Citation: Hardwick v. Intact Insurance Company, 2023 ONLAT 21-001592/AABS

Licence Appeal Tribunal File Number: 21-001592/AABS

In the matter of an Application pursuant to section 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Patricia Hardwick

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: Lane Foster, Counsel Kenneth Ciupka, Counsel Brittany Stewart, Paralegal

For the Respondent: David F. Murray, Counsel

Transcriber/Reporter: Joseph McCall

Heard by Videoconference: October 11, 12, 13 & 14, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on November 21, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2On the evening of November 21, 2017, the applicant was driving on Highway 11, when another vehicle merged in front of her and braked. She skidded and both cars sideswiped. Seat belted, she was jolted against the door and bumped about in her car, where she stayed until the police arrived. She was able to drive home but because of increasing pain in her left posterior thoracic region and lower back, the following day she attended the emergency room at the North Bay Regional Health Centre. X-rays showed a fracture on her left posterior seventh rib. She was prescribed Toradol and discharged home.

3The applicant’s accident-related musculoskeletal diagnosis was a grade 2 whiplash-associated disorder (WAD II); cervical spine strain; soft tissue strain/sprain, thoracic spine; soft tissue strain/sprain, lumbar spine; and fracture, left posterior seventh rib.

4The applicant had been receiving a post-104 week income replacement benefit (“IRB”) up until October 1, 2020, when upon receipt of insurer examination reports from an orthopaedic surgeon and a vocational assessor, the respondent determined that the applicant’s accident-related musculoskeletal injuries had “objectively resolved” and that she did not have objective functional restrictions as a result of her accident-related injury.

ISSUES

5The issues are as follows:

a. Is the applicant entitled to an IRB of $258.64 per week from October 1, 2020 to date and ongoing?

b. Is the applicant entitled to $1,067.50 for a physiotherapy treatment plan dated July 24, 2019?

c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

6I find that:

a. The applicant is entitled to an income replacement benefit of $258.64 per week from October 1, 2020.

b. The applicant is not entitled to $1,067.50 for a physiotherapy treatment plan dated July 24, 2019.

c. The respondent is liable to pay an award in the amount of $2,800.00 plus interest in accordance with Regulation 664.

d. As benefits are overdue, the applicant is entitled to interest in accordance with the Schedule.

OVERVIEW

7The applicant lives with her husband in a rural area of northern Ontario, about 40 kilometres from North Bay. She has a long history of health challenges, including epilepsy controlled by medication, degenerative disc disease, chronic low back pain with reliance on a prescription narcotic patch since the early 2000s, a clavicle fracture and left shoulder/arm from a 2012 injury, and a workplace injury in late 2016.

8From high school onward the applicant’s employment has been primarily in the service industry as, for example, a waitress, bartender, cashier, janitor, car detailer, gas bar/store attendant, and store clerk. In the early 1990’s the applicant completed a college program in travel and tourism but because of other life events she did not work as a travel agent. She has engaged in warehouse inventory and clerical work, and in the early 2000s, ran a part-time tree service business with her husband, with her role including brush hauling, loading trailers, rope rigging and bookkeeping.

9The applicant has faced significant challenges throughout her working life, however up until the 2017 motor vehicle accident (“MVA”) she has addressed such matters and continued in the workforce.

10In 2014 the applicant began a permanent part-time position as a keyholder (assistant team leader) at Dollarama. In late 2016, the applicant had a workplace injury from a lifting/twisting action affecting her T-10 area of her back, with neck, shoulder and arm pain. This caused her to be off-work from January 2017 until late March of that year, after which she returned to work on modified duties (no ladders, heavy lifting or repetitive motions). For several months prior to the November 21, 2017 MVA, the applicant continued as a Dollarama keyholder at her regular part-time hours, which she described as alternating between to 25 to 35 hours per week.

11The applicant has not worked since the November 21, 2017 MVA.

EVIDENTIARY ISSUE

12At the hearing, the applicant sought to introduce a report of Dr. Mark Friedlander, an anesthesiologist experienced in the diagnosis, investigation, and management of chronic pain. He assessed the applicant’s chronic pain condition two years post-accident in November 2019. While Dr. Friedlander had been on the applicant’s witness list for the hearing, he was out of the country at the time of the hearing and not available to participate in the video-conference hearing. The respondent objected to the admission of the report as Dr. Friedlander was not available for questioning.

13Section 15(1) of the Statutory Powers Procedure Act R.S.O. 1990, Chapter S.22 (“SPPA”) permits the Tribunal to admit into evidence at a hearing any oral testimony and document or other thing relevant to the subject matter of the proceeding and may act on such evidence. The report is not included in the two exceptions provided by section 15(2) of the SPPA: it is not a document that would be inadmissible in a court by reason of any privilege under the law of evidence, nor is it inadmissible by the Insurance Act, Schedule, or other statute.

1Dr. Friedlander’s report included a signed acknowledgement of expert’s duty to provide opinion evidence that was fair, objective and non-partisan and related only matters that were within his area of expertise. The acknowledgment also recognized that this duty prevailed over any obligation which Dr. Friedlander might owe to any party on whose behalf he was engaged.

2I find that Dr. Friedlander’s report is relevant to the subject matter at issue and will admit it pursuant to section 15(1) of the SPPA. While the respondent submitted that the inability to test the report by way of cross-examination could not be compensated by weight, I do not accept Dr. Friedlander’s unavailability at the hearing to be an absolute bar to receipt of his report. The fact that Dr. Friedlander is not available to be questioned at the hearing will go to the weight of any contested aspects of the report.

ANALYSIS

Income Replacement Benefits

14To qualify for IRBs after 104 weeks have passed since an accident, a person must meet the requirements of section 6(2)(b) of the Schedule and show that accident-related impairments have caused a complete inability to engage in any employment or self-employment reasonably suited to the person’s education, training or experience. The onus is on the claimant to prove this on a balance of probabilities. For the reasons that follow, I find that the applicant has done so.

IRBs - Causality

15The applicant takes the position that she has faced serious pre-existing health issues but the 2017 MVA was the event that pushed her over the edge of not being able to work.

16The respondent contends that the applicant has not established that her current impairments are causally related to the MVA. The respondent submits that the applicant had problems of longstanding duration prior to the MVA and that while she may conflate her recollection of events attributing her condition to the MVA, this does not mean that her impairments have not been caused by other factors.

17I find that the accident was a necessary cause of the applicant’s current impairments.

18The leading case for causation in accident benefit cases is Sabadash v. State Farm et al., 2019 ONSC 1121. In Sabadash the Divisional Court articulated the “but for” test. The accident-related cause need not be the major cause of the impairments but the applicant must show that she would not have suffered the injuries “but for” the accident. The accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”

19As pointed out by the applicant, there is no suggestion of feigning or other credibility concerns from any of the health professionals who have assessed the applicant, or from any of the testing or validity measures that have been employed. I find that the applicant has been direct and candid with the health professionals who have seen her and with the Tribunal.

20While the applicant had physical issues prior to the 2017 accident, having heard the applicant and her husband’s testimonies of her daily life and activities, it is evident that both perceive the 2017 accident as a significant turning point in the applicant’s functioning. I find no reason to discount this.

21Pre-accident, the applicant had longstanding degenerative disc disease and low back pain. She had a 2016 workplace injury affecting her mid back, neck, shoulder and arm, however she had returned to working her regular full-time hours for some months prior to the 2017 accident. Contemporaneous medical documentation shows continued accident-related issues after the date of accident. For example, her family physician’s medical chart shows a steroid injection for pain from her rib weeks afterward; a consult report of Dr. Lesley Corrin in August 2018 documents the applicant’s report of numbness and bilateral hand pain having increased after the MVA; aggressive physiotherapy was instituted from May 2018 (after the applicant’s rib fracture was no longer radiologically evident); and the applicant has reported continuing complaints of pain related to the 7th posterior rib injury.

22Dr. Jamie Rusen, the orthopaedic surgeon who had conducted insurer examinations of the applicant, stated in a 2022 report that due to the applicant’s underlying degenerative disc disease and her past history of low back pain, the prognosis related to her subjective symptom resolution was guarded. He testified that degenerative disc disease can change from asymptomatic to symptomatic after trauma and reported that the applicant’s degenerative changes were “probably exacerbated” by the accident.

23Dr. Friedlander’s report stated that the applicant’s mid-back mechanical and myofascial pain to be the result of sprain/strain injury of her thoracic vertebral column and fracture of the seventh rib. He similarly addressed the effect of the MVA lumbar sprain/strain on the applicant’s existing chronic low back pain. His report stated that such pain conditions may have no positive radiological findings and that the applicant’s pre-accident history likely made her more vulnerable to further injury and to the deterioration of her chronic pain condition. While Dr. Friedlander was not available for cross-examination, no specific submissions were made with regard to this aspect of Dr. Friedlander’s report, and such findings appear consistent with the reported accident injuries and with Dr. Rusen’s orthopaedic findings.

24Even though the evidence shows the applicant to be an individual with a positive work ethic, there has been no suggestion that she could return to her Dollarama work, with or without modifications, after the 2017 MVA. The timeline shows the 2017 MVA as the pivotal event between the applicant’s ability to work and not work.

25Dr. Rusen’s and Dr. Friedlander’s comments are in accord with the timeline of the applicant and consistent with the preponderance of evidence that but for the accident, the applicant would have continued working.

26I find that on the balance of probabilities, the accident and its effect on the applicant’s condition, most notably her chronic pain, became the tipping point for the applicant’s employability.

Intervening Event

27The respondent submitted that the applicant’s recovery was interrupted by an intervening event. Specifically, at the beginning of October 2018 the applicant tripped over her dog and fell. This was at a time when the applicant was receiving intensive physiotherapy treatment for the 2017 MVA. With regard to the impact of the 2018 fall, there was no evidence of ensuing medical investigations, steroid injections or changes to pain prescriptions. The family physician’s chart did not specifically note the event. Her family physician who had been following her post-accident course did not see her until a few weeks after the fall. He documented under the ”S” (symptoms) heading that the applicant “is here to follow up for her back. She is doing about the same. Slight improvement from her pharatherapy (sic).” While the 2018 fall might have had some effect on her condition, the evidence does not show that this was a significant intervening event or that it in some way supplanted the 2017 MVA-related impairments.

Causality - conclusion

28According to Sabadash, the accident does not need to be “the cause” of the injuries, but “a necessary cause.” I find that on a balance of probabilities, the evidence establishes that the 2017 MVA was a necessary cause of the applicant’s current impairments and the applicant would not have suffered her impairments “but for” the accident.

IRBs - Inability to engage in suitable employment Income

29The applicant has demonstrated on a balance of probabilities that she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She therefore continues to qualify for post 104 IRBs under 6(2)(b) of the Schedule from October 1, 2020 onward.

30I heard testimony from the applicant, her husband, her family physician (Dr. Rick Senior), and Mr. Allan Walton (a co-author of a psychovocational assessment report completed for the applicant.) Two assessment reports were relied upon by the applicant – the previously referenced chronic pain assessment of Dr. Friedlander and a psychovocational assessment of Dr. Phillip Miller, psychologist and Mr. Allan Walton (the Miller/Walton report).

31Three assessors who had conducted insurer examinations testified at the hearing in addition to providing written reports: Dr. Rusen, Dr. Sandra Stewart, psychologist; and Mr. Luis Grimaldi, kinesiologist (functional abilities evaluation/vocational and transferable skills analysis/ labour market survey).

32The applicant submits that she does not have the capacity to work because of the effects of pain and that if one day she puts forth full effort, she pays for it the next. She underscored that the evidence shows her to be credible and therefore her reports of impairment should be accepted. She also submits that her family doctor’s evidence should be given considerable weight as Dr. Senior is a professional who has been treating her since 1998, has seen her regularly over the years, and is well aware of her course and ability to function.

33The respondent submits that the orthopaedic and psychological assessments of Drs. Rusen and Stewart demonstrate that the applicant does not have physical or psychological impairments that render her unemployable. The respondent also submitted that while the applicant has tested as credible in her reports, her recollection of her health condition does not accurately reflect her accident-related injuries.

34The applicant has had multiple assessments including orthopaedic, psychological, chronic pain, functional and vocational. The assessments are relatively consistent when viewed within the parameters of each assessor’s expertise, test conditions and the totality of the applicant’s circumstances.

Income Replacement Benefits - Does the applicant have a complete inability for employment?

Orthopaedic Assessments

35Dr. Rusen’s orthopaedic assessment of the applicant for continued post-104 week IRBs appears in a report dated September 10, 2020. At the hearing Dr. Rusen testified that his objective physical examination did not demonstrate any appreciable functional disability, however he recognized that the applicant had ongoing subjective complaints of pain to her thoracolumbar spine. He also testified that he was unable to comment on chronic pain, that it was outside of his realm of expertise as an orthopaedic surgeon, and that during the assessment he did not observe any inconsistencies in the applicant’s reports to him and his physical assessment. While from a solely orthopaedic perspective he found that the applicant’s objective accident-related injury had resolved, he testified that his prognosis for subjective improvement or recovery was less likely than not due to the chronicity of her pain.

Psychological Assessment

36There were psychological assessments arranged on behalf of both the applicant and the respondent. Both assessments corroborated the applicant’s pain-related psychological symptoms, although the assessment arranged by the applicant found there to be an independent psychological diagnosis while the assessment arranged by the respondent did not.

37The psychological assessment carried out on behalf of the applicant was part of the Miller/Walton report. Dr. Miller is a clinical psychologist with expertise in psychovocational assessments and chronic pain. Mr. Walton, who testified at the hearing, is a registered psychotherapist with a professional history in counselling, rehabilitation, chronic pain management and vocational assessment services.

38The Miller/Walton assessment was comprised of a clinical interview on February 18, 2021; psychological and vocational testing; and a document review. The report highlighting the following documents: a February 2018 functional capacity evaluation by Mr. Grimaldi; orthopaedic insurer examination reports of Dr. Yadav from February 2018 and January 2019; a 2019 orthopaedic report of Dr. Rusen; documentation from the applicant’s family physician; a February 2020 report of Marla Tennen, RN, a rehabilitation consultant; and a January 2020 vocational evaluation and transferable skills analysis of Lisa Timmons, a vocational evaluator.

39The psychological assessment carried out as an insurer examination was conducted by psychologist Dr. Sandra Stewart with a report dated April 26, 2022.

40Dr. Stewart’s examination was comprised of a clinical interview, psychological testing and a review of documentation, with the report highlighting the following documents: the Miller/Walton psychovocational assessment dated July 26, 2021; the February 2018 functional capacity evaluation by Mr. Grimaldi; the 2020 orthopaedic report by Dr. Rusen; the February 2018 orthopaedic report by Dr. Yadav; the OCF3 Disability Certificate dated December 2, 2017; and the Emergency Room Report by Dr Murray Meek dated November 22, 2017.

41Dr. Stewart’s assessment was psychological and not vocational. She did not consider any testing with regard to vocational aptitude or intellectual/ academic factors.

42Both the Miller/Walton and Stewart assessments included a clinical interview, Beck Depression Inventory II, Beck Anxiety Inventory and Personality Assessment Inventory (PAI). The Miller/Walton assessment also included Paulhus Deception Scales and Miller Forensic Assessment of Symptoms Tests and a Pain Patient Profile 3. The embedded validity measures in the PAI and the Pain Patient Profile 3; as well as the specific validity tests (PDS and MFAST). Dr. Stewart also used an Activities of Daily Living checklist. Both assessments considered the applicant’s test results to be a valid reflection of the applicant’s psychological functioning and valid self-reporting.

43The PAI in both assessments showed some relatively mild and/or transient depressive symptoms associated with a change in physical functioning and concerns of physical functioning and health. The Beck Anxiety Inventory conducted by both parties showed reported symptoms in the minimal range. The Beck Depression Inventory of Dr. Stewart showed the applicant scoring in the minimal range whereas the applicant scored in the moderate range with the Miller/Walton report testing.

44Dr. Stewart testified that her report and testing were comparable to the Miller/Walton results, however she determined that the applicant’s condition did not rise to the level of a DSM-5 diagnosis of psychological impairments. In contrast, the Miller/Walton report concluded that the applicant met the DSM-5 criteria for a “collision-related Adjustment Disorder with Mixed Anxiety and Depressed Mood.” In addition, based on the Personality Assessment Inventory, the Miller/Walton report found the applicant to have “collision-related Somatic Symptom Disorder with Predominant Pain.”

45Dr. Stewart determined that from a purely psychological perspective, the applicant did not suffer an inability to work. Dr. Stewart testified that chronic pain was not a large part of her practice and she was not an expert in this area. It was clear from the evidence at the hearing that the applicant’s inability to work is largely pain-based. As chronic pain only factored into Dr. Stewart’s assessment to the extent that it factored into the applicant’s psychological condition, her assessment is of limited value in determining the applicant’s employability.

46The Miller/Walton report which was both psychological and vocational, determined that the applicant’s psychological condition was interwoven with her overall condition affecting her employability and which included her chronic pain.

47Both the Stewart and the Miller/Walton assessments confirm that the applicant’s chronic pain reports are consistent her psychological symptomatology.

Chronic Pain - Friedlander Report

48Drs. Rusen and Stewart testified that they had not been provided Dr. Friedlander’s report for their assessments; that they were only provided the report for the hearing; and that it did not affect their opinions. Mr. Grimaldi testified that he would defer to Dr. Friedlander’s professional medical opinion as a chronic pain specialist, but he had already finalized his report and only read the Friedlander report about a week before the hearing.

49I find the information as set out in Dr. Friedlander’s report to be generally consistent with the evidence relied upon by both parties at the hearing.

50Dr. Friedlander’s November 2019 assessment diagnosed the applicant with chronic pain syndrome – finding that the applicant met two or more of eight criteria required for the diagnosis of chronic pain syndrome, in accordance with the AMA Guides, 4th edition. Dr. Friedlander found that the applicant met seven, possibly eight of the eight criteria: duration (chronicity), verbal or non-verbal behavioural changes; need for medication or substance use; dysfunction and impairment; immobilisation and avoidance of activity; and dependence on passive physical therapy. He also included “possible psychological impairment.”

51Dr Friedlander’s report concluded that the applicant’s prognosis for recovery was poor given her long history of chronic pain requiring narcotic therapy and taking into account the radiological reports (degenerative disc disease). He noted that the applicant’s pre-accident history likely made her more vulnerable to further injury and deterioration of her chronic pain condition as a result of the accident.

Chronic Pain – Testimonial and related evidence

52There was considerable testimonial evidence from the applicant and her husband about how the applicant’s pain condition has markedly affected all aspects of her pre-accident activities - outdoor recreational pursuits, sports and community activities, social engagements, interpersonal relations, daily chores, and ability to sleep and concentrate.

53For example, the applicant testified that outdoor chores and gardening had traditionally been a significant focus for her, but this has declined. She is much slower now, when she pushes herself one day she pays for it the next, and her husband has picked up the slack. The applicant testified that that being on her feet one day can lead to her pain doubling the next, that repeated actions like loading and lifting bags aggravates her pain, and that lifting above the waist can cause her extreme pain.

54The applicant’s husband testified that 90 percent of the outdoor tasks since the accident have fallen to him: the grass-cutting, putting in the garden and weeding. He testified that the applicant’s garden activity was now largely limited to watering and harvesting of vegetables, with maybe ten to fifteen minutes of grass cutting compared to three to four hours of her pre-accident grass-cutting.

55The applicant’s husband also testified about the applicant’s post-accident changes, stating that she perseveres and tries to follow through commitments around the house and socially but cannot be relied upon to do so; that she drops items; and that her pain and erratic sleep affects her physically and emotionally.

56Both the applicant and her husband testified about the applicant’s irregular and disruptive sleep patterns, her constant waking and restlessness and of her sleep issues resulting in her being groggy, making mistakes, and affecting her mood and abilities during the day. The applicant testified that she is awakened by pain with “every twist and turn” in her sleep, changes like a new bed have not helped and she is trying different substances to address pain-related sleep disruption. Dr. Stewart noted the applicant as reporting her sleep as “horrible”, “can’t sleep for more than four hours at a time,” and feeling fatigued “all the time.”

Vocational Assessment Evidence - Functional Capacity Evaluation

57Mr. Grimaldi conducted vocational assessments as part of insurer examinations including a post-104 week IRB functional capacity evaluation in February 2020, and a vocational and transferable skills analysis with a labour market survey in August 2020.

58In the functional capacity evaluation, Mr. Grimaldi determined that the applicant demonstrated reliable, consistent maximal effort and that there was reported mid-back pain consistent with his observation. From this assessment, he found that the applicant demonstrated medium physical demand capacity. He documented unrestricted handling and finger dexterity; some restriction to standing, sitting, forward reaching, stooping and cervical mobility; and greater restriction to walking, lifting, crouching, carrying, kneeling and overhead reaching.

59Mr. Walton testified that his organization had used functional capacity evaluations for many years but had not found them helpful where an individual is able to provide maximum voluntary effort on one day but unable to sustain this. He noted that the applicant was able to push herself for a few hours in one day but this did not mean she could do this day in and out.

60Given the evidence about how the applicant’s chronic pain condition interplays and varies in her day-to-day functioning, I find that the functional capacity evaluation is of limited assistance for demonstrating the applicant’s capacity for employment settings.

61Mr. Grimaldi also testified that the applicant’s sitting tolerance was not evaluated and that while she had sat through 28 percent of the evaluation (18 minutes cumulative), this did not mean that she could sit for two hours daily.

Vocational Assessment Evidence - WRAT4 & WAIS-IV

62The Miller/Walton assessment included the Wide Range Achievement Test – Revision 4 (WRAT4) as well as the Wechsler Adult Intelligence Scale – Fourth edition (WAIS-IV).

63The WAIS-IV composite score of the applicant (FSIQ) was within the low average range, corresponding to the 9th percentile of her age peers. On the five index scores of the WAIS-IV the results were as follows:

a. General Ability Index was at the Borderline range, 6th percentile

b. VCI (verbal acquired knowledge and verbal reasoning) was at the Borderline range, 5th percentile

c. PRI (visual-fluid reasoning, spatial processing, attentiveness to detail, visual-motor integration and visual organization) was at the Low Average range, 13th percentile

d. WMI (ability to attend to verbally presented information, to process information in memory and formulate a response) was in the Average range, 50th percentile

e. PSI (ability to process simple or routine visual information quickly and efficiently and to quickly perform tasks based on that information) – Low Average range, at the 16th percentile.

64The Miller/Walton report stated that the applicant’s WAIS IV measures were below expectation based on the applicant’s level of formal education. It commented that that while it was beyond the scope of the assessment to determine why this was the case but noted that pain and/or emotional response, fatigue, sleep deprivation and medication side-effects can contribute to lower than expected academic test scores.

Vocational Assessment Evidence – GATB

65Both the Grimaldi and Miller/Walton assessments included the General Ability Test Battery (GATB) vocational testing. The Miller/Walton GATB results scored in ranges consistent with other testing completed in the Miller/Walton assessment.

GATB Measure	Grimaldi Assessment	Miller/Walton Assessment
General Learning Ability	Middle third of working population	Low average range (27th percentile) (result reported to be consistent with the Miller/Walton WAIS-IV, FSIQ and GAI scores)
Verbal Aptitude	Middle third of working population	Low average range (32nd percentile) (result reported as consistent with Miller/Walton WRAT4 as well as WAIS-IV, VCI and Vocabulary subtest outcomes)
Numerical Aptitude	Highest 10% of working population	Average range (53rd percentile)
Spatial Aptitude	Middle third of working population	Average range (45th percentile)
Form Perception	Upper third of working population	High average range (81st percentile)
Clerical Perception,	Upper third of working population	Low average range (91st percentile)
Motor Coordination	Upper third of working population	Not tested as virtual assessment
Finger Dexterity	Upper third of working population	Not tested as virtual assessment
Manual Dexterity	Highest 10% of working population	Not tested as virtual assessment

66With regard to the differences in the two sets of GATB test results, Mr. Walton testified that Mr. Grimaldi’s results from the GATB were unusual and he could not explain the results. The Miller/Walton GATB was scored by an experienced university-trained psychometrist and the two lowest GATB areas were noted as consistent with other Miller/Walton testing results. In any event, while GATB results can help inform training prospects and vocational choices, they are not determinative of employability.

67For his vocational evaluation, Mr. Grimaldi used the functional capacity evaluation, his GATB test results, and a transferability of skills analysis which showed the applicant as having strengths for directive, methodical and innovative work.

68Mr. Grimaldi’s transferable skills analysis relied on the applicant’s position at Dollarama which he identified as involving stock replenishment, customer service and unspecified managerial duties. At the hearing, the applicant testified further about her duties as a keyholder: a manager or assistant manager would be at the store with her until 5 pm, after which time there were three to five people with her and at the end of the day, she would cash out the cashiers, deal with the money, complete the day’s books, and ready the store for opening the following day. I note that the keyholder’s management scope appears limited when compared to managerial descriptions identified in Mr. Grimaldi’s assessment.

69Based on the National Occupational Classification, Dictionary of Occupational Titles and the Occupational Information Network and the applicant’s work at Dollarama, Mr. Grimaldi classified the applicant as a “Retail and Wholesale Trade Manager.” This role is described as involving organizing, directing, controlling and evaluating operations of a business selling merchandise or services on a retail/wholesale basis, with duties including for example, studying market research and trends to determine consumer demand; potential sales volumes and effect of competitor operations; sourcing and negotiating with vendors when necessary to procure merchandise for resale; developing and implementing marketing strategies; planning budgets; authorizing expenditures; and monitoring revenues. Many such duties go beyond the applicant’s experience and would entail significant learning curves.

70The labour market survey conducted by Mr. Grimaldi identified the following jobs for which the applicant could apply within 50 km of her home: a motel manager; call centre agent (specifically, a customer service representative in the insurance/finance industry; as well as a customer service agent in “assistance services”); a human resources benefits consultant; and internet retail and wholesale trade manager.

71The 2020 labour market survey identified some positions which were internet-based. It did not address whether the levels of internet capacity required were available at the applicant’s rural location.

72Mr. Grimaldi’s report stated that the applicant “does not require specialized vocational training, licensing, or other preparation in order to readily compete for the identified occupations.” However, he clarified in his testimony that this does not necessarily mean that the applicant is equipped for the position. Responding to questions at the hearing, Mr. Grimaldi stated that he did not factor in the applicant’s training needs for the positions identified and that his analysis did not mean that the applicant would be hired for these jobs, but that she could apply for them.

73The applicant contended that the jobs identified in the labour market survey were not realistic and did not reflect the applicant’s education, training or experience. The applicant testified that she does not have training or experience in human resources, the insurance industry, finance, health care or logistics. Some of the positions are expressly identified as managerial; and as noted above, the applicant’s keyholder role at Dollarama had limited in managerial functions. With regard to the motel manager position, while the applicant worked at a lodge in her high school days, there is no evidence suggesting that the applicant has the experience level sought or that she would be able to consistently meet the physical and other demands of such a role.

74The applicant also reported that she could not sit for two hours at a time, and only had a partial ability in standing. As noted earlier, Mr. Grimaldi’s assessment did not measure this aspect of the applicant’s functioning. The Miller/Walton report found that clerical or quasi-clerical vocations (such as a customer service representative, scheduling clerk, dispatcher, or travel agent) had physical requirements such as prolonged sitting, cognitive demands and in cases, interpersonal demands which were beyond the applicant’s present capacities.

75The applicant’s previous work experience suggests that the positions identified would entail a significant learning curve for her. Considering this together with other evidence including the results of the WAIS-IV testing and the applicant’s continuing pain-related limitations, I find that none of the positions identified in the labour market survey are realistic for the applicant.

76I also note Mr. Walton’s testimony that the Grimaldi report did not integrate the effects of the applicant’s chronic pain symptoms in making his findings. Mr. Grimaldi did not have the benefit of Dr. Friedlander’s chronic pain report when conducting his assessments. Mr. Walton commented that the preponderance of the applicant’s chronic-pain symptoms negates her ability for any occupation – unreliability and fatigue, unpredictable functioning, compromised ability to interact, limiting potential for retraining. He underscored that the applicant indicated she can push herself for a few hours one day but not sustain this day after day and that she scored high on validity measures.

Conclusion - Employability

77The applicant is in her mid-fifties and has been out of the labour force for a number of years. With regard to her subjective complaints of pain, she has been found by multiple health professionals to be credible in the reporting of her conditions and symptomatology. I accept the statement of the Miller/Walton report - that the applicant’s employability can only be accurately assessed when all factors (skill sets, chronic pain status, physical and cognitive limitations, emotionality, plus age) are considered.

78When looking at the interrelationship of all of the above factors, I find that the preponderance of the evidence is in accord with a letter of September 12, 2019 to Dollarama in which Dr. Senior wrote that “I do not anticipate that Patty will ever return to work based on her lack of response to treatment to this point in time. There are no physical restrictions that can be put in place that would be sufficient to allow her to work and she is basically limited to a completely sedentary lifestyle at this point.…[S] he has been assessed and treated aggressively for an extended period of time. She presently requires fairly significant narcotic medication to control her pain and to allow her to do her activities of daily living. … There are no accommodation requirements that would permit her to return to work at this point.”

79I find that the applicant has demonstrated on a balance of probabilities that she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

Quantum of IRB

80With regard to quantum of IRB, the respondent submitted that rental income had been claimed by the applicant on her 2020 CRA return and that this affected the quantum of the applicant’s IRB. The applicant took the position that the rental income was in the nature of passive income and did not affect quantum of IRBs payable. Caselaw was not referenced by either party on this issue.

81The rental income in question relates to one condominium unit owned by the applicant. There is no evidence that this rental income is anything other than passive income. There is no suggestion that it has qualities of self-employment or business income. In such circumstances, it has been determined that rental income should not be included in IRBs: see for example, Terry Dacosta v. State Farm Mutual Automobile Insurance Company, 2018 ONFSCDRS 46 (February 28, 2018), where the applicant's passive income, including rental income, was not included in calculating the IRBs payable either pre or post accident.

82I find that the applicant’s rental income does not affect the quantum of the IRB payable.

Physiotherapy Treatment Plan

83The respondent denied the physiotherapy treatment plan dated July 24, 2019 for $1,067.50 on the basis that it was not reasonable and necessary. The respondent had determined that the applicant had reached maximum medical recovery from accident-related orthopaedic injuries and that further facility based physical therapy treatment would not contribute to further recovery.

84The evidence before me includes Dr. Rusen’s report finding that the applicant had reached maximum medical recovery. In addition, the applicant’s family physician documented in a letter of September 2019, that the applicant was not responding to the aggressive treatment she was receiving.

85Given this evidence, I find that the applicant has not demonstrated that the physiotherapy treatment plan of July 24, 2019 is reasonable and necessary.

INTEREST

86Interest applies on the overdue IRB benefits from October 1, 2020, pursuant to section 51 of the Schedule.

AWARD

87The applicant sought an award under section 10 of Regulation 664. Under this section, the Tribunal may grant an award of up to 50 percent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The respondent is not held to a standard of perfection. However, the respondent must not be immoderate, imprudent, inflexible, or excessive in its approach while adjusting the applicant’s claim.

88The applicant sought the award for two reasons. The first reason was because the respondent initially denied, then approved and once again denied the physiotherapy treatment plan at issue. The second reason for the award was because Dr. Friedlander’s November 2019 chronic pain assessment report had not been provided to any of the respondent’s assessors until after the examinations had been completed. The assessors only received Dr. Friedlander’s report in preparation for the Tribunal hearing.

89With regard to the respondent’s flip-flopping denial of the physiotherapy treatment plan, the respondent commented that no treatment costs had been incurred. While the reversals of the denial suggests poor or sloppy administrative practice, as the applicant is not entitled to benefits for the physiotherapy services in dispute, she is not entitled to an award with respect to those benefits.

90I find the respondent’s failure to provide Dr. Friedlander’s chronic pain report to any of the insurer’s examiners in advance of the examinations to be significant. Chronic pain is central to the applicant’s employability and an assessment from a medical professional with expertise in chronic pain is relevant in informing other assessments. A failure to provide the insurer’s assessors with available relevant medical reports can unduly affect the assessment of a claimant’s condition, delay approval where it may be warranted, and present an appearance of unfairness.

91In this case, the respondent stopped the applicant’s post-104 week IRB payments on October 1, 2020, upon receipt of the insurer examination reports from Dr. Rusen and Mr. Grimaldi. Neither had expertise in chronic pain assessment and neither had been provided Dr. Friedlander’s report to consider in their assessments of the applicant. The applicant’s IRB was terminated upon the adjuster receiving Dr. Rusen’s and Mr. Grimald’s post-104 IRB assessments, both of which were completed without the benefit of chronic pain expertise.

92Regardless of whether a report might change the opinion of an assessor after the fact, it is vital that an insurer provide relevant available medical documentation to its assessors to aid in informing their initial opinion.

93Whether administrative sloppiness or other factors lead to the failure to provide Dr. Friedlander’s chronic pain report to the section 44 assessors in a timely manner, the fact that the report were not provided was imprudent if not immoderate. Claimants rely upon insurers to make relevant information available to its section 44 insurer examiners. A failure to do so can have serious and unfair consequences on claimants which cannot be readily corrected.

94From the standpoint of deterrence, I find that an award in the amount of $2,800.00, which is approximately 10 percent of the IRB payable to the date of hearing, plus interest in accordance with Regulation 664, is reasonable.

ORDER

95In conclusion I order that:

a. The applicant is entitled to an income replacement benefit of $258.64 per week from October 1, 2020 and ongoing, plus interest in accordance with the Schedule.

b. The applicant is not entitled to $1,067.50 for a physiotherapy treatment plan dated July 24, 2019.

c. The respondent is liable to pay an award in the amount of $2,800.00 plus interest in accordance with Regulation 664.