New hearing ordered - Interest to be paid at correct rate - Shannon Doxtater and Aviva Canada Inc.

January 20, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Shannon Doxtater and Aviva Canada Inc.

Date of Decision: October 6, 2018
Heard Before: Adjudicator Maggy Murray

APPEAL ORDER

SHANNON DOXTATER Appellant (Respondent on Cross-appeal)
and
AVIVA CANADA INC. Respondent (Appellant on Cross-appeal)

IRBS: basis for IRB claim and assessments; what qualifies as unable to do work; arbitrator makes error in law and appeal is allowed; cross appeal dismissed

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 it is ordered that:

1. The appeal of the Arbitrator's order dated November 17, 2017 is allowed.  Paragraph 1 of the Arbitrator’s order is rescinded, the matter is returned to arbitration, and a fresh hearing will be held before a different arbitrator on the issue of entitlement to IRBs from November 1, 2015 onwards.
2. Paragraph 4 of the Arbitrator's order dated November 17, 2017 is revoked, and the following substituted:
   1. The Applicant is entitled to interest at the rate of one (1) percent per month, compounded on any overdue payments of IRBs.
3. Aviva’s cross-appeal on the issue of a special award is dismissed.

REASONS FOR DECISION            

Ms. Doxtater appeals the order of Arbitrator Mongeon dated November 17, 2017  in which he awarded her IRBs from December 23, 2013 to October 31, 2015 but dismissed her claims of entitlement to post-104 week IRB’s.  The Arbitrator also ordered that Aviva pay Ms. Doxtater a $1,000 special award for withholding the IRB’s for the period December 23, 2013 to October 31, 2015 and awarded Ms. Doxtater interest at 2% compounded monthly on overdue payments.  Aviva cross-appeals the arbitrator's award of a special award in the amount of $1,000 and interest at 2% compounded monthly on overdue payments.

II.         BACKGROUND

Ms. Doxtater was injured in a car accident on October 31, 2013 when she was rear ended at a red light. She attended a clinic with complaints of confusion, headaches, and pain in neck and back.  She sought accident benefits from Aviva, payable under the Schedule. The doctor noted decreased range of motion in her neck, tender paraspinal muscles in her neck, thoracic and lumbar spine and tender upper fibers of her trapezius from right to left, headaches secondary to whiplash with a possible head injury/concussion, and recommended physiotherapy.

Ms. Doxtater visited various doctors for several years after the accident and continued to report persistent neck, right shoulder and lower back pain, as well as headaches radiating from her neck to the back of her head.  The family doctor observed that Ms. Doxtater continued to suffer from tenderness in her neck muscles as well as tenderness in her para-lumbar and iliac crests.  At least one doctor diagnosed cervical strain, cervical whiplash and chronic rotator cuff tendinitis strain. Ms. Doxtater was 36 years old at the time of the accident and has a high school education, which she completed in 2008 when she was 32 years old. She lives with her three children in Ottawa and is their primary caregiver.

Two days before the accident, Ms. Doxtater was laid off her job as an assembly operator with Abbott Point of Care, where she had worked for 14.5 years.  In addition to her salary, she also had a benefit plan for drug and dental benefits.  Her job duties involved repetitive tasks which required constant handling and fingering, accuracy, fine motor dexterity, bimanual labour and repetition of precise and accurate assembly operation procedures.  She worked three twelve-hour shifts per week.  Before the accident, she also worked as an assembly operator at another company.  She has also worked as a decorative painter before working at Abbott and as a house cleaner.

Ms. Doxtater has a previous diagnosis of right shoulder injury. During Ms. Doxtater’s employment with Abbott, she received accommodations to deal with this injury. Ms. Doxtater testified at the arbitration hearing that she has not been able to work full-time since the accident. However, since the accident, she has cleaned houses.   A physiatrist retained by Ms. Doxtater in January 2017 concluded that she should avoid tasks involving sustained prolonged static postures of the head/neck and upper body, heavy lifting and carrying, forceful pushing/pulling and repetitive or sustained twisting movements. A June 2017 GATB established scores for six out of nine aptitudes. However, because of physical limitations it was unable to establish the last three aptitudes.  Because of the lack of the three physical aptitude scores from the GATB for Ms. Doxtater, it was determined there were no occupations that would accommodate her limitations.

An IE occupational therapist provided a Functional Capacity Evaluation and Physical Demand Analysis reports dated December 2, 2014 for the pre-104 week IRB test, which is different than the post-104 week IRB test. It concluded that Ms. Doxtater is unable to do her previous employment.  Ms. Nicholson's reports provide documentation of Ms. Doxtater's abilities and limitations. No evaluation was done to determine whether Ms. Doxtater can work pursuant to the post-104 week IRB test. 

The Arbitrator awarded Ms. Doxtater IRB’s from December 23, 2013 until October 31, 2015, which is IRB’s until 104 weeks after the accident and concluded that a special award in the amount of $1,000 was payable to Ms. Doxtater and awarded her interest at 2% compounded monthly on overdue payments.  The Arbitrator found that Ms. Doxtater was not entitled to post 104-week IRB’s.

III.        ANALYSIS

Under section 5(2) of the Schedule, the insurer is not required to pay an IRB for any period longer than 104 weeks of disability:

unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience (emphasis added)

Although the Arbitrator recited the relevant law for determining whether Ms. Doxtater is entitled to post-104 week IRB’s, such as his statement that Ms. Doxtater’s employment possibilities must be comparable to what she has done in the past, the Arbitrator relied on irrelevant considerations and incorrectly applied the law when he concluded that Ms. Doxtater did not meet the post-104 week IRB test.

I agree that it may be difficult to find employment for the Applicant. However, it is not impossible. I note that many employers now seek to accommodate differently abled persons in employment situations which include work-at-home and job-sharing situations. The test is complete inability. I do not have to be literal; there are generally in the employment market positions available for those with different abilities.

In its submissions, the Applicant's representative has suggested limited employment opportunities for the Applicant. However, as a high school graduate and someone who was on her way to an apprenticeship it is difficult for me to believe the Applicant has no skills or abilities whatsoever. The issue of “sustainability of employment” is not based solely on one’s past work experience, it also involves a consideration of the ability to work day after day and perform the same job on a consistent, productive basis, having the stamina and the ability to tolerate pain.

Furthermore, it was an error of law for the Arbitrator to consider Ms. Doxtater’s ability to manage her household as a single parent.  That is not a relevant factor in the post-104 week IRB test which addresses the suitability of employment based on one’s education, training and experience.

Cross-Appeal of the Special Award

Subsection 282(10) of the Insurance Act, as it read prior to being repealed, stated:

 If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

In regards to the special award, the Arbitrator stated:

The information which the Insurer had about whether or not the Applicant could match the functions of the Abbott job made it clear that there were at least two functions that were not a job match. Reports clearly shows this. “The income replacement benefit should have been continued… Despite such clear evidence that she was unable to perform the duties of her pre-MVA employment …”

The Arbitrator’s statements that Aviva’s “conduct is only blameworthy on an ex post facto basis. At the time, the Insurer was likely acting reasonably” refer to Aviva’s conduct prior to its receipt of Ms. Nicholson’s reports.  The Arbitrator's conclusions based on reports are findings of fact and do not raise an issue of law.  I see no basis to overturn that portion of the decision.

Cross-Appeal of Interest

Regarding interest, the Arbitrator stated:

As a result of my decision to award a special award, interest is payable on any amount owing to the Applicant at the rate of two (2) percent per month compounded (emphasis added).[33]

The payment of interest by an insurer is governed by s. 51 of the Schedule which states:

(1)   An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

…

(3)   Interest is payable at the rate of 1 per cent per month, compounded monthly, from the date on which the amount becomes overdue (emphasis added)

The parties agreed during the appeal hearing that the Arbitrator erred when he awarded Ms. Doxtater interest at 2% on pre-104 week IRB’s.  The Arbitrator’s determination that interest was payable at 2% per month compounded monthly on IRBs was an error of law.  Pursuant to s. 51 of the Schedule, interest is payable to Ms. Doxtater at the rate of 1% per month, compounded monthly.

In conclusion, the appeal and part of the cross-appeal are allowed. Paragraphs 1 and 4 of the arbitrator's order dated November 17, 2017 are revoked.

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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.