCLUSION
33I find that the injuries Mr. Remisiar sustained in the May 14, 2018 accident did not substantially impair him from performing the essential tasks of his employment. In July 2018, the evidence establishes that he was capable of lifting heavy weights. Dr. Kumar reports being told by Mr. Remisiar that he did lift heavy weights during that period while working in his “convenient store.” Mr. Balaban reports that Mr. Remisiar was capable of prolonged sitting, a fact supported by Dr. Kirwin. Given that the two major functions Mr. Remisiar testified were the key elements of his job, the ability to lift up to 50 lbs and to sit in the office, he could substantially perform his essential duties of his pre-accident employment.
34I find Mr. Remisiar had recovered by July 2018 from any impairments sustained in the accident. It is doubtful whether those impairments rendered him incapable of work, but any subsequent reduction in his abilities may be laid at the door of his degenerative condition.
O. Reg 664 Award
35Given my finding that Mr. Remisiar is not entitled to an IRB, there is no basis for an award under O. Reg 664.
ORDER
36Mr. Remisiar’s claim for the following relief is dismissed:
a. an income replacement benefit in the amount of $740.38 per week from December 11, 2019 to date and ongoing.
b. an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
c. interest on any overdue payment of benefits.
Released: January 17, 2022
D. Gregory Flude, Vice-Chair