Licence Appeal Tribunal File Number: 20-010511/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:
Patrick Laferriere
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
PANEL:
Brian Norris and Janet Rowsell
APPEARANCES:
For the Applicant:
Patrick Laferriere, Applicant
Jeffrey J Moorley, Counsel
For the Respondent:
Ken Yip, Counsel
Observing:
Brett Todd, Vice-Chair
Neil Levine, Member
Michael Beauchesne, Member
Court Reporter:
Michelle Gordon
HEARD: By videoconference on July 4 -9, and 20, 2022
OVERVIEW
1Patrick Laferriere (“the Applicant”) was involved in an automobile accident on August 31, 2016, and sought benefits from Wawanesa Mutual Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Applicant initially received income replacement benefits (“IRBs”) from the Respondent, but the Respondent later denied the benefit more than 104 weeks after the accident. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute to be decided in this hearing are as follows:
i. Is the applicant entitled to receive IRBs in the amount of $400.00 per week for the period from January 18, 2019, to-date and ongoing?
ii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The panel finds that the Applicant is entitled to IRBs in the amount of $400.00 per week for the period from January 18, 2019, to-date and ongoing. Interest is payable pursuant to section 51 of the Schedule.
4No award is payable.
BACKGROUND AND INJURIES
5The Applicant was the driver of a sedan that was found in a ditch late at night on a remote highway in Northwestern Ontario. EMS found him laying at the side of the road at the scene of the accident, an estimated 15 minutes after it occurred. The airbags in the vehicle had deployed, had blood on them, and the Applicant had signs of a nosebleed. He was transported to hospital by ambulance and examined. The Applicant complained of the ambulance lights being too bright during transport to the hospital. At the hospital, he complained of headaches, photophobia, nausea, severe pain in his lower quadrant radiating down his leg, left side pain with an abrasion to his waist and down his side, and he vomited while in the hospital later that night. The Applicant was given morphine and referred for diagnostic imaging of the neck, chest and pelvis, which were negative. He was diagnosed with soft-tissue injuries as a result of a motor vehicle accident. Upon discharge, the Applicant was given documents regarding head injuries, a prescription for pain medication, and a note to refrain from work for a week.
6The Applicant has virtually no recollection of the accident. He was initially unable to recall the event when asked by hospital staff, but later recalled that the conditions were foggy, and that he saw a moose which he attempted to avoid. He also remembers seeing lights in the ambulance, but the Applicant recalls few other details between the accident and when he was assessed later at the hospital. The Applicant was later diagnosed with having suffered a mild traumatic brain injury as a result of the accident.
7The Applicant now suffers from a posterior diffuse disc bulge likely contacting the L5 and S1 nerve roots as a result of the accident (“right lumbar radiculopathy”). As a result, his right leg and foot consistently become numb following prolonged postures and he walks with a limp and drags his right foot during his stride. The Applicant has met with at least two specialists regarding the nerve issue and sequalae, but both concluded that surgical intervention is untenable because it carried too great a risk. Thus, the Applicant is left with a permanent physical impairment.
8Additionally, the Applicant has developed psychological and cognitive issues related primarily to his memory following the accident. These injuries continue to impair him.
9The Applicant attempted to return to work in December 2016, which lasted about two weeks. He testified that he found it difficult to keep up with his regular job duties due to his low back and right hip pain and associated numbness and tingling in his right leg and foot. He was laid off after two weeks – his employer stated that the layoff was as a result of the applicant failing to follow proper safety protocols on site. He has not re-employed since.
10The Respondent accepted the Applicant’s initial claim for IRBs and paid him the weekly benefit up to January 17, 2019. It stopped paying IRBs on the advice of insurer’s examination (“IE”) assessors, who determined that the Applicant no longer qualified for IRBs.
ANALYSIS
Income Replacement Benefits (“IRBs”)
11The panel finds on a balance of probabilities that the Applicant is entitled to IRBs due to his physical, cognitive, and psychological injuries as a result of the accident.
12Pursuant to section 6(2)(b) of the Schedule, the Applicant may be entitled to IRBs if he can prove on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience as a result of accident-related impairments (“the post-104 test”).
13As outlined in 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT), reasonably suitable employment means employment “in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity.” The work should also be comparable in terms of status and wages.
The Applicant’s education, training, and experience is predominated by physical labour
14The Applicant has limited educational experience and few transferable employment skills.
15The Applicant obtained a high school diploma despite being diagnosed with a language-based learning disability. There, he had an individual education plan and was provided additional time and open book examinations. The Applicant apprenticed with a shoemaker following high school, from 2008 to 2010. However, he never achieved any formal accreditation during that tenure.
16The Applicant’s employment history is predominated by general labour roles, with the exception of his work as a shoemaker. He was working full-time as a janitor and kitchen helper for a catering company, on-site at a remote mine, at the time of the accident. His duties included: mopping, cleaning bathrooms, restocking supplies and garbage disposal. The applicant described in his testimony that he would take on kitchen responsibilities such as assisting with meal preparation, serving meals to employees, loading and unloading a dishwasher pit, sorting groceries and taking inventory of pantry items. The physical work performed as a janitor and kitchen helper for the catering company included tasks involving sitting, standing, bending, reaching, twisting, stretching, crouching, squatting, pushing, pulling, lifting, and carrying.
17Prior to working at the mine site, the Applicant worked for two scrap metal companies from 2010 to 2014. His employment there involved heavy lifting, carrying, bending, squatting, standing and walking.
18The Applicant operated his own business as a shoemaker for about two-and-a-half years prior to working at the metal scrap yards. The Applicant reported that he operated a cash register, conducted general leather repair, and fixed goods such as zippers, hockey gloves, and curling shoes. He testified that he did not do the paperwork related to the business and relied on a family friend for help with it. Eventually, he closed the business following a bad relationship and he moved back in with his father. Though, the Panel acknowledges that the Applicant reported to assessors that he closed the business due to poor market conditions rather than citing the personal reason described at the hearing. The Applicant continues to possess a sewing machine, however, he stated that he has difficulty operating the motor pedal due to his right leg numbness and is unable to make personal projects like a drumstick holder. In any event, the fact that the Applicant discontinued the business prior to the accident and that he suffers from his current impairments demonstrates that it is not a viable course of employment for him. Further, as will be addressed in greater detail below, the Applicant is poorly suited for employment as a shoe repairer due to his physical, cognitive, and psychological injuries.
19The Applicant’s education, experience, and training suggest that he is best suited for employment involving physical labour. Yet, this is not tenable because of his physical impairments. As noted, the Applicant continues to suffer from a posterior diffuse disc bulge with associated right leg radiculopathy. This injury causes him to walk with a pronounced limp and drag his right foot. It further prevents him from engaging in prolonged postures and impairs his ability to walk for any extended period of time. Such an injury is simply not compatible with the physical labour that the Applicant was accustomed to prior to the accident.
The Applicant’s physical injuries impair him from engaging in physical labour
20The Applicant’s right lumbar radiculopathy impedes his ability to engage in physical labour. The Applicant walks with a pronounced limp and experiences intermittent numbness in his right leg and foot due to right lumbar radiculopathy. As a result, he suffers from low back and hip pain and is prone to weakness and numbness in the right leg and foot if he sits or stands for more than 30 minutes.
21The Applicant’s right lumbar radiculopathy requires him to restrict his lifting. Physiotherapist C. Winn treated the Applicant following the accident and, in the December 17, 2018, discharge note, encourages the Applicant to increase his physical activity and that a return to gainful employment is best for his rehabilitation. The letter states that the Applicant is able to lift 35 pounds on an occasional basis, and that he has a standing tolerance of about 30 minutes, before requiring a break to reduce the strain on his leg. While the Applicant’s occasional lifting tolerance is considered to be at a light to medium level for the purpose of occupational activity, he is unable to engage in such activities during a full workday. This is not conducive to physical labour employment, particularly when coupled with his standing tolerance of 30 minutes.
22The assessment report by S. Kara, occupational therapist, dated August 25, 2020, concluded that the Applicant is limited due to low back pain and right leg and foot numbness. Occupational therapist Kara testified that the Applicant presented as genuine, and no effort concerns were present during testing. In her report, occupational therapist Kara stated that the Applicant was unable to maintain a seated position for a sustained period of time and complained of symptom exacerbation with bending, crouching, reaching, and twisting. The Applicant took multiple breaks during testing and testing was stopped prior to the scheduled completion time, due to fatigue.
23The report by kinesiologist K. Schulz, dated October 17, 2018, is consistent with the occupational therapy report dated August 25, 2020. Kinesiologist Schulz administered functional tests and concluded that the Applicant could perform at the sedentary to light strength level. Kinesiologist Schulz opined that the Applicant put forth a consistent effort and observed him sitting for 25-30 minutes and observed him standing for about 20 minutes before needing a break.
24The vocational evaluation and transferable skills report by D. Zervas, certified vocational evaluation specialist, dated October 17, 2018, suggests that the Applicant is unable to engage in physical labour. Mr. Zervas noted that the Applicant had a sitting tolerance of 25 minutes and required standing breaks between tasks. The Respondent commissioned this report whereby Mr. Zervas assessed the Applicant’s vocational skills and determined suitable employment. Remarkably, the occupations suggested by Mr. Zervas are predominantly sedentary and involve no heavy labour. Such roles include customer support representative, receptionist, food services counter attendant, cashier, and small product packager.
25The Panel finds the Applicant is restricted from engaging in physical labour due to his right lumbar radiculopathy and sequalae.
The Applicant’s cognitive and psychological injuries impair him from engaging in suitable employment
26The Applicant sustained a mild traumatic brain injury as a result of the accident, which impairs his cognition.
27The Panel agrees with the opinion of occupational therapist Kara, who concluded that the Applicant lacked adequate cognitive skills. For example, the Applicant was unable to manage his time during testing. He was given 25 minutes for lunch but took 45 minutes and was unaware that his return from lunch was untimely. In the same report, it was noted that the Applicant required the assessor to repeat certain task instructions several times and that his attention to detail, coupled with poor decision making and problem-solving skills, resulted in inaccuracies, errors and flawed output.
28Notably, occupational therapist Kara assessed the Applicant’s ability to manage a calendar and observed him commit multiple errors. For example, the Applicant was tasked with inputting data and managing appointments in a calendar, akin to a secretary, and erred on nine of the 16 appointments he was tasked with scheduling. Specifically, the Applicant was asked to book a 90-minute appointment but scheduled it for 60 minutes. Similarly, he was asked to avoid scheduling appointments on a Wednesday but did so anyway. Occupational therapist Kara noted that the Applicant terminated several tests during the assessment due to fatigue, despite having the option to take breaks.
29The Panel also agrees with the opinion of Dr. Hastings, who concluded, from a cognitive perspective, that the Applicant is not competitively employable. In his August 25, 2020 report, Dr. Hastings contemplated whether the Applicant could return to work as a shoemaker. Following his assessment and a review of the occupational therapy report by Ms. Kara, Dr. Hastings concluded that the Applicant’s cognitive disfunction would likely require supervision and accommodation with frequent breaks, rendering the applicant not competitively employable.
30The Panel finds the opinion of occupational therapist Lebron to be persuasive. Ms. Lebron testified in relation to an attendant care assessment conducted with the Applicant and based on her experience as his treating occupational therapist. She spoke about her observations regarding the Applicant’s cognition and noted that the Applicant has concentration issues, requires queuing to stay focused on tasks, is easily distracted, and suffers from memory loss. She testified that the Applicant frequently forgets names or appointments and that he underreports and lacks insight into the extent of his cognitive impairments.
31The Applicant’s cognitive deficits are present in the assessment report by Dr. M. A. Mountain, neuropsychologist. The report dated June 13, 2019, noted that the Applicant was pleasant and cooperative and observed to be trying his best during testing. However, fatigue was reported throughout the day and the Applicant’s attention and concentration problems worsened as the day went on. On testing, the Applicant scored in the impaired range for general intellectual ability and reaction time and speed of processing. He scored in the low-average range relating to executive function. Overall, Dr. Mountain found that the Applicant’s cognitive testing results are consistent with the observations of Dr. St. Pierre, psychologist, and Mr. Zervas. Dr. Mountain diagnosed the Applicant with chronic pain (Somatic Symptom Disorder) with a poor prognosis due to the Applicant’s pre-existing language and cognitive challenges.
32The Zervas report dated October 29, 2018, overestimates the Applicant’s cognitive ability. Mr. Zervas noted that the Applicant scored in the low to low-average range on cognitive abilities but implied that the applicant was not providing a full effort because his prior work experience required, at minimum, average levels of cognitive academic ability. Mr. Zervas appears to be the only assessor who concluded that the Applicant was not performing tests with a full effort. To the Panel, this suggests that Mr. Zervas overestimates the Applicant’s cognitive function and failed to consider the Applicant’s cognitive deficits as a result of the minor traumatic brain injury he suffered in the accident. In fact, Mr. Zervas testified that he does not consider the Applicant’s cognitive issues as barriers to employment because of his work history and education, completely ignoring the fact that he sustained a mild traumatic brain injury and associated cognitive and memory issues as a result of the accident. Furthermore, Mr. Zervas conducted vocational testing and concluded that the Applicant did not demonstrate adequate cognitive academic scores and his low-test results suggest that he could benefit from post-secondary level training.
33The Panel finds that the Applicant’s cognitive function decreases as he experiences fatigue. The assessments by Mr. Zervas and Ms. Kara both demonstrate that the Applicant is subject to fatigue during testing. Test results during assessments demonstrate diminished productivity and motivation to persist with the required tasks.
The Applicant has limited education and training, and lives in Northern Ontario, which reduces his potential job market
34The labour market analysis report and testimony by certified vocational evaluation specialist Zervas demonstrates that the Applicant faces a depressed job market which further reduces his ability to engage in suitable employment or self employment. The October 17, 2018, report by Mr. Zervas suggests that the Applicant is suitable for several roles in the job market. However, Mr. Zervas was unable to identify any openings for the suggested roles in Northern Ontario.
35The Panel acknowledges that the Applicant’s ability to engage in suitable employment is independent of the labour market. However, the labour market analysis demonstrates the difficulty the Applicant faces because of his physical, cognitive, and psychological injuries. Here, a certified vocational evaluation specialist was unable to find suitable job openings for the Applicant, despite his efforts and without consideration as to whether a potential new employer would accommodate the Applicant.
The surveillance documents are unpersuasive
36Lastly, the Panel finds that the surveillance reports and associated documents do not upset the Applicant’s credibility and are not indicative of an ability to complete the essential tasks of employment.
37The Respondent submits that the surveillance reports demonstrate that the Applicant lacks credibility and is more functional than what is reported to various healthcare providers. The Respondent suggests that the video gameplay in the surveillance reports indicates that the Applicant’s cognition is better than reported and that he is not impaired by any cognitive deficits.
38The Respondent presented the surveillance evidence to the Applicant during testimony. The video surveillance depicted in the reports demonstrates that the Applicant walks with a noticeable and consistent limp. This evidence is consistent with the Applicant’s presentation during assessments.
39The surveillance reports depicting the Applicant’s video gameplay are uncompelling evidence of the Applicant’s functionality. As counsel for the Applicant noted in closing submissions, there are over 500 videos online of the Applicant engaging in video gameplay Yet, there is no video demonstrating the Applicant’s physical movements during the gameplay. Instead, the videos shown are strictly of the video game screen with audio provided by the Applicant, overlayed on the video, which in the Panel’s view, does not demonstrate functionality any different from what was observed and reported by the various healthcare practitioners who have been involved in the Applicant’s care.
40Dr. Hastings and occupational therapists Kara and Lebron were all presented with evidence of the Applicant’s video gameplay and their opinions remained the same. Dr. Hastings testified that he was aware of the Applicant’s video gameplay and noted that the cognition required to play video games is different than day-to-day memory and cognitive function. Dr. Hastings advised that game systems are common in the brain injury unit where he works; in addition, Dr. Hastings stated that he does not believe it is a significant indicator for the Applicant’s cognitive abilities. Ms. Kara was presented with evidence that the Applicant engaged in video gameplay for over six hours overnight. Her opinions on the Applicant’s limitations remained unchanged. She testified that she was aware that the Applicant engaged in a five-hour drive to the assessment and engaged in testing for several hours the following day. She noted that the Applicant can change positions during video gameplay and the evidence was consistent with her observations. Ms. Lebron testified that she is aware that the Applicant’s video gameplay is a dominant leisure activity and she felt that observing the Applicant play video games would not change her opinion on his physical or cognitive ability.
41The Applicant’s video gameplay does not constitute a transferable skill or value in the labour market. None of the parties to this hearing are experts in video gameplay or the skill required to achieve the levels which were depicted by the Applicant in the surveillance materials. The Applicant’s online streaming content includes a low number of viewers and there is no evidence that the Applicant was able to earn any income from his online streaming.
42Most importantly, the consequences for failure in a videogame are drastically different than consequences in a work-like setting. As noted by the Applicant, a failure in a videogame has no lasting consequences to the Applicant or others. Similarly, errors or omissions in video gameplay have no accompanying occupational health or safety risks. Also, video gameplay can be started and stopped at any time and can be done in a comfortable position, changing positions as needed. Whereas, in a work-like setting, there are consequences for failure to execute a task properly, such as injury or termination from employment. In addition, parameters of employment are dictated by the employer.
43The evidence depicts the Applicant staying up all night to play games and there is potential it impacted his ability to keep appointments. The Panel’s takeaway from the video gameplay surveillance is that it demonstrates a lack of time management and a focus on leisure, despite being detrimental to the Applicant’s well-being. The real-world impact of this behaviour would be detrimental to the Applicant and his ability to remain employed, in the unlikely event that he is able to find employment.
44The Applicant suffers from right lumbar radiculopathy with associated sequalae, a mild traumatic brain injury, and somatic symptom disorder as a result of the accident. Together, these injuries preclude him from engaging in employment that is suitable based on his education, experience, and training. The video gameplay surveillance fails to detract from these findings. As a result, the Applicant is entitled to IRBs as claimed, plus interest pursuant to section 51 of the Schedule.
AWARD
45The Panel finds no award payable.
46An award may be payable pursuant to Regulation 664 if it is determined that the Respondent unreasonably withheld or delayed the payment of benefits.
47The Respondent’s refusal to pay the benefit is not unreasonable. The refusal was rooted in the opinions contained in the IEs and the surveillance evidence. While the Respondent appears to have relied too heavily on the extensive surveillance evidence depicting the Applicant’s video gameplay, it is consistent with the opinion of its primary witness, Mr. Zervas. The Respondent recognized that the Applicant demonstrated some limited degree of cognitive ability based on surveillance but failed to draw a nexus to reasonably suitable employment in a competitive, real-world setting. Having found the Respondent’s behaviour to be not unreasonable, it follows that no award is payable.
ORDER
48The Applicant is entitled to IRBs for the period from January 18, 2019, to-date and ongoing, plus interest pursuant to section 51 of the Schedule. No award is payable.
Released: February 27, 2023
__________________________
Brian Norris Adjudicator
__________________________
Janet Rowsell Adjudicator