ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Roberto Soave
Plaintiff
– and –
Stahle Construction Inc.
Defendant
Lesley K. Parsons, for the Plaintiff
Justin Heimpel, for the Defendant
HEARD: By written submissions
THE HONOURABLE MADAM JUSTICE L. WALTERS
Supplemental reasons
Overview
1This matter was remitted back to the court by the Ontario Court of Appeal for a determination of whether the plaintiff, Roberto Soave, qualified for long-term disability benefits.
2Specifically, the court was asked to determine whether the plaintiff was disabled within the meaning of the Mercon Benefits Booklet (the “Mercon Booklet”) on January 27, 2014 and whether he would thereby have qualified for long-term disability benefits based on his hernia condition at that time and throughout the subsequent 120-day qualifying period.
3The court directed counsel to provide written submissions on this narrow issue.
4The court now has the benefit of those written submissions.
Position of the Parties
Plaintiff’s Position
5The position of the plaintiff is that Mr. Soave met the definition of disability on the date he stopped working due to his hernia condition. In the 120 days following January 27, 2014, he continued to meet that definition of disability as his hernia had not yet been repaired.
6In addition to the plaintiff’s evidence, the court had the evidence of the medical records of Dr. Eddenden, his family doctor, and Dr. Byrne, a general surgeon.
7Further, the defendant granted the plaintiff his request for a temporary medical leave which was reflected on the completed record of employment.
Defendant’s Position
8The position of the defendant is that there is not sufficient evidence before the court to support the plaintiff’s contention that he was disabled within the meaning of the Mercon Booklet as at January 27, 2014.
9The only evidence is the self-serving evidence of the plaintiff himself. There is no medical evidence that he was unable to work, and the records of his doctors do not support his assertions.
10The plaintiff was able to do his job fully. He was not disabled as of January 27, 2014, nor did he become disabled until the car accident of March 13, 2014. In these circumstances, he is not eligible for long-term disability benefits.
Coverage and Eligibility for Long-term Disability Benefits
11According to Mr. Soave’s employment contract, his benefit coverage began upon completion of a three-month waiting period. Mr. Soave’s employment began on October 7, 2013 and therefore his coverage began on January 5, 2014.
12The Mercon Booklet sets out the circumstances where an employee is eligible for continued coverage when his employment is temporarily interrupted. Included are interruptions due to a leave of absence or disability:
Leave of Absence: You may continue your benefits under this plan, with the exception of disability benefits, for up to six months during a leave of absence elected by you with your employer’s agreement. Prior to beginning the leave, you and your employer must agree to the scheduled start and finish dates.
Disability: You may continue your benefits while you are unable to work due to disability for up to 24 months from the date you become disabled. To be eligible for the continuation of benefits, you must either be in receipt of Workers’ Compensation or Long Term Disability benefits, or be approved for waiver of premium under the Employee Life Insurance benefit.
13The definition of disability in accordance with the Mercon Booklet is as follows:
In order to be considered disabled, you must be unable to perform the essential duties of your own occupation during the Qualifying Period and during the first two years immediately following the Qualifying Period.
14The plan specifically disentitles an employee from receiving long-term disability benefits when the employee “is on a leave of absence during which [they] become totally disabled unless [their] employer is required to pay benefits during this period as required by legislation, regulation, or case law.”
15The plan also provides a stipulated qualifying period of 120 days. At the end of this qualifying period, the employee has 180 days to apply for the long-term disability benefits. With a starting date of January 27, 2014, the qualifying period ended on May 27, 2014.
The Evidence
16Prior to commencing his job at Stahle, the plaintiff testified that he had seen two specialists regarding his hernia. He had had hernia surgery in the past. He felt he was well enough to decline another surgery and was able to complete the tasks of his job until completion in January 2014.
17According to Mr. Soave, he told John Preston on January 27, 2014 that he could not take another job until he had hernia surgery and therefore needed a leave of absence. Two weeks prior to this date, the hernia really started to hurt him. He said it was too difficult for him to be working on a job site. He could feel the mesh had dropped and it was difficult just walking around, getting in and out of his truck, and doing general things. Most importantly, he noticed that his intestines were slowly sinking into his scrotum and his right testicle was close to the size of a hard baseball.
18He advised Mr. Preston that he required a temporary leave due to this hernia. His employer accepted his request, and he was provided with a record of employment that contained the code “D”, which represented a temporary leave for illness or injury.
19On January 31, 2014, Mr. Soave attended at his family doctor’s office and the clinical note from Dr. Eddenden discloses that Mr. Soave was referred to Dr. Byrne for the repair of the hernia. This note did not mention any work restrictions. The clinical notes and records of Dr. Byrne, the general surgeon, described Mr. Soave’s hernia as “a rather massive reoccurrence.” There is no mention of any work restrictions.
20On cross-examination, he acknowledged that he had been able to complete all of his duties and responsibilities as a site superintendent for Stahle. He was in the same amount of pain, and he had not asked his family doctor for pain medication.
21The plaintiff’s employment contract was filed with the court as an exhibit, setting out his duties as a site superintendent. The full-time job required visits to project sites, travel, organization and supervision of trades, supervision of employees and coordination of all work, and, when necessary, doing carpentry or other construction work.
22Mr. Preston testified that he was aware that Mr. Soave had a hernia problem, however, he never required an accommodation and did a good job as a site superintendent. He denied that Mr. Soave advised him he needed a medical leave for surgery.
23On April 7, 2014, Dr. Eddenden checked “no” in a box on a Disability Certificate that stated “prior to the accident, did the applicant have any disease, condition or injury that affected his/her ability to perform the activities located in Part 6?” Part 6 includes the ability to perform the essential tasks of his employment at the time of the accident.
24A separate Disability Certificate from the physiotherapist Justin Krull dated June 4, 2014 was also included in Mr. Soave’s medical notes and records. Mr. Krull marked the same question in Part 8 as “unknown” and referenced the need for hernia surgery.
25The defendant called no independent medical evidence of their own to refute Mr. Soave’s evidence regarding his hernia condition.
Discussion
26At trial, the court made certain findings of credibility. The court did not accept the evidence of Mr. Preston. The court found that, for the most part, Mr. Soave was a credible witness.
27The court specifically found at paragraph 76 of its decision that, “Rob received his temporary medical leave on January 27, 2014.”
28In written submissions for the current issue, the defendant appears to reargue this finding and referenced the inability to obtain long-term disability benefits if one was on a temporary leave of absence. That situation has no application to the issue before me, as my finding of fact regarding the medical leave was not interfered with by the Court of Appeal.
29In order to meet the definition of disability as defined in the Mercon Booklet, the plaintiff is required to show that he was unable to perform the essential duties of his position as at January 27, 2014 and during the qualifying period which ended on May 27, 2014.
30I found Mr. Soave a credible witness for the most part. I accept his evidence regarding his hernia symptoms as at January 27, 2014.
31According to Mr. Soave, it was very difficult just walking around and getting in and out of his truck. He was in pain, and it was difficult for him to move around. His testicle was the size of a baseball. According to the plaintiff, he could not continue to do his job as a site superintendent with these symptoms.
32On balance, I am satisfied that with the symptoms Mr. Soave described, he would not be able to complete the significant responsibilities and physical demands of working on a construction site on a full-time basis.
33The plaintiff’s hernia condition is corroborated by the medical notes and records of his family doctor and his surgeon. Dr. Byrne described the hernia as “a massive reoccurrence.”
34With respect to the two Disability Certificates referenced by counsel, I accept the submissions of Mr. Parsons. The court has no idea why either the doctor or physiotherapist answered the question as they did. Neither individual was called as a witness. Mr. Soave specifically testified that he was, “Not agreeing with it. But it – so he has marked off.”
35With inconsistent certificates and lack of evidence from either the doctor or the physiotherapist, the court can give little weight to the information contained therein.
36It is true that the plaintiff did not call any medical evidence at trial that stated he was unable to work. However, the defendant did not call any medical evidence to refute Mr. Soave’s evidence regarding his medical condition.
37The court found that Mr. Soave requested a temporary medical leave for his hernia condition and that leave was granted by the defendant.
38The defendant was not obliged to grant the leave. It was open to the defendant to ask the plaintiff to obtain medical documentation to support his assertions that he could not work, but they did not. They did nothing. The court infers that the defendant accepted the plaintiff’s evidence about his hernia condition and inability to work. The medical leave was granted, and a record of employment was completed.
39Mr. Soave was not able to apply for long-term disability benefits because the defendant improperly and negligently terminated his benefits.
40At the time of his motor vehicle accident on March 13, 2014, Mr. Soave was on a temporary medical leave. As at March 13, 2014, Mr. Soave was permanently disabled and would have qualified for long-term disability benefits.
41I am satisfied that the plaintiff has met the definition of “disability” as defined in the Mercon Booklet as at January 27, 2014, and he would thereby have qualified for long-term disability benefits based on his hernia condition at that time and during the subsequent 120-day qualifying period.
42Order to go accordingly.
Costs
43If the parties are unable to agree on the issue of costs, they may provide me with written submissions not to exceed five pages in length, with any offers to settle attached, within thirty days of today’s date. If no such costs submissions are received, the issue of costs shall be deemed to have been resolved.
L. Walters, J.
Released: October 23, 2023
COURT FILE NO.: CV-15-00055602-0000
DATE: 2023-10-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Roberto Soave
Plaintiff
– and –
Stahle Construction Inc.
Defendant
supplemental reasons
L. Walters J.
Released: October 23, 2023