Applicant fails to make case for post 104 week benefit - 17-004072 GT v. The Commonwell Mutual Insurance Group, 2019 CanLII 18337 (ON LAT)

May 20, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-004072 Applicant fails to make case for post 104 week benefit - GT v. The Commonwell Mutual Insurance Group, 2019 CanLII 18337 (ON LAT)

Date of Decision: February 5, 2019
Heard Before: Adjudicator Paul Gosio

INCOME REPLACEMENT BENEFITS – Applicant must satisfy the test for IRB of a substantial inability to perform the essential task of her pre-accident employment; applicant does so for 104 week period; applicant fails to meet threshold for post 104 period

OVERVIEW

GT was injured in a car accident on March 27, 2015.  She did not require immediate medical attention, took medication for her pain and eventually made her way to work.  By the following day, her pain worsened.  She began to experience pain in her “whole body” including her neck, back and shoulders. She continued to work through her pain until she took a medical leave on July 8, 2015.  She then began to receive an income replacement as she could no longer complete the essential task of her pre-accident employment.  GT received the income replacement benefit from July 16, 2015 to March 9, 2017.  GT then attended various s.44 examinations as she neared the 104 week mark post-accident.  Based on the strength of the s.44 examinations, Commonwell denied GT any further entitlement to the income replacement benefit.

GT also sought and received medical benefits in order to address both her physical and psychological impairments.  GT then submitted additional treatment plans which Commonwell denied, taking the position that further treatment was not reasonable and necessary. GT’s challenge to the denials of the income replacement and medical benefits form the basis of this application.

Issues:

1. Is GT entitled to an income replacement benefit in the amount of $224.27 per week for the time period from March 10, 2017 to date and ongoing?
2. Is GT entitled to receive a medical benefit in the amount of $1,805.00 for physiotherapy services in a treatment plan submitted on October 4, 2016?
3. Is GT entitled to receive a medical benefit in the amount of $3,129.48 for psychological services recommended in a treatment plan submitted on November 18, 2016?
4. Is GT entitled to interest on any overdue payment of benefits?

RESULT

1. GT has met her onus of establishing on a balance of probabilities that she suffers a substantial inability to perform the essential task of her pre-accident employment.  As a result, she is entitled to an income replacement benefit in the amount of $224.27 per week for the time period from March 10, 2017 to March 27, 2017.  Interest is payable.
2. GT has not met her onus of establishing on a balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.  As a result, she is not entitled to receive an income replacement benefit in the amount of $224.27 per week for the time period from March 27, 2017 to date.
3. GT is entitled to the medical benefits in dispute as they are reasonable and necessary.  Interest is payable.

Income Replacement Benefit

Schedule section 5(1)(i) provides that the IRB is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(2)(b) provides that the benefit is only payable after 104 weeks from the date of the accident if the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.

First 104 Weeks

The time period in dispute with respect to the first 104 weeks is from March 10, 2017 to March 27, 2017.  GT bears the onus of establishing on a balance of probabilities that she suffered from a substantial inability to perform the essential tasks of her employment during that time.

There is no dispute that GT was working as a bartender at the time of the accident.  GT submits that she continued to suffer from a substantial inability to perform the essential tasks of her pre-accident employment during the time period in dispute due to her physical and psychological impairments.

GT relies, in part, on the following:

1. The report of GT’s family doctor notes that GT’s inability to return to her pre-accident employment is directly attributable to the injuries she sustained in the motor vehicle accident as well as the onset of her chronic pain.  He noted that the chronicity of her pain would prevent her from fulfilling the requirement to lift and move heavy beer kegs.
2. The report of the orthopaedic surgeon notes that GT sustained injuries to her neck and back which would be consistent with sprain and strain myofascial type injuries.  The orthopaedic surgeon goes on to explain that GT’s injuries are more significant than a simple sprain or strain type problem as there has been persistent symptomology more than a year post-injury.  He considered that GT was developing some chronic mechanical problems with regard to her neck and back.  The orthopaedic surgeon concluded that GT’s ongoing pain and problems with her neck and back affect her ability to return to her pre-accident employment as a bartender.  The orthopaedic surgeon anticipates that GT will have difficulties with activities that require her to maintain prolonged static posture or prolonged flexed positions.  The orthopaedic surgeon also notes that GT will have difficulties with activities that require repetitive bending, lifting or twisting and as a result, the specific activities required of GT as a bartender will be impacted.
3. The chiropractor completed a Functional Abilities Evaluation on September 4, 2016.  Her report notes that in terms of physical demands, GT is currently unable to have a job beyond sedentary as she will exacerbate her condition.  She opined that due to GT’s physical condition and the degeneration in her lower back and neck, she will find it difficult to meet the physical demands of pre-accident employment as a bar steward. 
4. The psychologist report dated November 9, 2016 diagnosed GT with the following DSM-V diagnosis: Major Depressive Disorder (recurrent, severe), Post-traumatic Stress Disorder with Phobic Symptoms in a Vehicle, Persistent Severe Somatic Symptom Disorder with Predominant Pain and Excessive Cannabis and Alcohol Use.  The psychologist noted that GT’s impairments are disabling and affect her capacity to work and that her ongoing disability impairs her ability to work in her prior occupation as a bartender.  The psychologist completed a Psychological Reassessment Report dated January 27, 2017 wherein her diagnosis and opinion remained unchanged.
5. The disability certificates of Dr. T dated September 2, 2015, Dr. M dated March 7, 2016 and the family doctor dated October 31, 2016, all which indicate that GT is substantially unable to perform the essential tasks of her employment as a result of and within 104 weeks of the accident.

Commonwell’s position that GT did not suffer from a substantial inability to perform the essential tasks of her employment for the time period from March 10, 2017 to March 27, 2017 is based in part on the following:

1. The report of the neurologist concluded that from a neurological perspective, there was no evidence of any physical restrictions or functional limitations and that there was no evidence of a neurological impairment as a result of the accident.  He opined that GT’s prognosis was excellent and that GT was able to carry on with the essential tasks of her pre-accident employment.
2. The report of the physiatrist noted that GT indicated that she experienced an overall improvement of 75% in her accident related complaints.  Physiatrist concluded that there is no definitive musculoskeletal or neurological reason why GT cannot return to work and that she would not have a substantial inability to perform the essential tasks of her pre-accident employment.
3. The report of Dr. S, psychologist, opined that GT was experiencing a mild level of symptoms that did not meet the DSM-IV clinical criteria for impairment.  He found that there was no evidence of a psychological impairment and that GT did not display any functional limitations.  Dr. Saunders concluded that from a psychological perspective, GT did not suffer from a substantial inability to perform the essential tasks of her pre-accident employment.

The Adjudicator was persuaded by GT’s evidence and find, on a balance of probabilities, that GT suffered from a substantial inability to perform the essential tasks of her pre-accident employment for the time period from March 10, 2017 to March 27, 2017 on the basis of her history with her family doctor, and her compelling testimony. He gave little weight to the IE assessments as the conclusions were contradictory the totality of the evidence and found that they do not paint an accurate picture of GT’s actual functional capacity.

Post 104 Weeks

In order for GT to be eligible for the income replacement benefit after the first 104 weeks from the date of the accident, she must show, on a balance of probabilities, that she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.  This is commonly referred to as the more stringent “complete inability test” or the “post 104 test”.

GT believes 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.  She testified that she would “crumble to the demands” of meeting quotas from prospective employers and also stated, at paragraph 30 of her sworn affidavit, that she had been advised by her treating doctors that at present, she is not fit or able to work.  GT clarified in cross examination, that the treating doctors she was referring to was the family doctor, her family doctor.

The Adjudicator reviewed the totality of the evidence and determined that based on the above, GT has not satisfied him, on a balance of probabilities, that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. 

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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.