Applicant fails to make case that she suffers from a complete inability to engage in any employment - 16-004619 v State Farm Insurance, 2018 CanLII 13165 (ON LAT)

May 23, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-004619 v State Farm Insurance, 2018 CanLII 13165 (ON LAT)

Date of Decision: February 6, 2018
Heard Before:  Adjudicator Paul Gosio

IRBs: applicant fails to show she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience

The applicant was 23 years old and employed at the New Middle Eastern Market as a cashier supervisor at the time of the accident on October 11, 2013.  Her employment activities included standing for extended periods of time (up to 7 hours per day), lifting heavy boxes (up to 20 pounds), shelving merchandise and serving customers.

In the accident she suffered injuries to her left shoulder, neck and lower back which prevented her from returning to work and as a result, she began receiving an IRB on January 3, 2014.  The applicant continued to receive the income replacement benefit until March 24, 2016, which is more than 104 weeks from the date of the accident.  The benefit was then terminated by way of an OCF-9 dated March 24, 2016, based on the findings of various s.44 reports.

The applicant submitted an Application to the LAT on the basis that she is entitled to the income replacement benefit as she is psychologically and physically incapable of engaging in any employment for which she is reasonably suited by education, training or experience.

Result

The applicant has failed to demonstrate that, as a result of the accident, 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 an income replacement benefit in the amount of $336.00 per week from March 24, 2016 to present and ongoing.  No interest is payable.

Discussion

The applicant bears the onus of establishing, on a balance of probabilities, that she is entitled to the income replacement benefit in dispute.  The test is set out in the Schedule. To qualify, the applicant must demonstrate that, as a result of the accident, she has a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

The applicant asserts that she has met her onus based on her psychological and physical impairments. She  relies upon  a psychological report dated November 3, 2016, the Disability Certificate dated April 15, 2016, and the Medical Certificate dated January 16, 2017, and the MRI dated March 28, 2014 in support of her claim.

On October 28, 2016, the applicant was assessed by a psychotherapist overseen by a psychiatrist. Her scores concluded that since the accident, she has been experiencing emotional distress mostly in the form of symptoms of anxiety and somatic pain.  She was diagnosed with Adjustment Disorder with Anxiety and Specific Phobia (Driving a Vehicle).  The report concluded that from a psychological and emotional standpoint, the applicant cannot return to work as a cashier supervisor or any other job for which she is reasonably suited by education, training or experience.

State Farm submits that this report should be given little weight for the following reasons:

1. Firstly, the report is based entirely on the applicant’s self-reports with little or no corroborating objective medical evidence. 
2. Secondly, the conclusion that the applicant is incapable of engaging in any employment for which she is reasonably suited by education, training or experience should have been supported by some vocational evidence that takes into account the applicant’s educational background, skills and employment experience in relation to the job market.  There is no indication that occurred. 
3. Thirdly, the report fails to identify what medical documentation, if any, reviewed. 
4. Finally, State Farm submits that the conclusion that the applicant’s presentation is consistent with Adjustment Disorder with Anxiety and Specific Phobia (Driving a Vehicle) is not consistent with the records of the applicant’s family physician which do not contain any accident related psychological complaints.  Furthermore, there are no records or reports from any treating psychologist or psychiatrist in support of this conclusion.

The Adjudicator concluded the failure to consider vocational evidence that takes into account educational background, skills and employment experience in relation to the job market is aprimary concern.  Without doing so, it is difficult to assess the reasonableness and soundness of the report’s conclusion. 

The applicant testified that she is suffering from chronic lower back pain with radiating numbness in her legs.  She referred to the Medical Certificate from her family doctor dated January 16, 2017, and the MRI dated March 28, 2014 in support of her claim. She also testified that her chronic lower back pain prevents her from remaining in a standing position for more than 20 minutes and a sitting position for more than 30 minutes. She explained that lying down and pain medication (Tylenol and/or Advil) provides her with some relief from the pain. She argues that all of the employment activities for which she is reasonably suited by education, training or experience will require prolonged standing or sitting and as a result, she has satisfied the complete inability test.

The Adjudicator was not persuaded by the evidence provided by the applicant. The MRI revealed no significant spinal canal or foramina stenosis at any level.  Only a small disc protrusion is seen at the L5-S1 level.  No nerve root impingement was found.  The results of the MRI alone do not support the claim that the applicant meets the “post 104 test”.

The applicant has failed to prove that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Her appeal is dismissed.

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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.