Carl Alleyne v. The Dominion of Canada General Insurance Company (Travelers), 2024 CanLII 70365

Citation: Alleyne v. The Dominion of Canada General Insurance Company (Travelers), 2024 ONLAT 23-005098/AABS

Licence Appeal Tribunal File Number: 23-005098/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:

Carl Alleyne

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Carl Alleyne, Applicant Joseph WL Griffiths, Counsel

For the Respondent: The Dominion of Canada General Insurance Company (Travelers), Doris Joseph Adjuster Sarah Scott, Counsel Anna Dylewski, Counsel Hailey Miller, Law Clerk

Heard by Videoconference: June 3, 2024

OVERVIEW

1Carl Alleyne, (the “applicant,”) was involved in an automobile accident on March 19, 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, The Dominion General of Canada Insurance Company (Travelers) (the “respondent”) 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 (IRB) in the amount of $600.00 per week from January 27, 2023, to present and ongoing?

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

RESULT

3I find that the applicant is entitled to an IRB in the amount of $600.00 per week from January 27, 2023, and ongoing.

4I find that Interest is owing on overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Does the applicant’s chronic pain syndrome effect his employability?

5I find that on a balance of probabilities, the applicant’s accident-related chronic pain with functional impairments causes the applicant to have a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

6Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after 104 weeks of disability. This requires the applicant to show he suffers, because of the accident, a complete inability to engage in any employment or self-employment for which he is reasonable suited by education, training, or experience.

7The applicant submits that he is disabled from working due to a diagnosis of chronic pain which causes him to have sleep disturbances, tension headaches, neck pain, hip pain and sharp back pain. The applicant has been employed for fourteen years by Purolator as a sorter, however the applicant has not returned to work since the accident as this is a physically demanding position and no accommodating positions have been offered to him by his employer. The applicant further submits that that this is the third attempt by the insurer to withhold IRB payments from him, and that his IRB had been re-instated in April 2022, approximately three years after the accident, however the insurer stopped payment in January 2023 but failed to consider or assess him by way of an insurers’ examination for chronic pain syndrome. To this end, the applicant relies on his testimony, the clinical notes, and records of Dr. Campbell (family physician), Dr. Alfonsie (family physician), Dr. Smith (anesthesiologist and chronic pain expert) Dr. Fox (physiatrist) and an MRI from Monfort Hospital.

8The respondent submits that the applicant has healed from his main complaints from the accident which were a fractured wrist, neck and back pain and some psychological issues. The respondent submits that there were gaps in the applicants’ medical records seeking treatment for the injuries sustained in the accident. The respondent further submits that the applicant ought to be able to find other types of employment within his skill sets and that the legal test does not require the same job or wage as a requirement for the legal test for a post 104 IRB according to the Schedule. To this end, the respondent relies on the clinical notes and records of CBI Physiotherapy, a vocational assessment from HVE Healthcare, OHIP summary, an orthopaedic assessment and report from Dr. Yee (orthopaedic surgeon) dated January 11, 2023, and two psychological assessment reports by Dr. Gerber (psychologist) dated November 6, 2020, and January 11, 2023.

9On October 23, 2020, the applicant was assessed by Dr. Gerber, psychologist who completed the insurer’s IE report dated November 6, 2020. At this assessment, the applicant complained of middle to upper back pain, bilateral wrist stiffness, sensitivity to noise, visual problems, tinnitus, balance problems and dizziness, sleep difficulty, reduced appetite, depressive symptoms, anxiety symptoms, and reduced cognitive efficiency. Dr. Gerber administered a personality assessment Inventory (PAI) test, a Collision Fear Questionnaire (AFQ) and a Pain Disability Index (PDI). At this time from a psychological perspective Dr. Gerber opined that the applicant does not meet the criteria for any DSM-5 diagnosis. The applicant reports symptoms of mild depression, anxiety about his ability to support himself financially and in the future, and his heightened pain and disability perceptions are the direct consequence of the injuries sustained in the accident. Dr. Gerber deferred questions related to the applicant’s physical impairments to a medical assessor.

10Dr. Gerber assessed the applicant for a second time on December 9, 2022, and the corresponding report is dated January 11, 2023. At this point Dr. Gerber opined that the applicant’s symptoms do not meet the criteria for any DSM-5 diagnosis. He states that the applicant’s depression and anxiety have decreased, but his pain and disability perceptions have increased since the previous assessment in November 2020. He opined that the applicant’s prognosis for further improvement of his collision related psychological symptoms is guarded, considering the time that elapsed since the March 2019 pedestrian-motor vehicle collision.

11Although I generally accept Dr. Gerbers’s assessment of the applicant, I am not convinced that Dr. Gerber as a psychologist is the proper medical professional for the assessment of Chronic Pain with functional impairments, and in many of the referral questions in the questionnaire from both of his reports he defers the questions to a medical professional. Further, the second assessment is not even complete as the applicant did not complete the Personality Assessment Inventory (PAI) test as he left the office. There is no evidence that an attempt to reschedule the test took place or why the applicant did not complete the remainder of the test.

12In his second report, Dr. Gerber further opined that from a psychological viewpoint the applicant does not suffer a complete inability to engage in any employment or self employment for which he is reasonably suited by education, training, or experience as a direct result of the pedestrian motor vehicle collision. This is inconsistent with his later stated opinion that the applicant would be suited for a sedentary job with few physical demands and by the fact that Dr. Gerber also defers to a vocational assessor. This is not consistent with the applicant’s ability to engage in any employment or self employment for which the applicant is reasonably suited by education, training, or experience. I also find Dr. Gerber does not have the medical expertise to make such a recommendation.

13On September 8, 2022, Dr. Yee, orthopaedic surgeon assessed the applicant by way of insurer examination and completed an orthopaedic assessment report dated January 11, 2023. He notes that the applicant is currently taking muscle relaxants and anti-inflammatory medication. He opines that strictly from an orthopaedic perspective, based on the available documentation and his clinical findings, the claimant has residual symptomatology related to myofascial strains of the cervical and lumbar spine, left distal radius fracture and right wrist strain. Dr. Yee states that his findings today demonstrate tenderness to palpation in the regions of complaint with some restricted range of motion of the left wrist. There are no objective clinical findings to suggest any active radiculopathy or myelopathy. Further Dr. Yee states that strictly from an orthopedic perspective, based on the available documentation and findings, the claimant does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

14I place very little weight on the report from Dr. Yee. Although his opinions are based on solely an orthopedic perspective, Dr. Yee does not address chronic pain syndrome, perhaps correctly as he is not a chronic pain specialist. However, Dr. Yee’s report lists Dr. Gerbers report dated January 11, 2023, as a document reviewed as part of his assessment. This is inconsistent with the timing of the assessments and the reports. Dr. Gerbers second psychological assessment of the applicant was on December 9, 2022, and Dr. Yee’s orthopaedic assessment of the applicant was on September 8, 2022. This equates to approximately three months after the orthopaedic assessment even took place. Coincidentally perhaps both the psychological report and the orthopedic reports are dated completed on January 11, 2023. For these reasons, I placed very little weight on the report from Dr. Yee.

15On April 28, 2021, the applicant’s family doctor Dr. Campbell responded to a letter from the applicant’s employer detailing the applicant’s functional limitations that would limit his ability to work and that funding for physiotherapy or “work hardening” is no longer available, however the applicant has tried to continue the activities at home. Dr. Campbell goes on to say that due to the applicant’s significant functional impairments because of the symptoms that the applicant is experiencing an opinion would be best from a physiatrist.

16On July 14, 2021, the applicant was examined by Dr. Fox, physiatrist, because of his pain. Dr. Fox’s impressions were that the applicant presented with chronic cervical spine, posterior shoulder, and thoracic back pain. He noted that the applicant was taking pregabalin 75 mg and Tylenol as needed. He opted that increasing the dose would be beneficial and recommended cervical facet joint cortisone injections.

17On October 1,2021, the applicant followed up with his family doctor after an emergency room visit at Montfort Hospital on September 5, 2021, for neck pain and lower back pain. His discharge diagnosis from the hospital was acute on chronic back pain and a follow up recommendation for an MRI was advised. The applicant advises his doctor that Pregabalin does not help but Naproxen is ok, and that cyclobenzaprine makes him drowsy and relaxed but does not resolve pain. The main findings of the MRI are that the applicant has mild disk desiccation, severe disk space narrowing in his C4-5 and moderate disk desiccation and severe disk space narrowing in his C5-6. Dr. Campbell also opted that the applicant is experiencing chronic pain syndrome. A referral for a chronic pain specialist was subsequently completed.

18On March 28, 2023, the applicant attended an assessment with Dr. Smith an expert in anesthesiology and chronic pain and provided an in-depth report dated March 29. Dr. Smith based his report on the applicant’s history, physical examination and review of the applicant’s medical brief and concluded that the applicant suffers from chronic neck pain, chronic headaches, chronic low back pain, chronic bilateral wrist pain and psychological/emotional disturbances associated with symptoms of depressed mood, anxiety, and kinesiophobia.

19Dr. Smith further assessed the applicant in accordance with the AMA Guides to the Evaluation of Permanent Impairment, sixth edition (“AMA Guides”) which defines chronic pain syndrome as “pain that continues beyond the normal healing time for the patient’s diagnosis and includes significant psychosocial dysfunction.” Three or more of the following characteristics are required to fulfill the AMA Guides’ definition. They are dependency on prescription drugs or other substances; excessive dependence on health care providers or family; secondary physical deconditioning due to disuse or fear avoidance; withdrawal from social milieu; failure to restore to pre-injury function; and development of psychosocial sequelae. Dr. Smith opines that the applicant meets elements of items two through six of the AMA Guides’ and he concludes that notable features of deconditioning, fear-avoidance and psychosocial factors are all elements that the applicant meets for a diagnosis of chronic pain syndrome.

20Although the AMA Guides’ passages on chronic pain are not binding on this Tribunal, they have been consistently applied as a useful tool in deciding whether an insured person has this condition.

21Based on the medical evidence before me and the applicant’s testimony, I find that the applicant’s chronic pain syndrome will affect his employability. The respondent failed to point me to relevant medical evidence for the symptoms that the applicant is facing daily. Further, the respondent raised questions about the disclosure of prescription summaries and gaps in treatments and some OHIP summaries. However, the respondent did not question the validity or the admittance of these documents as evidence. In any event the applicant has presented a detailed account of the applicant’s accident-related injuries and I accept Dr. Smith’s report as the most credible and in-depth analysis of the applicant’s quest for answers of his accident-related injuries and future prognosis.

22In terms of the applicant having a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience. I accept Dr. Smith’s opinion that the applicant’s pain-related impairments limit the applicant from heavy lifting, overhead lifting, prolonged walking, prolonged sitting, prolonged standing, repetitive bending/pushing/pulling, higher axial impact physical activities and sustained extension or lateral flexion. Further Dr. Smith opines that the applicant has some degree of cognitive impairment related to chronic pain consistent with concentration, forgetfulness and fatiguability. Therefore, I find that the applicant’s chronic pain syndrome will affect his employability.

Vocational Assessment

23I find that on a balance of probabilities the applicant suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

24The applicant submits that after he graduated high school he had worked as a food attendant in a retirement home serving residents their meals and washing dishes afterwards. He worked in this position for eleven years. Following this position he worked in a call centre for a few years as a customer service representative, and subsequently was hired at Purolator and had been a sorter for approximately fourteen years prior to the subject accident. His position involved loading and unloading trucks and managing often heavy freight off the conveyor belt. He testified that he received extra compensation as he was a lead hand for the managers. He submits that due to his functional impairments arising from chronic pain he is disabled from working as he must constantly change positions, from sitting to standing to laying down. Although his preference would be to return to his employment at Purolator, he is unable to do so and has not sought other employment. He asserts that it would be difficult for any employer to deal with his requirements for breaks every half an hour and lacks the attention span to learn a new position.

25The respondent argues that although it may not be possible for the applicant to return to his job at Purolator, there are employment opportunities available for his qualifications. Respondent’s counsel submits that although the applicant may not be able to return to his current employment his employability is not completely compromised as per the Schedule. She further submits that the applicant participated in online Hebrew courses for approximately six months and that his participation in the making of electronic music shows that he can focus, function, and learn. The respondent relies on a vocational assessment report from HVE healthcare assessments.

26The purpose of the vocational assessment is to identify alternate occupations for which the applicant is suited by education, training, work history and transferable skills as well as his demonstrated test scores. HVE healthcare considered the multidisciplinary assessments and reports from the insurers examination reports from Dr. Gerber (psychologist), Dr. Yee, orthopaedic surgeon, and a labour market survey report by Khaleeq Bashiruddin, vocational rehabilitation specialist.

27HVE healthcare identified four positions for direct placement or with a period of on-the-job training that in principle they consider appropriate for the applicant, providing they are within his physical restrictions. The four occupations they refer to are Information Clerk, Production logistics co-ordinator, transportation route and crew scheduler and Dispatcher. Their conclusions are based on three tests completed by the applicant, the Wonderlic personnel test, the career ability placement survey, and the wide range achievement test.

28Although I generally accept that the applicant may very well be physically able to be employed in these areas and even return to his employment at Purolator, I find that the applicant would not have the concentration persistence and pace due to his physical pain and functional impairments to be able to sustain or even complete many of the requirements from the above listed job descriptions. My overall observation of the applicant during the proceeding is that he was truthful and forthcoming, polite and did not shy away from difficult questions. He was able to participate however his visible movements and need for breaks due to his physical pain was notable and consistent with the medical conclusions of Dr. Smith. It is my view that any employer would have a difficult time dealing with the accommodation requirements that the applicant would require to make it through an entire shift even on a part time basis.

29It is also my view that training would be a difficult task for any employer not sympathetic to the applicant’s circumstances not only because of the physical pain but also because of his cognitive limitations. This is consistent with the applicants attempts to learn Hebrew online in a course which consisted of two hours per week of online instruction where he was unable to complete this course. Through the proceeding I also learned that the applicant engaged in electronic music before the accident, however he is no longer able to engage in electronic music and is going to sell the equipment. In my view these are all examples that illustrate that the applicant would have a difficult time learning and maintaining any form of employment.

30I find that on a balance of probabilities the applicant suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the benefit is payable, interest is also payable.

ORDER

[32]

i. I find that the applicant is entitled to a post 104 IRB in the amount of $600.00 monthly from January 27, 2023, and ongoing.

ii. Since the benefit is owing, interest on unpaid benefits to which the applicant has been found entitled is payable in accordance with s. 51 of the Schedule.