Applicant Fails to Show She Has Complete Inability to Return to Work - Applicant v State Farm Insurance Company, 2018 CanLII 2312 (ON LAT)

March 27, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v State Farm Insurance Company, 2018 CanLII 2312 (ON LAT)

Date of Decision: January 3, 2018
Heard Before: Adjudicator Deborah Neilson

IRBs – Applicant fails to show that suffers that the car accident caused a complete inability to perform essential tasks of the job; applicant fails to show she cannot undertake work for which she is reasonable educated or suited

The applicant was injured in a car accident on December 16, 2014 the car she was driving was rear-ended while she was waiting to make a left turn. he was taken by ambulance to a hospital. No statement or affidavit from the applicant, hospital records or ambulance call report was filed as evidence to support the applicant’s submission.

She applied State Farm accident benefits under the Schedule, but when the claims were denied she applied to the LAT for arbitration. She alleges that she has pain complaints and psychological difficulties that prevent her from working at the employment she was engaged in at the time of the accident.

State Farm claims that the applicant is able to work at her pre-accident employment. If she is not, State Farm claims that it is because of pre-accident and post-accident health issues or injuries that have no relation to the accident.

Issues:

1. Is the applicant entitled to receive an IRB in the amount of $278.11 per week for the time period of August 5, 2015 to the present and ongoing?
2. Is the applicant entitled to receive payment for a cost of examination in the amount of $2,200.00 for a psychological assessment pursuant to a treatment and assessment plan OCF-18 dated July 5, 2016?

Result:

1. The applicant is not entitled to IRBs or the psychological assessment. While the psychological assessment may be necessary, the applicant has failed to prove that the fees charged for her assessment are reasonable.

The applicant is 39 years old and was working as a cashier and team leader at a restaurant and was also employed as a driving instructor when she had the accident. She had pre-accident health problems consisting of pain in both her knees since 2003 and was diagnosed in March 2013 with mild osteoarthritis and chondromalacia patella of both knees. She also complained of heel pain and ankle pain in July 2014 that caused her to limp. She had right shoulder pain from a 2013 motor vehicle accident that still bothered her in September 2014 and she was referred to a physiatrist. She had complaints of fatigue in January 2014, and was suffering from anxiety, apprehension, insomnia, and severe depression in February 2014. Her depression and anxiety resolved by April 2014. However, the complaints of insomnia and fatigue continued.

The applicant went to see her family doctor the day after the accident with complaints of back pain and neck pain. She returned full-time to work two days after the accident, initially refraining from lifting chairs off the table at the start of her shift.

The applicant told State Farm’s assessors that her workplace gradually reduced her hours and after a fight with her supervisor, the applicant quit her job in mid-March 2015 due to stress and pain. Notes from her family doctor from March 2015 show she complained of having heel and x-rays disclosed the applicant had heel spurs consisting of posterior plantar calcaneal enthesophytes on her heels. In June 2015 she was diagnosed with a right knee sprain, she sprained her ankle at work in July 2015, and in August 2015 she was diagnosed with plantar fasciitis. The applicant did not provide any information about where she was working or what type of work she was doing when she sprained her ankle.

State Farm stopped paying the applicant IRBs effective August 15, 2015 based on the findings of its insurers examination assessments. Information from Canadian Academy of Defensive Driving provides conflicting dates for when the applicant stopped working as a driving instructor. It is not clear if the applicant was working as a driving instructor when she sprained her ankle in July 2015 or if the injury occurred at some other employment.

The applicant claims that because of the accident, she had to stop working in March 2015 and is no longer able to work. The Schedule requires her to prove that on a balance of probabilities that she was employed at the time of the accident and, as a result of the accident and within 104 weeks of the accident, she sustained a substantial inability to engage in the essential tasks of that employment.

To determine entitlement to IRBs, the inquiry can be divided into three steps:

1. Causation;
2. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment; and
3. Does she suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

The Adjudicator noted that while the applicant suffers from an impairment that renders her unable to work as a team leader and cashier, she has not shown that it was caused by the motor vehicle accident and manifested within 104 weeks of the accident.

The applicant admits that she has a significant pre-accident medical history, and claims the accident exacerbated those medical conditions. The applicant submits that she now has chronic pain because of the accident and is unable to work as a result of her pain complaints. The allegation that the applicant now has chronic pain is not supported by any evidence. If the applicant was diagnosed with chronic pain, she failed to produce any evidence of that diagnosis.

The Adjudicator reviewed the medical evidence and found that the opinions of the treatment providers and assessors about the accident impairments are not reliable because they either were not aware of the applicant’s pre-accident medical or her post-accident medical history. In the absence of evidence from the applicant, and without any analysis by the medical experts of the effect of those complaints and injuries on the applicant’s present complaints, the applicant has failed to prove that the accident has caused any impairment. Without some direct evidence from the applicant, the Adjudicator was not able to find that the stress and pain that led to the applicant quitting her in March 2015 were related to the applicant’s 2014 motor vehicle accident.

The applicant did not provide any evidence that she was unable to work an 8 hour shift. Accordingly the Adjudicator accepted the opinion that the applicant is able to perform the essential tasks of her employment as a team leader and cashier for Paramount.  The applicant has not provided an affidavit or statement about her functional abilities or an explanation of the effect of her post-accident injuries on her ability to work. Nor has she provided any reliable expert opinion. The applicant has failed to prove on a balance of probabilities she is substantially unable to perform the essential tasks of a team leader and cashier at a restaurant or as a driving instructor.

The lack of information and inclusion of incorrect information in the psychological pre-screenings is a good reason why a full psychological assessment is necessary. The Adjudicator found that on a balance of probabilities and assessment is necessary to determine whether psychological treatment is required because of the accident and if the applicant will respond to any accident related psychological treatment, but the adjudicator was unable to determine if it is reasonable. For this reason, the applicant’s claim for the psychological assessment in the July 5, 2016 treatment plan 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.