Licence Appeal Tribunal File Number: 21-014745/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:
Adelaide Boachie-Danquah
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Adelaide Boachie-Danquah, Applicant Anindita Asaduzzaman, Counsel
For the Respondent: Frank Comella, Counsel
Hearing Reporter: Corey Salazar
Heard by Videoconference: April 17, 19, 20 and 21, 2023
OVERVIEW
1Adelaide Boachie-Danquah, the applicant, was involved in an automobile accident on October 28, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied income replacement benefits (“IRBs”) by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent paid IRBs to the applicant until November 30, 2019. It advised the applicant in a letter dated October 16, 2019 that its assessors found her ineligible and that the applicant’s IRBs would end as of November 30, 2019.
ISSUES
3The issues in dispute are:
I. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from November 30, 2019, to date and ongoing?
II. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to IRBs.
5No interest is payable.
ANALYSIS
The post-104 test is the correct test to be applied in this case
6The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident (“pre-104 test”).
7To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience, as set out in s.6(2) of the Schedule (“post-104 test”).
8In both cases, the applicant has the onus of proving on a balance of probabilities that they are entitled to IRBs for the period in question.
9In this case, the respondent paid IRBs to the applicant from the date of the accident, October 28, 2017, until November 30, 2019. That is past the 104-week mark and as a result, the applicant’s claim for IRBs is for the post-104 week period, where the post-104 test applies.
10The applicant submitted that even though she received IRBs for more than 104 weeks past the date of the accident, the pre-104 test still applies because the respondent has not completed post-104 assessments. She further submitted that the applicant has met her onus of proof on a balance of probabilities that she is substantially unable to perform the essential duties of her employment due to her physical and psychological injuries.
11The respondent submitted that there is some evidence presented by the applicant that addresses the post-104 test and that the Tribunal must apply that test in making its determination. I agree with the respondent. Section 6(2) of the Schedule is clear. Whether or not the respondent has completed post-104 assessments is irrelevant. Since the applicant has received IRBs past the 104- week period, the post-104 test applies.
12The applicant and the respondent both presented evidence and made submissions on the issue of IRBs using the pre-104 test. Since I find that the post-104 test applies in this case, I must consider whether the applicant meets the stricter post-104 test based on the evidence presented, i.e. whether the applicant has proven on a balance of probabilities that since November 30, 2019, she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
The applicant has not proven that she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience
13For the reasons that follow, I find that the applicant has not met her burden of proof on a balance of probabilities that since November 30, 2019, she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
14The applicant testified that she is almost 44 years old, single, with a 3 year old daughter. She moved to Canada from Ghana in 1992 or 1993 and attended high school in Canada. During and after high school she worked at Tim Hortons, as a server at Pizza Hut, doing general labour and in retail. She attended college and obtained a Social Service Worker Diploma from 2002 to 2004 while working part time at a shoe store. The applicant then attended university and took Sociology and obtained a certificate in Indigenous Studies.
15Prior to the October 28, 2017 accident (“subject accident”) the applicant testified that she was working as a part time sales associate at Ted Baker Clothing store, a high end luxury retailer, between 8 and 24 hours per week. Essential tasks included interacting with customers, putting out merchandise, vacuuming, standing, cleaning, cashier, and putting out the garbage.
16At the same time, the applicant also worked full time as a program worker for the Jane Finch Community and Family Centre (“JFCF”) starting in April 2004, where she dealt with youth who were new to Canada. She assisted them with mental health, after school programs, promoting healthy lifestyles and sexual health, preparing snacks and meals, doing groceries, and cooking. Just prior to the subject accident, on October 2, 2017, the applicant accepted a promotion doing an adult mental health program, where she cooked and did groceries for them.
17The applicant completed a Bachelor of Arts degree in Sociology while working at JFCF and then applied to the Master’s Program in Critical Disability Studies where she anticipated graduating in December 2017. During the time of the subject accident, the applicant was writing her final paper for her Master’s degree. She testified that she aspired to work in a community centre after graduating or would return to obtain a PHD and teach.
18The applicant testified that during the subject accident, her vehicle was struck from behind on Highway 401 trying to merge onto Highway 400. Her vehicle had been stopped at the time because traffic was heavy. Her head hit the steering wheel and then came back and hit the seat. As a result, she began to experience neck and back pain, anxiety and nervousness driving, as well as flashbacks.
19The applicant saw Dr. Jordan Solmon for her accident-related complaints on October 31, 2017. At the time, he had been her family doctor for approximately 18 years. A review of Dr. Solmon’s clinical notes and records indicates that on October 31, 2017, Dr. Solmon assessed the applicant with cervical strain, upper and lower back strain, myofascial h/a, R&L RTC strain, R&L hip pain/strain, chest wall soft tissue injury, PTSD, phobic avoidance driving and insomnia. He prescribed pain medication and a cervical collar. The applicant testified that she continued to see Dr. Solmon on a weekly or bi-weekly basis for her accident-related complaints. Clinical notes and records were provided up to March 27, 2018. No clinical notes and records were provided from Dr. Solmon with respect to the period of time the applicant is claiming IRBs, i.e. November 30, 2019 and ongoing.
20The applicant testified that she has not been able to work in any capacity since the October 2017 accident. If she was able to return to work, she would. She had accepted a promotion in the month prior to the accident and was on track to continue with her education. She wanted to eventually get into a management position at JFCF. Following the subject accident, she was unable to complete her Master’s degree. She could not complete her final paper as a result of sleeping problems, constant pain and an inability to concentrate.
21In cross examination the applicant advised that her employer JFCF is aware that she wants to return to work but they have not reached out to her with a formal return to work plan. She has not had any recent discussions with her supervisor and is not sure if her job would be available if she could return to work. She testified that she has not made any attempt to return to work because she is not well and she has not talked to a doctor about a return to work plan for the same reason.
22Dr. Solmon provided the applicant’s employer with three medical certificates indicating that she was unable to work. The first one is dated November 10, 2017 and indicates that she is not able to work in any capacity, due to a medical condition, for 5 weeks and until reassessed. The second certificate dated February 2, 2018 indicates that the applicant will be absent for an indefinite period of time, “due to medical condition.” The most recent one is dated January 29, 2021, where Dr. Solmon states that the applicant is unable to work for an indefinite period of time “due to medical condition.” The certificates do not describe the medical condition, nor do they say that the condition is as a result of the subject accident.
23The only medical certificate provided by the applicant’s family doctor, Dr. Solmon, after November 30, 2019, does not specify that the applicant’s inability to work is related to the accident, and simply states that the applicant is “unable to work.” It does not indicate that she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
24In cross-examination the applicant was asked if her doctor ever specifically said that she was unable to return to work. The applicant did not directly answer this question, but responded that she had a discussion with the director of operations at work after the subject accident and she was advised that the employer wanted her to fully recover and not to just come back for a couple of days. The applicant did not recall if she ever had any discussions with her employer about a modified return to work plan.
25When asked specifically why she could not return to work, the applicant testified that she is unable to work due to the following:
i. she is not mentally fit;
ii. some medications make her drowsy;
iii. she can only sit or stand for 15 to 20 minutes, after which time she feels constant sharp upper and lower back pain, leg and shoulder pain;
iv. pain and anxiety causes sleep deprivation;
v. migraines;
vi. nightmares and flashbacks three times per week or more;
vii. panic attacks;
viii. anxiety when driving and somewhat as a passenger;
ix. depression (constant crying, anxiety, inability to socialize with friends and family, stays home most of the time); and
x. feelings of worthlessness.
26The applicant advised that she is going through her own issues and is not in the right state of mind to work with people with mental health issues. She testified that she sees Dr. Solmon on a weekly or bi-weekly basis for her injuries related to the subject accident. He has not referred her to a neurologist or a psychologist. She is not seeing any other doctors on a regular basis for her accident-related injuries and she has not received any form of treatment since last year.
27A Psychological Assessment Report dated April 27, 2018 was prepared by Dr. Silvia Tenenbaum, Psychologist, and filed by the applicant. Dr. Tenenbaum diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia, and Somatic Symptom Disorder. She provided the opinion that the applicant experienced substantial impairment caused by or related to psychological, emotional, or cognitive factors for the following activities: activities of normal living and attending school. She did not provide an opinion in support of the applicant’s complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
28Dr. D. J. Ogilvie-Harris, Orthopaedic Surgeon, prepared a report dated January 16, 2020 after physically assessing the applicant and reviewing her medical history. Dr. Ogilvie-Harris found that the applicant sustained soft tissue injuries as a result of the October 28, 2017 accident and that she has features of chronic pain syndrome with central sensitization. As a result of the applicant’s physical pain and limitations, Dr. Ogilvie-Harris concluded that the applicant was unable to return to the employment and study tasks that she was doing prior to the accident. The doctor further added that the applicant had a complete inability to engage in any employment for which she is reasonably suited by education, training or experience at that time. Dr. Ogilvie-Harris was of the view that the applicant’s ability to return to work was guarded. The doctor discussed studies and statistics that indicate that patients with chronic pain syndrome who are off work more than two years have a very low chance of returning to the labor market and they find it more difficult to get and keep jobs. Dr. Ogilvie-Harris felt that, from an orthopaedic point of view, the applicant’s pain-related limitations precluded her return to gainful employment at that time and will significantly limit her ability to return to the labor market in the future and to be a competitive worker.
29Although Dr Ogilvie-Harris concluded that the applicant had a complete inability to engage in any employment which is reasonably suited by education, training, or experience, the doctor then described the applicant’s ability to return to work as “guarded” and significantly limited. The doctor made a blanket statement about the applicant’s general inability to work, without addressing the applicant’s specific inability to engage in any employment for which she is reasonably suited by education, training or experience.
30Dr. Zohar Waisman, Psychiatrist, assessed the applicant on October 16, 2019 and prepared a Psychiatric Assessment Report dated December 9, 2019. He assessed the applicant for approximately one hour, with an additional 30 minutes to fill out questionnaires, and also reviewed some medical information provided to him. Dr. Waisman diagnosed the applicant with Somatic Symptom Disorder with predominant pain and Major Depressive Disorder. The doctor concluded that, as a result of the subject accident, the applicant was no longer suited to her pre-accident employment.
31In the report, when asked whether the applicant would be capable to return to pre-accident employment or alternative types of employment, Dr. Waisman opined that the applicant suffered from a complete inability to return to any type of employment consistent with her education and training. In coming to this conclusion, the doctor indicated that the applicant’s performance would be exacerbated by pain, fatigue and mood, which may result in her inability to maintain positive work relationships. Dr. Waisman indicated that much depends upon workplace characteristics, capacity to establish work-lifestyle balance, supports in the home and the community, healthcare support, as well as the individual’s character and resiliency on contending with the multitude of daily complications faced in daily life.
32Although Dr. Waisman came to the conclusion that the applicant suffered a complete inability to return to any type of employment consistent with her education and training, his explanation addressed the applicant’s symptoms possibly affecting her ability to maintain positive work relationships and he further indicated that much was dependant on other factors, as outlined above. Dr. Waisman did not explain or specifically address why this applicant is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
33Dr. Waisman testified at the hearing as well. He discussed why the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment at the clothing store and at JFCF. He was then asked whether at the time of his assessment, the applicant would have been able to engage in any kind of employment. He responded that this would have required attendance on a regular basis, persistence, focus, ability to deal with stress, and that the applicant would not have been able to cope. Again, Dr. Waisman did not address specifically why the applicant is completely unable to return to any type of employment consistent with her education and training, but rather spoke in general and vague terms.
34Dr. Shawn Scherer, Psychologist, testified. He also prepared a Psychovocational / Rehabilitation Evaluation dated February 8, 2022 after his examination of the applicant on December 21, 27 and 30, 2021. He concluded that the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment, and similar types of employment. He further concluded that at that time, the applicant met the test of complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Dr. Scherer noted that social work involves a high level of cognitive engagement and can be quite stress laden. Further, the applicant would have other difficulties working in this area, such as prolonged sitting, prolonged or complex reading, substantive cognitive effort and lack of confidence. Dr. Scherer went on to say that mood issues would best preclude positions with significant stress, adherence to tight deadlines, or fast pace of work. During his testimony, Dr. Scherer further indicated that when he saw the applicant, he could not identify any occupations that she would be able to do on a consistent basis, either part time or full time.
35Dr. Scherer conducted his assessment of the applicant for a period of 9-10 hours in total, including assistance from other assessors. His assessment is based on the applicant’s self-reporting and completion of forms and he testified that he can only base his opinion on what other examiners saw and concluded in earlier years and on what the applicant told him and what he saw in the clinical records.
36In order to determine whether the applicant meets the complete inability test, I must consider the totality of the medical and documentary evidence. The burden of proof is on the applicant. The only convincing medical evidence provided by the applicant in support of the complete inability test is that provided by Dr. Scherer. I am not persuaded by the evidence of Dr. Scherer, who assessed the applicant for a total of 10 hours. Dr. Solmon, the applicant’s family doctor of almost 23 years at the time of the hearing, would be in the best position to provide evidence in support of the applicant’s claim. Although the applicant testified that she saw Dr. Solmon on a regular basis up to the time of the hearing, the applicant did not file any clinical notes and records from Dr. Solmon with respect to the time period the applicant is claiming IRBs, i.e. November 30, 2019 and ongoing. Further, Dr. Solmon did not provide an opinion that the applicant is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
37I must determine whether the applicant has proven on a balance of probabilities that since November 30, 2019, she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience. The only evidence I have from the applicant’s family doctor during that time period is a medical certificate dated January 29, 2021, where Dr. Solmon states that the applicant is unable to work for an indefinite period of time “due to medical condition.” The certificate does not describe the medical condition, nor does it say that the condition is as a result of the subject accident.
38Both the applicant and the respondent provided submissions with respect to the applicant’s eligibility to receive IRBs based on the substantial inability pre-104 test. As outlined above, since I find that the post-104 test applies in this case, I must consider whether the evidence presented by the applicant meets the stricter post-104 test. Accordingly, I must consider whether the applicant has proven on a balance of probabilities that since November 30, 2019, she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience. I find that, on a balance of probabilities, the applicant has not demonstrated this.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No IRBs are payable and owing, therefore the applicant is not entitled to interest.
ORDERS
40The applicant is not entitled to IRBs.
41No interest is payable.
Released: August 14, 2023
Laura Goulet
Adjudicator