Citation: Gagne v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-002591/AABS

Licence Appeal Tribunal File Number: 23-002591/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:

Mike Gagne

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: John W. Wowk, Counsel

For the Respondent: Morgan A. MacDonald, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mike Gagne ("the Applicant") was involved in an automobile accident on September 14, 2019, and sought benefits from Wawanesa Mutual Insurance Company ("the Respondent") 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2In return, the Respondent claims a repayment of IRBs paid to the Applicant during a period when he returned to work.

ISSUES

3The issues in dispute are:

i. Is the Applicant entitled to income replacement benefits in the amount of $400.00 per week for the period from December 16, 2021 to-date and ongoing?

ii. Is the Respondent entitled to a repayment in the amount of $1,200.00 relating to its payment of IRBs to the Applicant during the period from May 3 to May 24, 2021?

iii. Is either party entitled to interest?

RESULT

4The Applicant is entitled to IRBs in the amount of $400.00 per week, for the period from December 16, 2021 to-date and ongoing, subject to deductions for post-accident income earned during the period, pursuant to section 7(3) of the Schedule. The Applicant is entitled to interest on the amounts payable to him.

5The Respondent is not entitled to a specific repayment of IRBs, but is entitled to deduct 70% of the Applicant's post-accident earnings from the amount payable.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck by another vehicle while making a turn on a rural highway. He sought no medical attention at the time of the accident but went to the hospital two days later with right shoulder pain and tingling, as well as a swollen nose. He was examined at the hospital, diagnosed with a muscle strain, given pain medication, and discharged.

7The Applicant's shoulder pain persisted, and he was referred for an ultrasound on November 25, 2019. The results showed that the Applicant has a mild supraspinatus and subscapularis tendinosis, and mild subacromial/subdeltoid bursitis, but no tears were demonstrated.

8The Applicant was receiving Employment Insurance ("EI") benefits at the time of the Accident. He continued to collect those benefits following the accident until they were discontinued, on July 2, 2020.

9The Applicant submitted a disability certificate on September 17, 2020. The disability certificate was completed by the Applicant's family physician, Dr. U. Barry, and dated July 22, 2021. The document states that the Applicant is a machinist and his work requires heavy lifting, transferring heavy loads, and working overhead with his arms raised, and that the Applicant is unable to do this due to pain and restriction of movement.

10The Respondent started to pay IRBs to the Applicant following receipt of the disability certificate.

11On May 3, 2021, the Applicant started working as a service technician. He was employed in that role until June 16, 2021, when he was dismissed by the company during his probationary period. Notably, the Applicant missed four days of work during this brief service time. The clinical notes and records ("CNRs") from Dr. Barry indicate that the Applicant absence from work was related to sensitive familial issues that are unrelated to the accident.

12The Applicant accepted an offer for a new position as a journeyman machinist on July 10, 2021, and started employment in that role on or around October 4, 2021. The new position was for a fixed term that was scheduled to end on April 1, 2022. Though, the records before me suggest that the Applicant stopped working in this role on December 4, 2021.

13Around the same time, the Respondent had the Applicant assessed to determine his ongoing eligibility for IRBs. The Applicant's IRBs were stopped on December 16, 2021, following the assessments, based on the opinions of the assessors.

14The Applicant re-employed in August 2022, as a foreman in a machine shop. The Applicant sought an opinion from Dr. Barry prior to starting this role, asking to be certified for heavy lifting and carrying. Dr. Barry refused to do so. Nevertheless, it appears that the Applicant took the position and worked in that role until he found another job and was hired as a CNC programmer/machinist. He worked in the new role as a CNC programmer/machinist from late November 2022 until he took a leave of absence starting January 11, 2023, due to a "chronic illness", as denoted by a note from registered nurse, K. Saint, dated January 12, 2023.

15Subsequent medical notes from Dr. C. Lu, gastroenterologist, state that the Applicant be away from work until August 28, 2023. The CNRs from Dr. Lu clarify that the Applicant suffers from epigastric and right upper quadrant abdominal pain, likely related to irritable bowel syndrome, which is not related to the accident.

16Meanwhile, the Applicant was seen for an MRI on his right shoulder and elbow. The imaging of his shoulder showed a superior labral tear, mild to moderate supraspinatus and infraspinatus tendinosis, mild tendinosis of the intraocular portion of the bicep tendon, and mild subacromial/subdeltoid bursitis. The imaging of his right elbow showed issues consisted with a background of mild to moderate common extensor tendinosis with a small interstitial tear of the tendon.

17The Applicant resigned his employment as a CNC programmer/machinist on August 15, 2023. He submits that he then started work at another company, which lasted for a month. Though, I note that few details and no documents were provided in support of this submission.

18Overall, the Applicant submits that he attempted to work because he was receiving no income, but that his accident-related injuries and impairments are too painful and debilitating to continue. He submits that his attempts at, and failure to work, serve to validate that he is most likely unemployable in any capacity.

19To the Respondent, the Applicant is able to return to work as demonstrated in the various roles he held following the accident. It also submits that many of the Applicant's absences from work and subsequent terminations are related to issues unrelated to the accident, such as familial issues and ongoing gastrointestinal issues. From this, the Respondent concludes that the Applicant is able to work and materially misrepresented his employment status when her returned to work in May 2021, to claim IRBs he was not entitled to.

ANALYSIS

Income replacement benefits ("IRBs")

20Pursuant to section 6(2)(b) of the Schedule, to be eligible for IRBs beyond 104 weeks from the accident, the Applicant must demonstrate that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience as a result of accident-related impairments.

21I find that 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 as a result of the accident.

22However, I am alive to the issue that the Applicant has stints of re-employment during his period of entitlement and that the Respondent is entitled to a deduction of IRBs payable during the period, pursuant to section 7(3) of the Schedule.

The Applicant's work experience is dominated by heavy demands labour

23From the evidence before me, I conclude that the Applicant has a high school education and post-secondary education in electronics and industrial controls. His work experience is dominated by work in the machinist trade. He has experience operating lathes, boring machines, gantry mills, and CNC machines. Additionally, he has held foreman roles during his career, but they also included heavy labour.

24Overall, I consider the Applicant's employment experience to fall in the "heavy" demands category. This is supported by the insurer's examination ("IE") report, dated April 29, 2024, where Dr. M. Abolarin, physician, concluded that the tasks of a machinist meet the level of heavy demand jobs.

The Applicant is impaired from working

25I find that the Applicant has demonstrated that he is impaired from working in a role that is suitable for him considering his education, training, and experience.

26Physically, the Applicant has demonstrated that his range of motion ("ROM") in his right shoulder is limited as a result of the accident. In the December 6, 2021 IE report, Dr. Abolarin assessed the Applicant and found that his upper extremity ROM was full in all directions, but reported pain during flexion and abduction beyond 90 degrees. Though, at that time, Dr. Abolarin found that the Applicant did not suffer a complete inability to engage in employment which he is reasonably suited for. Instead, Dr. Abolarin concluded that appropriate modified work is possible and feasible, and that the Applicant should transition to an active rehab program.

27Dr. Abolarin assessed the Applicant again and issued another report, dated April 29, 2024. On this examination, the Applicant's ROM in his right shoulder was limited to 100 degrees for flexion and abduction, which is a greater restriction than the previous examination. Dr. Abolarin also noted that a "shoulder specialist" concluded that the Applicant would not see any appreciable benefit with surgery and changed his prognosis to guarded. Despite these findings and observations, Dr. Abolarin concluded that the Applicant met the demands for "light" work and that he did not suffer a complete inability to engage in any employment for which he is reasonably suited by way of education, training, and experience. Dr. Abolarin relies greatly on the Applicant's personal opinion that he can do supervisory work or desk work. I give this conclusion discounted weight because it gives too much consideration to the Applicant's off-hand comment, rather than his actual work experience. This is because the vocational studies from April 2024 do not list any supervisory or managerial roles performed by the Applicant. Accordingly, I am not convinced that the Applicant is reasonably suited for a supervisory role, such as a machine shop foreman, with no physical work component.

28I give significant weight to the CNRs of Dr. U. Barry, the Applicant's family physician. Specifically, Dr. Barry's refusal to certify the Applicant for heavy lifting and carrying for employment, on June 7, 2022, despite the Applicant's request for approval. Dr. Barry has an ongoing doctor-patient relationship with the Applicant and is in the best position to opine on the Applicant's impairments. The fact that Dr. Barry would not approve the Applicant for heavy work, in light of the Applicant's objections, is a significant factor in determining the Applicant's level of impairment as a result of the accident.

29The Applicant has also demonstrated some psychological impairments as a result of the accident. The August 21, 2023 report by Dr. P. Miller, psychologist, found that the Applicant presented with a Somatic Symptom Disorder Predominant Pain Persistent, as well as an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Miller was of the opinion that the Applicant is most likely unemployable in any capacity. Dr. Abolarin considered Dr. Miller's opinion when assessing the Applicant's physical impairments and noted that his psychological impairments may be a barrier to his physical recovery.

30The Applicant's psychological symptoms are also identified in the report of Dr. D. Direnfeld, psychologist, dated April 29, 2024. Dr. Direnfeld noted that on the personality assessment inventory, the Applicant demonstrated an unusual degree of concern about physical functioning and health matters, probable impairment arising from somatic symptoms, a number of difficulties consistent with a significant depressive experience, significant suspiciousness and hostility in his relations to others, amongst other issues. I acknowledge that Dr. Direnfeld concluded that there was insufficient objective evidence of an accident-related psychological disorder, but I find such a conclusion holds little weight given the uncontroverted findings in the personality assessment inventory and the balance of the Applicant's medical records.

31I find that the Applicant's other health issues do not detract from his disability. As noted, the Applicant was excused from work due to gastro-intestinal issues identified by Dr. Lu in January 2023. I find that that this issue does not detract from the Applicant's overall impairment in his shoulder because it is an additional issue impairing him and there is no evidence demonstrating that his shoulder impairment ever receded following the accident. Moreover, as evidenced in Dr. Abolarin's two assessment reports, the Applicant's shoulder impairment increased as time passed. In other words, the Applicant's gastro-intestinal were an additional issue impairing his ability to work. Likewise, with the Applicant's familial issues following the accident – they are additional problems hindering the Applicant, but the problems do not preclude the Applicant's ongoing shoulder impairment.

32Based on the reports and other information discussed above, I find that the Applicant has demonstrated that he suffers a complete inability to engage in employment or self-employment that he is reasonably suited by way of education, training or experience.

Quantum payable

33Having determined that the Applicant suffers a complete inability to engage in employment or self employment that he is reasonably suited by way of education, training, or experience, I now turn my attention to the amounts payable.

34The Applicant returned to employment on several occasions but was ultimately unable to sustain employment. Section 11 of the Schedule provides that a person receiving IRBs may return to or start employment at any time during the first 104 weeks for which they are entitled to receive the benefit without affecting their entitlement to resume receiving the benefit if they are unable to continue the employment.

35I acknowledge that the Applicant has stints of employment after the first 104 weeks of entitlement to IRBs but find that this does not affect his entitlement to the benefit. This is because the Schedule does not state that returning to or starting employment in the post-104-week period disentitles the Applicant from receiving the benefit. The Schedule is consumer protection legislation which must be interpreted in favour of insured people. Thus, my interpretation of section 11 of the Schedule is not that it disentitles the Applicant from IRBs, rather his return to or start of employment in the post-104 period may be considered when determining his ongoing entitlement to IRBs. It would be unfair to penalize an insured person for attempting to return to work in the post-104 period if those attempts are ultimately and consistently unsuccessful.

36Further, I find that section 7 of the Schedule supports my interpretation of section 11, which permits the Applicant to temporarily return to work. Section 7(3) entitles the Respondent to a deduction for income earned during the Applicant's return to and start of employment. Notably, the deduction outlined in section 7 of the Schedule permits the Respondent to deduct 70% of the gross income received during the period of entitlement and is not restricted to the first 104 weeks following the accident. This further suggests that IRBs during the post-104 period need to be determined wholistically and attempts to return to work are only one of the many aspects to consider when assessing eligibility for IRBs.

37While the Applicant is entitled to $400.00 per week for the period of claim, the Respondent is also entitled to its deduction in relation to the Applicant's post-accident earnings. The Applicant's submissions, as well as the evidence before me, clearly demonstrates that the Applicant earned income from employment during the period of claim. Yet, the Applicant's earnings for the entire period of claim are not before me. I do not have a complete account of his post-accident earnings for which to calculate the deduction the Respondent is entitled to.

38It would be unfair and contrary to the consumer protection nature of the Schedule to disentitle the Applicant from entitlement to IRBs simply because his post-accident income is unclear. Thus, I leave this issue to the parties to resolve independently, once the appropriate documents are produced.

39If the parties are unable to resolve the issue of the quantum payable within 4 months of the release of this decision, either party may request a case conference to address the issue and, if necessary, arrange a hearing on the merits.

The Respondent is entitled to a deduction of benefits, not a repayment

40Section 52(1)a of the Schedule permits the Respondent to claim repayment of benefits paid in error or due to wilful misrepresentation. Section 52(2)1 provides that the Respondent must give notice of the overpayment, and section 52(3) restricts the requests for repayment to a period of no longer than 12 months following the error.

41The Respondent claims a repayment due to the Applicant's return to work for three weeks, starting May 3, 2021. It submits that it paid IRBs to the Applicant during this period while he was working and thus, claims a repayment of $1,200.00.

42I find that the Respondent is not entitled to a repayment of benefits because it has not established that the Applicant materially misrepresented his employment status in order to claim benefits that he is not otherwise entitled to. Indeed, the Applicant returned to work for a period in May 2021. However, having found that he meets the eligibility test for IRBs, it follows that he has not misrepresented his work status but, instead, has earned income from employment during his period of entitlement. As a result, the Respondent is entitled to a deduction of benefits payable, pursuant to section 7(3) of the Schedule.

43Considering that the Applicant continues to meet the eligibility test for IRBs, the Respondent is entitled to deduct from the amounts payable, 70% of the gross income earned when calculating the amount payable to the Applicant, following proper disclosure of his post-accident income.

Interest

44Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to IRBs, it follows that interest accrues on the amount payable.

CONCLUSION AND ORDER

45The Applicant is entitled to IRBs in the amount of $400.00 per week, for the period from December 16, 2021 to-date and ongoing, subject to deductions for post-accident income earned during the period, pursuant to section 7(3) of the Schedule. The Applicant is entitled to interest on the amounts payable to him.

46The Respondent is not entitled to a repayment of benefits paid to the Applicant. Instead, it is entitled to deduct 70% of the Applicant's post-accident earnings from the amount payable.