Licence Appeal Tribunal File Number: 22-012717/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:
Caralyn Foisey
Applicant
and
Belairdirect
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Richard R. F. Nolin, Counsel
For the Respondent: Robbie Brar, Counsel
HEARD: By way of written submissions
OVERVIEW
1Caralyn Foisey, the applicant, was involved in an automobile accident on March 25, 2019, 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 benefits by the respondent, Belairdirect, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $258.47 per week from December 7, 2020, to date and ongoing?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an IRB, interest or an award under s.10 of O.Reg 664.
4This application is dismissed.
ANALYSIS
The applicant is not entitled to an IRB in the first 104 weeks post-accident
5To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
6The applicant submits that they suffer a complete inability to perform the essential tasks of her employment as evidenced by a s.25 physiatry assessment completed by Dr. Zeeshan Waseem on October 13, 2022. Dr. Waseem found that injuries from the accident substantially interfere with the applicant’s daily activities.
7The respondent relies on a s.44 musculoskeletal assessment report completed by Dr. Michel Denis Joseph Gauthier, physician, on October 29, 2020. Dr. Gauthier found that the applicant does not suffer a substantial inability to perform the essential tasks of her employment.
8The applicant was also assessed for a s.44 functional abilities assessment with Dr. Robert C Fera, chiropractor on September 5, 2019, and January 28, 2020. Dr. Fera noted that his report is of limited value as he was not given an accurate list of functional abilities specific to the applicant’s employment. However, I find Dr. Fera’s report useful to interpret the credibility of the applicant’s presentation of pain and limitation.
9I must note that both Dr. Gauthier and Dr. Fera had concerns with the applicant’s performance and effort during the assessment.
10Dr. Gauthier noted that that the physical findings are out of proportion to the injuries sustained in the motor vehicle accident. He notes inconsistencies such as her ability to sit on the table and reach for her toes, however, she was unable to lie comfortably on her back. He further notes that these inconsistencies make it quite difficult to properly assess the degree of ongoing disability.
11Dr. Fera had similar concerns, noting the applicant cited high ratings of perceived effort at initial loads in lifting and carrying without concomitant indicators of maximal exertion. There were no signs of accessory muscle recruitment, adaptive changes in posture, increased respiration, nor physiologically relevant evidence of increased heart rate that one would anticipate in an individual working with maximal effort. Her signs of submaximal effort appeared to affect the reliability of the data obtained in the evaluation.
12Dr. Fera further notes that the applicant demonstrated inconsistent limitation of cervical and shoulder mobility, with notable increases in overall cervical and shoulder motion when distracted.
13I have compared the observations of Dr. Waseem, Dr. Fera, and Dr. Gauthier to further analyze the consistencies between the three independent observations.
| Area Tested | Dr. Waseem | Dr. Gauthier | Dr. Fera |
|---|---|---|---|
| Cervical Spine | Pain noted on palpation Normal flexion and extension range of motion 25% reduction in cervical rotation and lateral bending Muscle stiffness, increased muscle tone and trigger points were notable. Kemp’s test was negative |
Normal range of motion No Tenderness Normal Musculature |
Cervical movements moderately limited in all directions with pain at end range in all planes. Kemp’s test promoted reports of pain |
| Thoracic Spine | No pain Normal range of motion Normal musculature |
Normal range of motion No Tenderness Normal Musculature |
Not tested |
| Lumbosacral Spine | No pain with palpation Normal range of motion in extension and bilateral bending Normal musculature Lumbar flexion reduced 25% |
Unable to complete examination due to pain Was able to sit on table with both legs outstretched and reach fingertips to ankles |
Marked reduction of lumbar movements in all directions Vocalized pain during all movements and range |
| Upper Extremities | No pain with palpation Normal range of motion |
Normal range of motion Normal strength No tenderness |
Shoulder movements moderately limited with pain provoked by motion in all planes |
| Lower Extremities | No pain with palpation Normal range of motion |
Unable to complete due to pain | Functional movements of lower extremities. |
14I note several inconsistencies in the applicant’s condition from the various assessors.
i. Cervical movements were moderately limited with Dr. Fera but only cervical rotation was limited with Dr. Waseem. Whereas Dr. Gauthier found normal range of cervical motion.
ii. Kemp’s test was negative with Dr. Waseem, but caused pain with Dr. Fera
iii. Dr. Gauthier found the cervical spine had normal musculature whereas Dr. Waseem found increased muscle tone and trigger points.
iv. Dr. Fera noted that there was lumbar range of motion was limited in all directions and painful, whereas Dr. Waseem noted no pain with palpation, and only flexion was reduced by 25%. Dr. Gauthier was not able to complete the examination of the lumbar spine because it was too painful, however the applicant was able to sit on the table with both legs outstretched and reach her toes.
v. Both Dr. Gauthier and Dr. Waseem found the applicant had normal range of motion in her shoulders, however, Dr. Fera noted the shoulder movement was moderately limited with pain when moved in all directions.
15The movements tested, should elicit similar responses with each assessor. I note that some movements cause pain or are limited with one assessor and are normal with another. This leads me to question the credibility of the applicant’s presentation.
16The fact that the applicant presents differently to three different assessors undermines her claim to injuries. Especially, as Dr. Fera notes, the applicant’s movements and effort were different when distracted.
17For this reason, I give higher weight to the reports of Dr. Guathier and Dr. Fera as they note the applicant is not participating at full effort in the assessments and behaviour and injuries are inconsistent.
18Therefore, I find, on the balance of probabilities, that the applicant has not proven physical injuries sustained in the accident which cause a substantial inability to perform the essential tasks of her employment.
19The applicant further submits that there are psychiatric factors that impede her ability to perform the tasks of her employment. The applicant relies on a psychiatric evaluation of Dr. Zohar Waisman conducted on September 25, 2022.
20The respondent submits a psychological assessment conducted by Dr. Trevor Deck on November 1, 2021.
21Dr. Waisman diagnosed the applicant with persistent depressive disorder with persistent major depressive episode, moderate. This diagnosis is based on the somatic symptoms that include pain and fatigue that are distressing and result in significant disruption of daily life. He further diagnosed her with post-traumatic stress disorder. He is of the opinion that these diagnoses impair the applicant’s ability to participate in the essential tasks of her employment.
22Dr. Deck diagnosed the applicant with major depressive disorder with panic attacks. However, Dr. Deck is of the opinion that the applicant is able to complete the essential tasks of her employment with this psychological diagnosis.
23Given that Dr. Waisman’s diagnosis is reliant on the chronic pain the applicant presents with and the impact of that pain on her tasks of employment, I must take this opinion with a grain of salt. As noted above, the applicant has presented her pain in very inconsistent ways. Movements that cause extreme pain for one assessor, cause no pain with others. Ranges of motion are reduced in one assessment and normal in another. I find that the applicant is less than credible when describing her pain and thus, I give limited weight to Dr. Waisman’s diagnosis.
24I give higher weight to the diagnosis of Dr. Deck. The applicant can complete the essential tasks of her employment despite her psychological diagnosis and is therefore not entitled to an IRB.
The applicant is not entitled to a continuing IRB past 104 weeks post-accident
25To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
26As I have found that the applicant can complete the essential tasks of her employment there is no basis for me to assess the stricter test that applies to any employment for which she is suited. The applicant is not entitled to a continuing IRB post-104 weeks.
Interest
27As no benefits are owing, no interest is payable.
Award
28As I have found no benefits to be unreasonably withheld, there is no basis for me to consider an award under s.10 of O.Reg 664.
ORDER
29For the reasons above the applicant is not entitled to:
i. An income replacement benefit
ii. Interest; and
iii. An award under s.10 of O.Reg 664
30This application is dismissed.
Released: December 16, 2024
__________________________
Julian DiBattista
Vice-Chair