Insured failed to demonstrate effort at return to any work

October 01, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: August 2, 2016

Heard Before: Adjudicator Kenneth Conroy

REASONS FOR DECISION

Mr. Henry Lastowski was hurt in a car accident on January 18, 2011 and sought accident benefits from State Farm, but when the parties were unable to resolve their disputes through mediation, and Mr. Lastowski applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Mr. Lastowski entitled to receive a weekly income replacement benefit in the amount of $400.00 from January 19, 2013 to date and ongoing?

2. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Lastowski?

3. Is Mr. Lastowski entitled to interest for the overdue payment of benefits?

4. Is State Farm liable to pay Mr. Lastowski’s expenses in respect of the Arbitration?

5. Is Mr. Lastowski liable to pay State Farm’s expenses in respect of the Arbitration?

Result:

1. Mr. Lastowski is not entitled to receive a weekly income replacement benefit of $400.00 per week from January 19, 2013 to date and ongoing.

2. State Farm is not liable to pay a special award to Mr. Lastowski as it did not unreasonably withhold or delay payments to Mr. Lastowski.

3. State Farm is not liable to pay Mr. Lastowski interest for overdue payments of benefits.

4. State Farm is not liable to pay Mr. Lastowski’s expenses of the Arbitration.

5. State Farm is entitled to its expenses of the Arbitration. If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Mr. Lastowski was a pedestrian in a car accident on January 18, 2011. As a result of the accident, Mr. Lastowski sustained injuries to his left wrist, right leg and right winged scapula. Surgical intervention was required and Mr. Lastowski did not return to work as a result. Mr. Lastowski is a 50-year-old male who at the time of the accident was working for Deluxe Stair & Railing Ltd., but he had been employed as a skilled stair builder earning $24/hour since 1995 and that was the job he held when the accident occurred. Mr. Lastowski gave evidence that he completed high school 33 years ago. His job required him to obtain a work order and material list, gather the required material, plan and then build the required work project. Mr. Lastowski would routinely use a table saw, router, sanders and band saw. Mr. Lastowski gave evidence that he enjoyed his work and took pride in the fact that he was often given more complex tasks such as circular staircases because of his skill. There is no dispute or issue to be addressed relating to Mr. Lastowski’s employment status at the time of the accident and State Farm admittedly paid IRBs (income replacement benefits) to Mr. Lastowski to the 104 week mark pursuant to the SABS.

Evidence at the Hearing  suggested that as a result of the accident, Mr. Lastowski sustained injuries that required orthopaedic surgery. His injuries made it impossible for him to maintain, with any degree of strength, elevation of his right upper extremity beyond 90 degrees. He is apparently unable to lift weights above waist level away from his body as the scapula collapses as well as his upper extremity. The conclusion from this evidence is that Mr. Lastowski is not capable of any overhead work or overhead lifting. Mr. Lastowski has difficulties with prolonged standing, walking and in particular, climbing and walking on uneven ground due to knee injuries. Further, as a result of a complex fracture of the right tibia, he walks with a limp thus limiting the length and distance that he is able to walk and stand. It is not anticipated that further recovery will occur. Medical testimony concluded further that as a result of the combined injuries Mr. Lastowski is not suited for employment requiring sustained work at shoulder level or above or any repetitive use of his right upper extremity and is not able to return to his regular trade. Numerous medical reports and assessments were relied on as evidence but remarkably none went so far as to suggest that Mr. Lastowski suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

The test for income replacement benefit entitlement after week 104 is found in Section 6(2)(b) of the  SABS:

(2) The insurer is not required to pay an income replacement benefit,

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

Mr. Lastowski and State Farm presented into evidence Vocational Reports setting out Mr. Lastowski’s vocational skills, abilities, suitable jobs and limitations.  It was apparent that there were jobs that Mr. Lastowski could properly do as contained in the reports that would not require significant training such as order desk clerk, telephone sales agent, bench assembler and bench woodworking. Mr. Lastowski gave evidence of his desire to get back into the workplace but produced no evidence whatsoever that he was making any effort to do so. Mr. Lastowski raised the issue of what he would be paid for such jobs and argued that the drop in pay should be considered as a valid reason for not being required to take such positions. The Arbitrator submitted that this wage issue is merely a factor to take into consideration. There is no evidence before that Mr. Lastowski was offered any position with lower wages.

What was significant to the Arbitrator was that at no time was there evidence presented of efforts made by Mr. Lastowski to secure suitable employment. It would have gone a long way to support Mr. Lastowski’s position if there had been evidence of attempts to retrain, efforts to obtain employment deemed suitable by the experts or confirmation of the fact that Mr. Lastowski could not function at any job that he might have secured. Mr. Lastowski failed to satisfy the Arbitrator that he made those efforts. The mere effort of attempting to do so could have supported Mr. Lastowski’s position that he is not employable. That did not occur and as the onus is on Mr. Lastowski to establish that he suffers a complete inability to engage in any employment to which he is reasonably suited the Arbitrator concluded that he is not entitled to post 104-week income replacement benefits.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.