Citation: Taylor v. Intact Insurance Company, 2026 ONLAT 24-008573/AABS

Licence Appeal Tribunal File Number: 24-008573/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:

Lynn Taylor

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

John M Bray, Counsel

For the Respondent:

Kevin So, Counsel

HEARD: In Writing

OVERVIEW

1Lynn Taylor, the applicant, was involved in an automobile accident on June 29, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant worked full time as a licenced Greyhound bus driver since 2012 at the time of the accident. Her duties required cognitive and visual acuity; her job involved intercity travel across provinces, averaging 50–60 hours per week. As a result of the accident, the applicant sustained craniofacial fractures, trigeminal nerve damage, and mild traumatic brain injury. The respondent paid the applicant income replacement benefits (“IRBs”) until she commenced accommodated part-time work with Canada Post as an independent contractor for a mail route in May of 2017.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to an IRB in the amount of $400.00 per week from August 16, 2018, to date and ongoing?

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

RESULT

4The applicant is entitled to an IRB in the amount of $400.00 per week from September 27, 2023 to date and ongoing, subject to deduction of any post-accident earnings for this period.

5The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

IRB Legal Test

6Pursuant to section 6(2)(b) of the Schedule, the applicant may be entitled to IRBs if she can prove on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience as a result of accident-related impairments (“the post-104 test”).

Is the applicant entitled to an IRB in the amount of $400.00 per week from August 16, 2018, to date and ongoing?

7The applicant is entitled to an IRB in the amount of $400.00 per week from September 27, 2023 to date and ongoing, less any earnings during this period.

8The applicant submitted that as a result of the accident she sustained severe craniofacial fractures, trigeminal nerve damage, and mild traumatic brain injury, resulting in chronic neurocognitive and psychological issues. Further, neuropsychological and neurological assessments confirm her permanent impairments including memory and focus deficits, intermittent vision loss, vestibular imbalance, chronic pain, fatigue, and depressive disorders. The applicant stated her resulting impairments prevent her from working night shifts, driving long distances, and maintaining focus and stamina required to maintain employment as an intercity bus driver; further, the applicant attempted to return to work on three occasions without success with the last attempt ending in May 2017 after three unexplained vision loss episodes.

9The applicant also submitted she had no related pre-accident impairments and has worked part-time since 2018 as a contract driver during daylight hours with Canada Post requiring numerous work accommodations.

10The applicant also submitted that part-time work as a contract driver is a substantial vocational downgrade with annual income between $22,000 to $40,000 compared to her pre-accident income of approximately $85,000 in the year prior to the accident. Further she works substantially fewer hours than pre-accident at a far less demanding position due to her impairments.

11The applicant submitted that the neurological report of Dr. Rathbone, neurologist, dated September 23, 2023 diagnosed the applicant with the following injuries and impairments:

i. Mild traumatic brain injury with residual cognitive deficits, complicated by the development of mood and anxiety symptoms.

ii. Tension-type headaches (head pressure) likely exacerbated by an anxiety disorder.

iii. Facial fractures involving the nasal frontal suture, the nasal bone, the right and left orbital floors, the medial walls of the maxillary sinuses, the nasal septum, and the lateral wall of the right maxillary sinus.

iv. Permanent injury to the V2 branch of the Trigeminal nerve.

12Further, the applicant submitted the prognosis of Dr. Rathbone found permanent impairments as a result of the accident:

“From a neurological perspective, Ms. Taylor has sustained permanent and serious impairments of important physical and mental functions due to the June 29, 2014, motor vehicle collision. The nature of impairments is physical, cognitive, and behavioural. Ms. Taylor has an impairment in her problem-solving and communication abilities caused by her fatigue and disturbed sleep. Ms. Taylor also suffers from permanent intermittent episodes of balance impairment related to her episodes of head pressure. Head pressures and impaired balance have impaired Ms. Taylor’s ability to exert herself physically and caused her to avoid emotionally charged situations and bright light (especially at night).

Ms. Taylor participated in all the treatment recommendations made to her and continues to have ongoing residual symptoms and impairments. Areas of cognitive dysfunction include working memory, attention/ concentration, information processing, mental fatiguability, and executive function… These residual symptoms and impairments are expected to continue indefinitely and are considered permanent.”

13The applicant also relies upon the addendum report of Dr. Rathbone dated January 16, 2024 that concluded the applicant is disabled from returning to her pre-accident full time occupation because of the accident. Specifically, the report detailed factors resulting in the disability including head pressure, dizziness, vision loss, disturbances in vestibular function, cognitive and communicative difficulties, and an inability to tolerate bright light from vehicular headlights while driving. Dr. Rathbone further found her reduced cognitive tolerance impacted her ability to problem-solve as a bus driver and was easily distracted; intermittent episodes of dizziness and occurrences of vision loss are noted.

14Dr. Rathbone opined the applicant’s part time work delivering mail is much easier than her pre-accident employment, as it is a regular daytime route for a limited period of hours performed after peak periods requiring very little problem solving and communication. Her daily late start at work avoids peak activity at the mail depot where she sorts her route mail for approximately 30 minutes and completes her delivery route in approximately 45 minutes. If a customer approaches her at work, she will defer to the post office to resolve any problems accommodating her communication disability. Dr. Rathbone concluded the applicant lacks the mental stamina to work full-time hours as compared to her pre- accident ability due to reduced attention, distractibility, intermittent head pressure issues, photophobia, fatigue, anxiety, and cognitive and communication inefficiencies being permanent impairments. I find Dr. Rathbone’s evidence to be credible and give it significant weight as it is detailed and supported by extensive review of her medical records and thoroughly connects the applicant’s symptoms to her impairments.

15The applicant also relies upon the neuropsychology report of Dr. Mendella, neuropsychologist, dated March 4, 2024 which detailed the applicant’s symptoms included intermittent facial pressure causing her to feel off-balance and impacting communications, disturbed sleep and resulting fatigue, mood symptoms including fear of conversation, loss of interest in previously enjoyable activities, poor appetite, difficulty concentrating and making decisions, anger, anxiety, guilt and both suicidal ideation and suicidal planning. Dr. Mendella diagnosed the applicant under DSM-5-TR with major depressive disorder (”MDD”) with anxious distress, moderate, and somatic symptom disorder (”SSD”), moderate; the diagnosis included patient history review, patient interview and administration of objective testing. Dr. Mendella documented details of the applicant’s cognitive condition through the administration of testing:

“Her score on a composite measure of verbal intellectual abilities fell in the Borderline range (3rd percentile) and was significantly reduced….On the subtests used to calculate the composite measure of verbal intellectual abilities, Ms. Taylor’s abstract reasoning abilities were Low Average (9th percentile). Her expressive vocabulary, as defined by her ability to define single words, was Borderline (5th percentile). Her score on a subtest used to assess an individual’s general fund of knowledge was Extremely Low (2nd percentile).”

16Dr. Mendella concluded that in the applicant’s current medical condition, she is unlikely to be capable of working more than 15 hours a week without risking exacerbation of her mental health. Further he opined that due to the severity and chronicity of her symptoms and its impact on her functioning, the applicant has suffered a permanent serious impairment of important psychological functions as a direct result of the motor vehicle accident.

17I find the evidence of Dr. Mendella to be credible and give it weight as he thoroughly interviewed the applicant, applied objective testing, reviewed the results in detail, and provided a detailed analysis as to how he came to his diagnosis and conclusions; further his findings are corroborated with her family physician’s clinical notes and records.

18The respondent submitted the applicant has failed to satisfy her onus and does not meet the post-104 IRB test. The respondent relies upon the report of Dr. Angel, neurologist, dated July 25, 2018 that noted after vestibular therapy and physiotherapy the applicant was able to return to work and reported she was enjoying it and was feeling happy as of December 25, 2016. Dr. Angel concluded that the applicant sustained a mild closed head injury from the accident which had resolved, and any permanent injuries did not result in any functional impairment. Dr. Angel opined in respect to temporary vision loss that it is of unclear etiology and is not consistent with neurologic injury sustained from the accident. The respondent further submitted that the applicant’s assessors did not address the vision loss and link its causation to the accident. The respondent submitted that cause of the vision loss is central to her decision to cease working as a bus driver. I give Dr. Angel’s evidence considerable weight due to the detailed explanation of his findings as to the cause of the vision loss being undetermined.

19The respondent also submitted that the applicant reported to her physician that her temporary blackouts did not happen while driving and did not connect the issue to the accident. I find the medical records indicate one instance of vision loss occurred while lifting a suitcase after arriving at work destination; the other instances occurred while the applicant was not at work. Further, her physician referred her to Dr. Gupta, neurologist, who could not explain the loss of vision from a neurological perspective. I find Dr. Gupta’s evidence to be credible and give it considerable weight as his opinion was based upon his interview and examination of the applicant and his opinion squarely within his expertise.

20The respondent also relies upon the report of Dr. Breslin, ophthalmologist, dated July 25, 2018 who conducted an ocular examination and found nothing to account for the applicant’s vision loss complaint. Dr. Breslin noted that the applicant reported in the spring of 2017 she drove to Winnipeg as part of her employment, and while lifting a bag, she experienced a vision loss episode lasting 1-2 seconds which recurred twice afterwards. Dr. Breslin also noted the applicant was not working at the time of examination because of her inability to lift 100lbs., and her vision was not an issue. I find it unsatisfying that Dr. Breslin having documented the applicant’s vision loss episodes, did not address the impact of her vision loss episodes in terms of her driver’s licence. Albeit Dr. Breslin did not link her vision loss to the accident, the Tribunal is left unknowing whether his finding of unexplained vision loss triggered Dr. Breslin’s obligation to report to the Ministry of Transportation (“MTO”), as an omission of an obligation of this nature would be relevant to the veracity of an expert’s duty to the Tribunal.

21I find the evidence of Dr. Breslin that the applicant had no structural ocular injury on date of examination and that her condition included hyperopia with astigmatism and presbyopia corrected to 20/20, to be credible as Dr. Breslin interviewed and examined the applicant, and I assign it weight in this regard. Dr Breslin noted the applicant was photophobic in the right eye, however, I find Dr. Breslin did not opine on how photophobia or glare intolerance might impact on the applicant’s vocation. Further, Dr. Breslin noted that the applicant sustained 3 facial fractures in the accident but did not opine on its relevance; I question by this notation if Dr. Breslin was considering a potential circulatory blood flow issue as a cause of the vision loss and if investigation from a cardiological perspective was warranted.

22Further, the respondent submitted a report by Dr. Rabinovitch, ophthalmologist, dated July 4, 2016 who noted that the applicant was unable to return to work because of lifting issues and corrective glasses addressed her convergence insufficiency; Dr. Rabinovich concluded her vision did not prevent her from working. I find the evidence of Dr. Rabinovich that the applicant’s vision was corrected to normal on date of examination and give it considerable weight in light of his examination of the applicant.

23The respondent further relies upon the report of Dr. Saltstone, neuropsychologist, dated September 27, 2016 who found the applicant denied being depressed, did not take medication for accident related symptoms, and found no loss of cognitive function. I find Dr. Saltstone’s findings as of the date of examination to be credible and give it weight due to his review of the applicant’s medical records, interview with the applicant and objective testing of the applicant.

24The respondent also submitted that the applicant failed to continue with recommended treatments and had poor attendance and compliance to an agreed upon treatment plan as noted by Lifemark discharge report dated March 20, 2019. Further, the respondent submitted that the applicant’s work at Canada Post is comparable in terms of status and remuneration to her pre-accident employment and should not be entitled to post-104 IRB; the respondent relies upon Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479.

25The applicant in her written submissions pre-emptively rebutted the assessments of Dr. Angel and Dr. Breslin as both being too narrow in scope with neither assessment considering the applicant’s combined cognitive and sensory limitations in the analysis. The applicant also submitted Dr. Angel did not assess cognitive deficits and omitted the vision loss episodes; Dr. Breslin denied structural ocular injury but excluded the potential significance of photophobia as vocational functional impairment. However, the applicant’s reply submissions clarified that the report of Dr. Angel described the cause of the applicant’s vision loss as “unclear etiology”, correcting the earlier submission that Dr. Angel did not opine on the vision loss episodes.

26I find the applicant’s earlier submission that Dr. Angel did not opine on vision loss to be incorrect and find he opined the vision loss was of unclear etiology, further I find Dr. Angel opined a traumatic trigeminal nerve injury may be responsible for pain, but it is consistent with vision loss episodes. In reply the applicant submitted the report of Dr. Breslin found no ocular basis for the vision loss, but neither Dr. Angel nor Dr. Breslin proposed an alternative medical cause.

27In contrast, the applicant submitted in reply that the reports of Dr. Rathbone in September, 2023 and March, 2024 links episodic vision loss, photophobia, and fatigue to the traumatic brain injury and facial nerve damage sustained in the accident. The applicant submitted the report of Dr. Rathbone is the only evidence based causation analysis and should be given the most weight. Further, the applicant submitted Dr. Rathbone and Dr. Mendella consistently opined that the applicant’s persistent cognitive inefficiency, fatigue and chronic pain preclude her from any sustained full-time employment reasonably suited to her education and experience. I note Dr. Rathbone’s expert opinion is the most recent assessor evidence before the Tribunal and note he opines that the applicant’s condition will continue to deteriorate as time passes.

28The applicant also submitted in reply, a temporary return to work does not disprove entitlement, and that it is only evidence of an attempt to work at a pre-accident position. Also, the applicant submitted that post-accident employment status and wages are not determinative, but relevant factors; the fact that the applicant earns less income, works less hours and relies upon visual aides and repetition to address photophobia and cognitive issues indicated her accommodations and demonstrated her current work is not sustainable full time, nor is it vocationally comparable to her pre-accident employment.

29I find the submissions of the applicant to be persuasive in part; I find Dr. Rathbone’s evidence connected the applicant’s accident to her overall injuries. I find it significant that Dr. Rathbone expressed concern over deterioration of the applicant’s condition over time due to the accident and noted her cognitive function and memory has steadily decreased since the accident. I find Dr. Rathbone’s opinion to be logical, well reasoned and aligned with the observations of all assessors since the accident. I find the deterioration of the applicant’s condition as identified by Dr. Rathbone to be the most probable explanation for the differences between his observations and those of Dr. Angel approximately 5 years earlier.

30I take notice that operation of an intercity passenger bus requires significant demands both physically and cognitively on the part of the driver. The safety of the passengers is in the hands of the driver as well as the safety of motoring public at large; I find it is a position of very high responsibility for public safety. Further, I find the part-time operation of a mail route is substantially dissimilar work from the operation of an intercity passenger bus route, primarily due to the extraordinarily high responsibility level for public safety with the operation of an intercity passenger bus.

31I find the applicant’s cognitive decline in executive function, ocular light sensitivity, depression, anxiety, dizziness and reduced physical stamina to be sufficient to determine that she has suffered a complete inability to engage in employment for which she is reasonably suited by education, training or experience.

32I find it is not necessary to determine on a balance of probabilities if the cause of the vision loss episodes is connected to the accident as the respondent submitted. I find the vision loss episodes are not central to the applicant’s decision to quit her employment as an intercity bus driver as the respondent submitted; rather I find that her other conditions combined are sufficient to determine she sustained a complete inability to continue to engage in her pre-accident employment.

33I find that operation of an intercity passenger bus with the extraordinarily high responsibility for safety of its passengers and travelling public is in a substantially different realm of difficulty and responsibility than the skills and abilities to required to sustain a part-time local mail delivery route and is not employment which the applicant is reasonably suited by education, training or experience. I find the applicant’s current heavily accommodated part-time work to be evidence of the applicant’s inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience as a result of her accident-related impairments.

34I note my previous finding relating to the evidence of Dr. Rathbone and the applicant’s deteriorating condition over time. I find the applicant met the post 104 test at the time of Dr. Rathbone’s assessments in September 2023 and January 2024, however, the respondent’s neurological and neuropsychological assessments in May 2016 and June 2018 indicated the applicant’s condition did not meet the post-104 test at that time. I find the applicant’s condition progressed to meet the post-104 test sometime between June 2018 and June 2023 reflecting the months the assessments were made relating to the post-104 test. I note that elements supporting Dr. Rathbone findings about the applicant’s deterioration were documented in February 2020 when Dr. Mendella began his series of assessments. Further, I find it is part of the applicant’s burden to demonstrate when the post-104 test was met.

35I find that the applicant met her burden for the post-104 test as of September 27, 2023. The Tribunal finds the medical evidence of Dr. Rathbone as of September 27, 2023 is conclusive of her disability. While the applicant’s condition may have degenerated to meet the post-104 test at an earlier date, there is no conclusive medical evidence to support her evidentiary burden prior to September 27, 2023.

36Further, I find that the applicant’s condition is unlikely to improve, rather I find it is most likely to continue to deteriorate as noted by her most recent medical evaluation by Dr. Rathbone.

37The applicant is entitled to an IRB in the amount of $400.00 per week from September 27, 2023 to date and ongoing, less any post-accident income during this period.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on any overdue benefits.

ORDER

39The Tribunal’s final Orders:

i. The applicant is entitled to an IRB in the amount of $400.00 per week from September 27, 2023 to date and ongoing, less any earnings during this period.

ii. The applicant is entitled to interest on any overdue payment of benefits.