Citation: Ibeska v. Aviva General Insurance Company, 2024 ONLAT 22-010720/AABS

Licence Appeal Tribunal File Number: 22-010720/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:

Valmira Ibeska

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Craig Mazerolle

APPEARANCES:

For the Applicant: Sam C Pitaro, Counsel

For the Respondent: Kevin So, Counsel

HEARD: by Videoconference: January 8 – 10, 2024

OVERVIEW

1Valmira Ibeska, the applicant, was involved in an automobile accident on May 10, 2020, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Following a videoconference hearing held from January 8 – 10, 2024, the Tribunal sent a letter to the parties (dated May 14, 2024) informing them that the adjudicator who conducted the videoconference hearing would be unable to provide a decision. The parties agreed to having a new adjudicator review the existing record, including the recording of the hearing and records that were made exhibits at the hearing, in order to render a decision. On May 27, 2024, the respondent provided the Tribunal with a copy of the audio recordings from the hearing.

ISSUES

3During the hearing, the applicant withdrew her request for an award under O. Reg. 664. She also restricted the timeframe of the income replacement benefit (“IRB”) claim to the start of her post-accident employment. These changes mean the issues in dispute are:

i. Is the applicant entitled to an IRB in the amount of $400.00 per week from October 4, 2020 to September 18, 2023?

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

RESULT

4The applicant has established entitlement to an IRB in the amount of $400.00 per week from October 4, 2020 to June 2, 2023. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.

ANALYSIS

5I conclude that the applicant has established that she is entitled to payment of the IRB from October 4, 2020 to June 2, 2023.

6Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. This test becomes more stringent after 104 weeks post-accident, as the insured person must then show a “complete inability” to perform any role that they are reasonably suited to perform by way of experience, training, and education. The onus is on an applicant to demonstrate (on a balance of probabilities) entitlement to the IRB under these two tests.

7In this case, the 104-week mark post-accident is May 10, 2022, so both tests apply to the applicant’s IRB request.

Pre-104 Week IRB – Substantial Inability

8To apply the “substantial inability” standard, the Tribunal must determine:

(a) What were “the essential tasks” of the pre-accident employment?

(b) What, if any, impairments were caused by the accident?

(c) Did the applicant’s accident-related impairments cause a “substantial inability” to perform these “essential tasks” of employment?

9The applicant is basing her claim for the pre-104 week IRB on her pre-accident employment as a cashier at a grocery store.

10Starting with “the essential tasks”, I find the applicant’s testimony and the respondent’s medical evidence provide a comprehensive account of the pre-accident employment. Specifically, the applicant testified that she performed three roles: cashier, customer service employee, and an attendant for a series of self-checkout lanes. Common themes from her testimony were the high amount of stress and the high level of concentration she needed to perform these roles, e.g., addressing difficult customers, managing multiple self-checkout lanes (all while checking for theft), handling money, etc.

11From a physical perspective, the applicant noted that she was required to stand for most of her eight-hour shifts. She also testified that the store sold furniture, housewares, etc., so she was expected to handle objects of varying weights. The respondent’s kinesiology assessor, David Sewell, relied on these points in his Physical Demands Analysis to conclude the job fell within the “Medium physical demand level” (report dated September 28, 2020).

12There was some disagreement between the parties over the extent of the job’s physical nature, such as the frequency that she had to lift items (versus relying on other staff), her ability to use a conveyor belt to move items at the cash register, etc. However, as testified by the applicant and found by Mr. Sewell, I conclude that there was a non-trivial physical element to this job.

13In sum, I find maintaining emotional regulation and concentration, standing, and handling objects of varying weights over an extended period together comprised the “essential tasks” of her pre-accident employment.

14Turning to the impact of her accident-related impairments, the applicant argues the accident caused her physical and psychological impairments that significantly impacted her ability to work. The applicant cites records and reports from treating and assessing practitioners to show that her career prospects were derailed by the physical pain and psychological distress she experienced. The respondent disagrees, claiming the applicant has not put forward a sufficient evidentiary basis to support her position. For instance, the respondent highlights a lack of accident-related complaints about work being made to her family physician, Dr. Mustafa Kamouna, as well as her decision to not file an OCF-3 for the hearing.

15I find the applicant has established an accident-related, psychological impairment. First, the applicant’s testimony provides a compelling account of her psychological distress following the accident. In her testimony, the applicant provided a comprehensive description of how the accident impacted her psychological and cognitive functioning. These impacts included: noticeable changes to her level of concentration; driving restrictions (including no highway driving); low level of motivation and feeling lost, etc. The applicant was then open during cross-examination to accepting when she may not have reported certain symptomology during the years following the accident—a forthrightness that adds credence to the account presented during this testimony.

16The applicant’s testimony is then corroborated by the parties’ medical records. For instance, in a report from the respondent’s psychological assessor, Dr. Robert Woods (dated September 28, 2020), the applicant received the following provisional diagnosis:

Provisional DSM-5 diagnosis is given above as (symptoms of) Adjustment Disorder with Anxiety, Acute and Unspecified Anxiety Disorder. In the examiner’s opinion the claimant’s Adjustment Disorder symptoms are primarily a result of the subject accident.

The “provisional” nature of the diagnosis arose from the assessor’s concerns about the validity testing completed during the assessment, though he concluded that an adjustment disorder is “generally consistent with the ‘mechanism’ of the subject accident as explained and understood during this examination”. I also note that the psychological and cognitive complaints made during this assessment mirror the applicant’s testimony, e.g., sleep issues, anxiety, problems with concentration, etc.

17I do recognize that Dr. Woods concluded: “From a psychological perspective… there are no obvious or significant barriers to complete restoration of the claimant’s pre-accident activities of daily life, including employment.” However, I also observe that this assessor found an “objective account of the essential tasks” of the applicant’s employment was outside of his “scope of clinical practice”. Therefore, while he listed a number of the tasks associated with the pre-accident employment, I find his conclusions must be understood within the confines of the assessor’s noted limitations.

18Further support for a psychological impairment can then be found in the notes from the occupational therapist the applicant met with in the weeks following the accident. In the note from their first visit on May 21, 2020, the occupational therapist wrote the applicant was “more forgetful than usual” and she was having sleep issues. The applicant noted some improvement during the second visit on June 4, 2020, but the occupational therapist wrote she was “still anxious” and had a “loss of appetite”. Moreover, the occupational therapist wrote the applicant had forgotten this second appointment. Though this symptomology is not on the severe end of psychological impairments, these reports show the applicant’s psychological complaints arose shortly after the accident. These notes also align with the complaints made by the applicant during her testimony at the hearing.

19Overall, I find these records and the applicant’s testimony together establish that she sustained a psychological impairment. I further find the respondent’s arguments about the lack of psychological complaints made to the family physician and the absence of an OCF-3 do not upend these findings. In addition to the fact there is a note from the family physician where she reported significant psychological complaints linked to the accident (dated February 18, 2022), I find on a balance of probabilities that there is a sufficient evidentiary basis to determine that the applicant has a psychological impairment.

20Following my finding the applicant sustained a psychological impairment, I am also satisfied that this impairment caused a substantial inability to perform the essential task of maintaining emotional regulation and concentration over an extended period. As noted above, a significant part of the applicant’s employment involved managing customer demands in a variety of stressful settings. For instance, the applicant testified that she had to maintain her composure when customers were difficult. She also had to supervise a series of self-checkout lanes—another form of social interaction that would require a calm demeanour and a sustained level of concentration (especially if there was suspicion of theft).

21With these requirements in mind, I accept that the applicant’s psychological impairment would substantially interfere with this work. As the applicant testified, she found her low mood and motivation made it difficult to interact in a positive manner with customers. I also accept that this psychological distress could make it difficult to maintain the level of concentration needed to perform the essential tasks of the employment over an eight-hour shift.

22There was some discussion at the hearing regarding the applicant’s attempted return to work at the grocery store following the accident. Specifically, the applicant returned to the store for a four-hour shift in July 2020—a shift she said was difficult to complete. There is some incongruous medical evidence from a treating physiotherapist, Andrew Hill, who reported she continued to work following this shift (report dated July 22, 2020). However, I find the applicant’s pay stubs from the second half of 2020 show that this shift was likely her only post-accident work at the store. I find this lack of further effort to resume her pre-accident role provides additional support for the position that her psychological impairment caused a substantial inability to perform these tasks.

23Taken together, I find the applicant has established on a balance of probabilities that she sustained an accident-related impairment that resulted in a substantial inability to perform the essential tasks of her pre-accident employment.

Post-104 Week IRB – Complete Inability

24To determine entitlement past the 104-week mark post-accident on May 10, 2022, the Tribunal must ask the following questions when applying the “complete inability” test:

(a) What employment or self-employment is the applicant “reasonably suited by education, training or experience”?

(b) What, if any, impairments were caused by the accident?

(c) Did the applicant’s accident-related impairments cause a “complete inability” to perform any “reasonably suited” employment?

25The assessment of the employment or self-employment that an insured person is “reasonably suited” to perform involves an appraisal of one’s work history, education, and training. Extensive testimony was provided by the applicant about her work history and education. Aside from a manufacturing job in the summer of 2017 and a four-month stint at a coffee shop in 2019, the applicant’s pre-accident employment consisted of her work at the grocery store. Starting with a few hours a week at the grocery store in 2014, the applicant eventually progressed to the full-time hours and the three roles detailed above.

26Then, aside from the one shift in July 2020, the applicant did not work again until September 2023 when she started as a lab technician. This is the job she held at the time of the hearing. According to her testimony, the role requires her to prepare and sort food samples in a manner that ensures the laboratory’s customers receive the correct form of testing.

27Regarding education and training, the applicant testified that she completed a three-year advanced biotechnology college program between September 2016 and April 2019. She also attended one semester of a pre-health college certificate, but she did not finish this program.

28Taken together, I find the applicant’s years of working in a retail setting—along with her recent job as a lab technician—mean she is reasonably suited to employment and self-employment that mirror this kind of work. Therefore, in light of my findings above, I find this employment would involve concentration and the performance of repetitive tasks over an extended period. I then further find that the inability to maintain one’s emotions and concentration would completely inhibit the ability to perform this kind of employment and self-employment.

29As recognized by the applicant in closing submissions, a question then arises over whether, and to what date, the psychological complaints that caused the applicant’s substantial inability persisted into the post-104 week period. Specifically, though the applicant may argue her performance at the lab has not been perfect and she requires accommodations, I still find the ability to work as a technician up to the hearing means that any complete inability that existed after the 104-week mark had eventually resolved itself. For the following reasons, I find the applicant’s evidence establishes that a complete inability existed after the 104-week mark, but it was resolved as of June 2, 2023.

30To start, strong evidence for the continuing nature of the pre-104 week psychological complaints can be found in the report from the respondent’s assessor, Dr. Cheryl Bradbury (dated February 3, 2023). Assessing the applicant in January 2023, Dr. Bradbury recorded above average results for anxiety and depression on the Pain Patient Profile (“P3”), along with elevated scores on the depressive scale on the Personality Assessment Inventory. I find these results provide compelling evidence that the applicant’s psychological complaints persisted past the 104-week mark.

31Further, the applicant’s assessor, Dr. Alfonso Marino, reported similar results on the P3. During his assessment several months earlier, the applicant scored in the above average range for depression and anxiety. She also had severe scores on the Beck Inventories of Depression and Anxiety.

32Finally, in a July 2022 discharge report from a mental health clinic, the applicant was found to have symptomology that “exceeds the scope of the services offered” at that clinic, namely, her psychological complaints exceeded the scope of “group based psychotherapy for mild-moderate depression/anxiety/stress”. The applicant also had severe scores on all three of the scales used by the clinic, and she “endorsed active trauma symptoms including nightmares and vivid memories”. The applicant linked these symptoms to the accident.

33These reports together establish that the same kind of emotional difficulties that affected the applicant prior to the 104-week mark continued past this date. For the reasons noted above concerning the substantial inability standard, I can conclude that her emotional dysregulation would cause a complete inability to perform any form of employment involving concentration and the performance of repetitive tasks over an extended period.

34I am then satisfied that the applicant started to recover from this psychological distress (and, in turn, began to move past the “complete” nature of her inability to work) in June 2023. The basis for this finding is the session notes from the applicant’s psychological treatment provider from the first half of 2023. I place significant weight on these records, because they present a detailed account of the applicant’s distress and eventual recovery from this distress. Starting with their first session on February 10, 2023, the treatment provider details the applicant’s complaints and life events, as well as the tools and strategies that the pair used to help manage her stress and anxiety. The note from the June 2, 2023 appointment also, importantly, lists when the applicant first felt ready to start looking for work—efforts that would later lead to her role as a lab technician. Therefore, when I contrast this stated goal of returning to work against the significant psychological distress recorded by Drs. Marino and Bradbury in the months prior, I find these notes provide a sufficient basis for establishing that the applicant was ready to return to reasonably suited employment in and around June 2, 2023.

35There was significant discussion at the hearing about the reliability of the report from the applicant’s chronic pain specialist, Dr. Leon Rivlin (dated August 29, 2023). Specifically, while the applicant highlights the report as evidence that she continued to meet the complete inability standard in the weeks leading up to her return to work, the respondent contends the opinion is unsupported. For instance, the respondent argues Dr. Rivlin only cites two records from Dr. Kamouna, and he did not ask about her work history and education. I find the lack of explicit discussion of the applicant’s work history and education limits the value of Dr. Rivlin’s opinion for this stage of the analysis. Specifically, by seemingly basing his finding of “complete inability” on the applicant’s likely challenges in “any workplace”, I find his lack of specificity is not compelling. However, even without this opinion, I still find there is a sufficient basis to find the applicant has met her onus to demonstrate a complete inability, though I do not accept that this complete inability continued through to the date of this assessment on July 17, 2023. As set out above, I find that the applicant was able to resume employment as of June 2, 2023.

36There was no dispute at the hearing concerning the quantum of the IRB, so I find that the applicant is entitled to an IRB in the amount of $400.00 per week.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.

ORDER

38I make the following orders:

i. The applicant is entitled to an IRB in the amount of $400.00 per week from October 4, 2020 to June 2, 2023.

ii. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.