Mersaydy's Lacroix v. Intact Insurance Company, 2023 CanLII 1472

Citation: Lacroix v. Intact Insurance Company, 2023 ONLAT 20-012380/AABS

Licence Appeal Tribunal File Number: 20-012380/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:

Mersaydy's Lacroix

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Jennifer M Kelly, Counsel

For the Respondent: Ashtar Morad, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on February 9, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are before the Tribunal:

i. Is the applicant entitled to a weekly income replacement benefit (“IRB”) in the amount of $79.00, from April 8, 2019, to date and ongoing submitted February 9, 2017, and denied April 18, 2019?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

LAW

3Section 6(2)(b) of the Schedule states that an insurer is not required to pay an income replacement benefit 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 the insured is reasonably suited by education, training or experience.

4Section 3(7) of the Schedule states that a person suffers a complete inability to carry on a normal life if, as a result of an accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

5Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

6Section 57(2) of the Schedule states that an insured person who is entitled to a specified benefit, such as an income replacement benefit, shall obtain treatment and participate in such rehabilitation as is reasonable, available and necessary to permit the insured person to engage in employment or self-employment for a person entitled to an income replacement benefit or the shorted the period during which the benefit is payable.

ANALYSIS

Is the applicant entitled to an income replacement benefit?

7The applicant submitted an Application for Accident Benefits² and then submitted a Disability Certificate³ (“OCF-3”). The respondent paid the applicant a weekly IRB in the amount of $79.00 for the period of February 9, 2017, to May 8, 2019, when the respondent stopped the applicant’s IRB.

8The applicant submitted that as a result of her physical and psychological injuries caused by accident, she suffers a complete inability which continuously prevents her from engaging in employment or self-employment that she would otherwise be suited for by means of experience, training or education. As a result, she is entitled to an IRB of $79.00 per week for the period of April 8, 2019, to date and ongoing.

9In support of this position, the applicant directed my attention to the clinical notes⁴ and records of her family doctor, Dr. George Freundlich, from approximately 2 years and 5 months after her accident, which diagnosed the applicant with a grade-3 whiplash disorder (“WAD-III”) as a result of her accident.

10Dr. Freundlich also noted that the only employment the applicant was able to secure was waitressing due to the applicant’s childcare obligations, which exacerbated her chronic trapezius, sternomastoid myositis, and chronic spasms⁵. Dr. Freundlich noted that the applicant had been attending physiotherapy to address these impairments.

11The applicant also submitted that as a result of her accident, she suffers from lateral epicondylitis, also known as tennis elbow, as seen in her magnetic resonance imaging⁶ (“MRI”) from June 2018. The applicant also relied on an MRI from the same month⁷ which found she had disc bulges in her C4-5, C5-6 and C6-7 cervical spine.

12The applicant submitted that due to her neck and shoulder pain, she sought treatment⁸ from Dr. Marshall Zaitlen, neurologist, which she argues supports that her injuries are accident related. The applicant also relied on the clinical notes and records of Dr. Medhi Sadoughi, orthopedic surgeon, who opined that the applicant’s pain was myofascial⁹.

13The applicant also relied on the Integrated Psychological/Social Work Progress Report¹⁰ of Patricia Leonard, social worker, and Arden McGregor, psychologist. Ms. Leonard and Ms. McGregor noted that the applicant complained of overwhelming pain and tension in her neck, shoulder, and right arm while working. The applicant also reported self-esteem issues and feelings of helplessness, anxiety, and stress.

14Ms. Leonard and Ms. McGregor administered psychometric testing on the applicant, including her most recent Post-traumatic Stress Disorder Checklist (“PCL-5”) results which were below the threshold for a diagnosis of post-traumatic stress disorder (“PTSD”), the Patient Health Questionnaire 9 (“PHQ-9”) where the applicant’s scores have remained in the “moderate-severe” category, and the General Anxiety scale (“GAD 7”), where the applicant has presented anxiety symptoms in the higher end of the “moderate” range.

15Ms. Leonard and Ms. McGregor noted that the applicant’s depression and anxiety increased throughout October of 2019.

16The applicant also relied on the Interim Social Work Progress Update¹¹ of Ms. Leonard and Stephen White, psychologist, which noted that the applicant reported experiencing ongoing, deep, burning pains in her neck, shoulder and right elbow which continue to into her right hand and palm. The applicant described the pain as constant and daily, resulting in the applicant reporting feelings of being overwhelmed and drained. The applicant also reported feeling pain which forced her to rest for days after completing her activities of daily living (“ADLs”) such as housework and family chores¹².

17Ms. Leonard and Mr. White summarized that the applicant’s symptoms of PTSD have decreased, and her symptoms of generalized anxiety have increased and are in the severe range.

18The applicant also relied on the clinical notes and records of the Pre-Op clinic of Landy Minto Hospital¹³, which noted that the applicant reported experiencing chronic pain in her neck, arm, and back as a result of the accident. The clinical notes and records noted that the applicant reported being able to walk for approximately 2 blocks and unable to climb stairs without losing her breath.

19Based on the totality of the evidence, the applicant submitted that she has shown that she continues to suffer a complete inability to engage in employment she would otherwise be suited for by means of her experience, training, or education.

20The respondent disagreed that the applicant suffered a complete inability to engage in employment she would otherwise be suited for by means of her experience, training, or education, or that she was entitled to the disputed IRB.

21The respondent noted that prior to the accident, the applicant was working on a part-time, casual basis, with job duties including housekeeping tasks including changing and making beds, vacuuming, and cleaning¹⁴, and had been employed there for 2 months before the accident. The respondent submitted that the applicant had been on unpaid leave from this employment since February 2017¹⁵, before her accident.

22The respondent argued that after her accident, the applicant worked as a waitress from June 10, 2019, to August 21, 2019¹⁶, and therefore, did not suffer a substantial or complete inability.

23The respondent relied on medical imaging and its respective clinical notes and records of the applicant. The respondent submitted that the applicant underwent an x-ray of her lumbar spine¹⁷, which found nothing of significance.

24The respondent argued that the applicant was seen by her family doctor, Dr. Freundlinch, who ordered an MRI of the applicant’s right shoulder, which also revealed no remarkable findings¹⁸. The respondent also submitted that in 2017 and 2018, further diagnostic imaging of the applicant found no remarkable or objective findings¹⁹.

25With regard to the applicant’s alleged psychological injuries, the respondent relied on its Insurer’s Examination²⁰ (“IE”) conducted by Dr. Trevor Deck, psychologist, where the applicant reported being enrolled in full-time studies in the fall of 2018 and received excellent grades in all her courses²¹. Dr. Deck diagnosed the applicant with adjustment disorder with mixed disturbances of emotions and conduct, which the respondent submitted was congruent with the applicant’s pre-accident health. Dr. Deck found that the applicant did not suffer from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

26Dr. Deck also assessed the applicant’s vocational interest using the Wide Range Interest and Occupation Test – Second Edition (“WRIOT2”) and found a large range of jobs that would interest and be suitable for the applicant despite her injuries.

27The applicant noted that Dr. Deck’s IE found that the applicant did suffer a substantial inability due to her psychological injuries. The applicant also noted that Dr. Deck did not clarify that the applicant is attending her studies online, and therefore, able to participate if and when she feels well enough.

28The respondent also relied on the Vocational Evaluation and Transitional Skills Analysis²² of Allison Gould, vocational assessor and psychometrist, which found that the applicant was able to engage in any formal/information training or education program, and that she had transferable skills that could qualify her for related employment, including cashier, receptionist, call centre agent, telemarketer, and ticket agent and related clerk except airline, and that some of these jobs would increase the applicant’s hourly wage compared to what she earner before her accident.

29The applicant argued that the employment options the respondent has presented are not appropriate for the applicant due to the repetitive movement, standing and bending that prevent the applicant create barriers due to the applicant’s injuries.

30The applicant also argued that because she lives in Cochrane, Ontario, she has limited employment options in her area. In terms of the roles of call center agent and telemarketer, these are not jobs that are available; instead, the applicant submitted these jobs are only available in Timmins, which would require the applicant to commute up an hour and cannot do so due to her accident-related psychological injures.

31The respondent also relied on the IE²³ of Dr. James McKay, family medicine specialist, which found that from a musculoskeletal perspective, the applicant did not suffer a complete inability to engage in any employment/self-employment that she would otherwise be suited to by her education, training or experience.

32The respondent also relied on the Functional Abilities Evaluation²⁴ (“FAE”) of Dr. Robert Fera, chiropractor, which found that the applicant’s abilities were consistent with light and medium strength employment, on an occasional basis.

33The respondent also wished to address arguments related to section 57 of the Schedule related to the applicant’s obligation to participate in treatment that is reasonable, available and necessary to the applicant.

34The respondent noted that the applicant first reported anxiety and depression symptomology to Dr. Freundlich in March of 2017 and the doctor prescribed the applicant Effexor XR and referred the applicant to Dr. Raymond Tempier, psychiatrist²⁵. The respondent submitted that as there is no evidence that the applicant was seen by Dr. Tempier, and therefore the applicant has failed to comply with section 57(2) of the Schedule and therefore, is not entitled to the IRB.

35After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not met her evidentiary onus of showing that she suffers a complete inability to engage in any employment/self-employment for which she is reasonably suited by education, training or experience.

36I accepted that the applicant was diagnosed with a WAD-II by Dr. Freundlich as a result of her accident and that her accident exacerbated her pre-existing physical and phycological conditions based on the doctor’s clinical notes and records.

37However, in terms of the applicant’s tennis elbow and disc bulges, I was not directed to persuasive evidence that drew a nexus between this injury and a completed inability to engage in any employment/self-employment for which the applicant is reasonably suited by education, training or experience. Neither the applicant’s family doctor nor her treating doctors commented on this nor provided an OCF-3 which supports her position.

38I was also persuaded by the IE of Dr. McKay, which found that the applicant did not suffer a complete inability to engage in any employment/self-employment that she would otherwise be suited to by her education, training or experience based on her musculoskeletal, accident-related injuries.

39In terms of Dr. Sadoughi’s findings that the applicant’s pain was myofascial, this finding did not comment on the applicant’s complete inability to engage in any employment/self-employment that she would otherwise be suited to by her education, training or experience based on her musculoskeletal, accident-related injuries, and therefore, I did not find this evidence persuasive.

40In terms of the applicant’s psychological injuries, Ms. Leonard and Mr. McGregor and Ms. Leonard and Mr. White did not provide evidence that specifically addressed the issue in dispute, the applicant’s alleged complete inability. Though I did agree that this evidence supported the applicant’s complaints of pain and psychological issues, it did not comment on the post-104 test.

41In terms of the respondent’s submission that the applicant returned to work for just over two months in the summer of 2019, though I do agree that this shows the applicant did have some work abilities, it in and of itself is not determinative of the applicant’s complete inability.

42However, I was persuaded by the findings of Dr. Deck, which were not only supported by psychometrics but did comment on the issue in dispute and the applicant’s complete inability.

43In terms of Dr. Deck’s WRIOT2, though I appreciated the applicant’s submissions, they were not based on any actual testing but were instead supported by information about tennis elbow²⁶ and herniated discs²⁷. This information was not specific to the applicant, nor did it address the issues in dispute and her complete inability. Therefore, I found it less persuasive and relevant.

44Moreover, beyond this information and the applicant’s arguments, she provided no evidence that addressed the findings of Ms. Gould, and therefore, I find she has not met her evidentiary burden. Ms. Gould found that the applicant was able to work several jobs, and though the applicant did not agree with this, she did not provide persuasive evidence to support her arguments. Therefore, I found Ms. Gould’s evidence to be persuasive.

45In terms of the applicant’s geographic location, though I found this argument novel, again, this was not supported by evidence nor did the applicant explain why she would be unable to “telework” or work from home, given her status as an online student.

46Therefore, for the reasons above, I find that the applicant is not entitled to an IRB for the disputed period.

47I also found it odd that the applicant did not address the respondent’s concerns with section 57 of the Schedule, namely that if the applicant is entitled to an IRB, she is obliged to participate in reasonable, available and necessary treatment, meaning receiving treatment from a psychiatrist. Though this issue is moot, as the applicant is not entitled to the IRB, had she been found entitled, this issue would have certainly given me pause; I find it hard to accept that an applicant claims an IRB on the basis of psychological injuries, who was referred to a psychiatrist but did not provide evidence of engaging in treatment. Without this evidence, the respondent would be entitled to provide notice based on section 57(5) of the Schedule.

INTEREST

48Since I have found that the applicant is not entitled to the disputed benefit, no interest is owed.

COSTS

49The applicant also requested costs in her submissions, due to the respondent’s unreasonable, frivolous, vexatious or bad faith actions pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure – October 2, 2017, as amended (“Rules”),

50The respondent objected to this issue being raised, as the applicant failed to comply with Rule 19.4, which requires a party to provide particulars of the allegation, which it submitted the applicant had failed to do.

51After reviewing the submissions and evidence of the parties, I agree that the applicant failed to provide particulars of the respondent’s behaviour that warranted costs or that was unreasonable, frivolous, vexatious or made in bad faith. Therefore, since the applicant failed to comply with Rule 19.4, she may not proceed with her request for costs.

CONCLUSION AND ORDER

52The applicant is not entitled to a weekly, income replacement benefit in the amount of $79.00 per week from April 8, 2019, and on-going.

53The applicant is not entitled to interest.

54The applicant is not entitled to costs.

55The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2On March 1, 2017.
3. 3On March 8, 2017.
4. 4Based on the clinical notes and records of Dr. Freundlich, dated July 29, 2019.
5. 5Ibid.
6. 6MRI from Lady Minto Hospital dated June 13, 2018.
7. 7Timmins and District Hospital MRI report of the applicant from Dr. Robert Loeb dated June 28, 2018.
8. 8Consultation Report of Dr. Zaitlen, dated December 30, 2018.
9. 9Report of Dr. Sadoughi, dated February 23, 2018.
10. 10Integrated Psychological/Social Work Progress Report of Ms. Leonard and Ms. McGregor, dated December 21, 2019.
11. 11Interim Social Work Progress updated dated June 26, 2020.
12. 12Ibid.
13. 13Dated March 25, 2021.
14. 14Based on the applicant’s OCF-2 dated August 23, 2017.
15. 15Based on a letter from the applicant’s previous employer, Canadian Red Cross, dated March 13, 2017.
16. 16Based on the applicant’s employment file from Terry’s Steaks, Burgers and More.
17. 17Clinical notes and records of Lady Minto Hospital dated February 16, 2017.
18. 18MRI of the applicant’s shoulder dated September 17, 2017.
19. 19Based on the MRI reports of October 9, 2017, February 17, 2018, and June 26, 2018.
20. 20Psychological Evaluation of Dr. Deck dated April 8, 2019.
21. 21Ibid.
22. 22Labour Market Survey of Ms. Gould dated April 8, 2019, and the Vocational Evaluation and Transitional Skills Analysis Report of Ms. Gould dated April 8, 2019.
23. 23General Practitioner Evaluation of Dr. McKay dated April 8, 2019.
24. 24Functional Abilities Evaluation of Dr. Gera dated April 9, 2019.
25. 25Based on the referral note of Dr. Freundlich, dated March 2, 2017.
26. 26OSH Answers Fact Sheet – Tennis Elbow, https://www.ccohs.ca/oshanswers/diseases/tennis_elbow.html#:~:text=Tennis%20elbow%20is%20the%20common,outer%20side%20of%20the%20arm.
27. 27Information from Your Family Doctor – When You Have a Herniated Disc, 2003, https://www.aafp.org/pubs/afp/issues/2003/0515/p2195.html.