April 08, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
J. V. v Wawanesa: IRB; Insurer’s Examination; applicant meets burden of proof that she is substantially unable to continue her work due to injuries resulting from car accident
Date of Decision: January 31, 2017
Heard Before Adjudicator: Lan An
J. V. was injured in a car accident on January 28, 2015. She applied for and received IRBs under the SABs from February 5, 2015 to March 22, 2015 and from January 5, 2016 to May 8, 2016. Wawanesa terminated J.V.’s income replacement benefit as of May 9, 2016. It takes the position that she no longer met the test for entitlement due to an Insurer’s Multi-Disciplinary Examination (IE) under the Schedule.
J.V. returned to work on September 13, 2016, on reduced hours (30 hours per week) and on modified duties (such as limiting pushing and pulling with both arms, limiting working at shoulder level, and having assistance with moving resident).
- Is J.V. entitled to an income replacement benefit in the amount of $280.00 weekly for the period from May 9, 2016 to September 12, 2016?
- Is J.V. entitled to interest for overdue payment of the income replacement benefit?
- Is J.V. entitled to an award of costs?
- The Arbitrator found J.V. is entitled to receive an income replacement benefit in the amount of $280.00 for the period from May 9, 2016 to September 12, 2016, and that J.V. is entitled to interest on the amount of income replacement benefits owing.
J.V. bears the burden of proving on a balance of probabilities that she is entitled to the income replacement benefit for the period from May 9, 2016 to September 12, 2016. The test is clearly set out in the Schedule.
At the time of the motor vehicle accident, J.V. was employed as a PSW at a long-term care facility but was on a medical leave of absence from September 21, 2014 to March 21, 2015. Shortly after the accident, J.V. attempted to return to work on March 22, 2015, working 37.5 hours per week. Sometime in June 2015, she reduced her hours to 34 hours per week. By January 5, 2016, J.V. stopped working, and Wawanesa reinstated payment of income replacement benefits in the amount of $280.00 per week.
J.V. again returned to work on September 13, 2016 (30 hours per week), and on modified duties (such as limiting pushing and pulling with both arms, limiting working at and above shoulder level, and having assistance with moving residents).
The Arbitrator sought answers to two key question: what are the essential tasks of J.V.’s employment? And, is J.V. substantially unable to perform the essential tasks of her employment?
The Arbitrator reviewed the list of essential job duties which were mutually agreed to as accurate. He then addressed whether J.V. is substantially unable to perform the essential tasks of her employment as a personal support worker? He reviewed the medical evidence regarding her physical condition.
Wawanesa’s expert witness, a physiatrist, diagnosed J.V. with soft tissue injuries of the sprain and strain type while Wawanesa’s expert witness, a neurologist, found that she had no neurological impairments.
J.V.’s rheumatologist, opines that J.V. should not return to work. He diagnosed her with pain syndrome in the cervical spine and the lumbar spine that preclude her from doing her duties as a PSW. In a Disability Certificate (OCF-3) dated March 24, 2015 and December 2, 2015, J.V.’s family physician diagnosed J.V. with the following injuries and sequelae due to the motor vehicle accident:
- Cervical pain and strain
- Dorsal pain and strain
- Lumbar spine pain and strain
- Bilateral shoulders pain and strain
- Recurrent headache
- Sleep disorder
The Arbitrator noted that both parties’ expert witnesses agree that J.V.’s physical conditions are, at the minimum, soft tissue injuries to the cervical spine and lumbar spine. After considering the job requirements, the Arbitrator found that J.V. would have difficulties performing many of the essential tasks of her employment. The Arbitrator found that on a balance of probabilities J.V. has established that she is substantially unable to perform the essential tasks of her employment.