December 04, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
MR v State Farm Mutual Automobile Insurance Company, LAT 16-003757 2017 CanLII 76930 (ON LAT)
Decision Date: October 27, 2017
Heard Before: Adjudicator Cezary Paluch
INCOME REPLACEMENT: applicant fails to show complete inability to work in post 104 week period; assessments do not address question; reports lack essential details.
MR was injured in a car accident on September 16, 2013 when was rear ended. Prior to the accident, he had worked at the same factory since July 2000. He applied for benefits under the SABs from State Farm but when the claims were denied, and mediation failed, MR applied for arbitration at the LAT.
- Is MR entitled to receive a weekly IRBs for the period from October 28, 2015, until such time as MR continues to be entitled to the benefit pursuant to the Schedule?
- Is MR entitled to receive interest on the overdue payment of benefits?
- MR is not entitled to receive IRBs for the period sought. MR has not shown that he is completely unable to perform the essential tasks of his pre-accident employment.
- MR is also not entitled to interest.
There are two statutory tests for entitlement to an IRB. The first test applies from one week after the date of the accident until the second anniversary and is payable if the applicant suffered a substantial inability to perform the essential tasks of his pre-accident employment. Following the accident, MR received IRBs until October 27, 2015 when the benefit was terminated by the respondent as per the Explanation of Benefits (OCF-9) based on a determination that MR did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.
The second test for entitlement for the post 104-week IRB states: “The insurer is not required to pay an IRB after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is commonly referred to as the more stringent “complete inability test” or the “post-104 test”.
The onus in this case is important, and it rests on MR to prove on a balance of probabilities that he is entitled to the IRB under the Schedule. MR contends that he suffered both physical and psychological impairments as a result of the accident. MR provided a Disability Certificate, two medical reports and a MRI Consultation Report. A chiropractor prepared a Disability Certificate dated April 15, 2015. However, it only addresses the test for the first 104-week period.
MR retained a physician with a specialty in orthopaedic surgery, to prepare a report on his condition. The report dated December 9, 2014, diagnosed MR with the a variety of strain and sprain injuries, and contusions to arms, legs, ankles and spine. It also showed myofascial (sprain/strain) injury of the spine, and musculoskeletal impairments. Little weight was placed on this report though since it did not address the “complete inability test”, or whether MR is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. The second reason the Adjudicator gave the report little weight is that on page 11 of his report (done three months post-accident) it states that MR’s musculoskeletal functional limitations “may remain permanently. The Adjudicator noted that the report was done without the benefit of any scans, radiographs or similar type assessment. Third, Dr. the conclusion that there “is no evidence of pain magnification is not supported with any evidence. Finally, it states that he reviewed the medical brief as part of his assessment but nowhere in his report does he specify what documentation formed part of his review.
MR also provided his family doctor’s report dated September 27, 2016 in support of his claim which diagnosed MR with chronic pain, whiplash, myofascial pain, stiffness and soreness, fibromyalgia, impaired lifting due to wrist pain, insomnia, stress and depression and when testifying the doctor also added the diagnosis of anxiety. It did not directly comment on complete inability though. Several other medical reports were submitted and they did not address the question either of complete inability.
State Farm submitted IEs from an orthopaedic centre, an psychological IE, and a vocational assessment. All the IEs concluded that MR can return to his employment which was assessed as a medium to heavy job, and that MR does not suffer a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.
If MR is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience then more evidence is required for MR to meet his evidentiary burden.
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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.