Applicant Fails to Show She Suffered Substantial Inability to Work - CP and Wawnesa - LAT 17-001931

May 12, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

C.P. and Wawanesa Mutual v Wawanesa Mutual Insurance Company, 2018 CanLII 13144 LAT 17-001931

Date of Decision: January 19, 2018
Heard Before Adjudicator: Ruth Gottfried

IRB: applicant fails to provide proof of substantial inablility to perform work

CP was in a car accident on September 26, 2016 and sought benefits pursuant to the SABs. CP applied for IRBs and was paid by Wawanesa beginning October 4, 2016. On February 23, 2017 terminated the IRB as of February 27, 2017 based on IE assessments.

CP returned to work on February 27, 2017 at her pre-accident workplace, but worked modified hours for the next month. CP disagreed with Wawanesa’s decision and seeks partial payment of IRB until March 26, 2017 to make up for the shortfall of her income while she was on modified hours.

CP submitted an application for dispute resolution LAT. The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.

ISSUES:

1. Is CP entitled to an income replacement benefit in the amount of $400.00 weekly from February 27, 2017 to March 26, 2017, less income earned in that period?
2. Is CP entitled to interest on any overdue payment of benefits?
3. Is Wawnesa entitled to costs against CP?

RESULT:

1. CP is not entitled to an income replacement benefit from February 27, 2017 to March 26, 2017.
2. CP has claimed entitlement to an IRB from February 23, 2017.  Although the letter denying the benefit was dated February 23, 2017, the effective date of the denial is February 27, 2017.
3. If CP was not paid for the period up to the date of denial (February 27, 2017) then Wawanesa must pay the amount owed, plus interest pursuant to section 51 of the Schedule.
4. Wawnesa is not entitled to costs against CP.

Substantial Inability Test

The onus is on CP to meet the substantial inability test for receiving income replacement benefits within the first 104 weeks set out in the Schedule. The parties are in agreement that CP sustained injuries as a result of the accident.

Before the accident CP worked full-time at a bakery as a cashier.  According to a note dated April 15, 2017 from her family doctor the primary diagnosis of her injuries is:  myofascial cervical, thoracic, and lumbar strain. This injury has likely exacerbated significant pre-existing cervical, thoracic, and lumbar osteoarthritis and degenerative disc disease with thoracic scoliosis. He noted that CP ’s issues had become chronic.  He also stated that CP ’s job involved constant standing and carrying and that “I told her to stop work”.

CP submits that she was unable to work for many months due to her injuries and she attended physiotherapy. In January 2017, CP attended multidisciplinary IE assessments arranged by Wawanesa.  She also attended a Functional Abilities Evaluation (FAE) and a hypothetical job site analysis with a physiotherapist. On January 31, 2017, CP attended an orthopaedic assessment with an orthopaedic surgeon.

The Adjudicator reviewed the essential tasks of CP’s job. CP provided a job description during her FAE assessment.  She stated that she primarily worked as a cashier.

The workplace report did not identify any impairment during her evaluation.  She identified that CP ’s pre-accident job as a cashier was classified at the light level of physical demands and her opinion was that CP was not substantially disabled from performing the essential tasks of her pre-accident employment.

The orthopaedic report noted that CP sustained uncomplicated myofascial strain-type injuries to her neck and back in the accident and demonstrated a full range of motion with some end-range pain but no specific discernable areas of weakness and no neurological abnormality.  It concluded that CP did not have an impairment as a result of the accident. Both assessors found that CP did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and was capable of returning to her pre-accident employment on a full-time, full-duties basis.

Based on the assessments Wawanesa denied the continuation of IRB and advised CP by letter and Explanation of Benefits dated February 23, 2017 that she would no longer be entitled to an IRB after February 27, 2017. CP did not submit any evidence from an orthopaedic specialist.

The Adjudicator noted that it is clear that CP ’s employer was willing to provide modified hours.  Under Part X of the Schedule, CP must make reasonable efforts to return to employment. The Adjudicator noted that CP should have consulted with her employer and considered the availability of modified work before Wawanesa’s denial.  No evidence was submitted to indicate that she had determined her employer’s position on that.

Applicant’s return to work

CP had been off work for approximately five months.  She returned on part-time hours for one month and then to a full complement of work hours. She requested that Wawanesa pay her for the “short fall” of income once she returned to work.  Under section 11 of the Schedule CP could have attempted a return to work and if she could not work full time then her benefits would not have been affected except for the deduction of income earned.

Unfortunately, CP was no longer receiving an IRB when she returned to work – the benefit had been denied based on the IE assessments. As stated above, I did not give a great deal of weight to the family doctor’s argument that CP was unable to return to full time work as she already had.

Based on the above, the Adjudicator concluded that CP has not met her onus in establishing that as of February 27, 2017 she suffered a substantial inability to perform the essential tasks of her employment. She is not entitled to an IRB from February 27, 2017 to March 26, 2017.

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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.