March 12, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Milan and Aviva Canada
Decision Date: January 4, 2018
Heard Before: Adjudicator Charles Matheson
IRBs and MEDICAL BENEFITS: applicant does not suffer a complete inability to work; applicant does suffer from chronic pain; applicant shows some treatments are reasonable and necessary
Ms. Milan was injured in a car accident on May 17, 2011. She applied for and received SABs from Aviva, but when the parties were unable to resolve their disputes through mediation Ms. Milan applied for arbitration at the FSCO.
- Is Ms. Milan entitled to receive a weekly income replacement benefit in the amount of $325.00 from July 3, 2013 to date and on-going?
- Is Ms. Milan entitled to receive the following medical benefits:
- $680.71 for Occupational Therapy dated March 7, 2014;
- $3,048.20 for Physical rehabilitation dated December 19, 2013;
- $379.77 for physical rehabilitation dated July 8, 2013;
- $1,100.00 for orthotics devices dated July 26, 2013;
- $1,766.25 for physical rehabilitation and assessment dated February 13, 2015;
- $2,683.26 for vocational assessment dated February 20, 2015?
- Is Ms. Milan entitled to interest for the overdue payment of benefits?
- Is Aviva liable to pay a special award to Ms. Milan?
- Is either party entitled to its expenses in respect to the Hearing?
- Ms. Milan is not entitled to receive a weekly income replacement benefit in the amount of $325.00 from July 3, 2013 to date and on-going.
- Is Ms. Milan entitled to receive the following medical benefits?
- Ms. Milan is entitled to the treatment plan of $680.71.
- Ms. Milan is not entitled to $3,048.20 for Physical rehabilitation, dated December 19, 2013.
- Ms. Milan is entitled to $379.77 for physical rehabilitation, dated July 8, 2013.
- Ms. Milan is not entitled to $1,100.00 for orthotics devices, dated July 26, 2013.
- Ms. Milan is not entitled to the treatment plan of $1,766.25 for physical rehabilitation and assessment, dated February 13, 2015.
- Ms. Milan is entitled to the assessment plan of $2,683.26 for a vocational assessment dated February 20, 2015.
- Aviva is not liable to pay a special award to Ms. Milan.
- Ms. Milan is entitled to interest for these overdue amounts, at the rate of 2% compounded monthly in accordance with the Schedule.
- Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the provisions of the Dispute Resolution Practice Code.
Ms. Milan was crossing a road at a crosswalk when she was struck by a vehicle on the left side of her body. Ms. Milan was working as a personal support worker at the time of the accident. She speaks English and Norwegian. Ms. Milan gave birth to her son on July 31, 2012. She raises her son with help from the biological father, who resides outside of her home. Ms. Milan has had a second motor vehicle accident on June 19, 2014.
Ms. Milan testified she was struck by a car, hitting her on her left thigh and hip area. She did not believe that she lost consciousness. At the time of the accident she was working as an unlicensed Personal Support Worker (“PSW”) for Mr. and Mrs. C. who also lived in Guelph. The career goals of Ms. Milan were to work in the health care industry as a licenced PSW and eventually as a Registered Nurse. She was working full time.
Ms. Milan went to the hospital in an ambulance. She found out the injury she sustained was a torn meniscus ligament in her left knee. This was verified by an x-ray. Ms. Milan testified to the pain in her hip, her knee, and lower back. Ms. Milan testified that she has continued to suffer from aches and pain in her arms and shoulders with pins and needles in her arms and hands. An MRI confirmed that she suffered from a pinched nerve in her spine.
Ms. Milan returned to work, approximately 5 weeks after the accident, to look after Mrs. C., despite that fact that she returned to work with the use of crutches and later on a knee brace. Ms. Milan was accommodated due to her injuries and restricted to lighter duties. Ms. Milan continued to work for Mr. C. after Mrs. C. passed away, until she needed a leave from her employment for a maternity leave as she gave birth to her son on July 31, 2012. In June 2013 Ms. Milan was told her position working for Mr. C. was no longer available. Her first attempt to return to work was at a local Tim Horton’s where she found the pain from standing and bending too much. She quit after a week.
Ms. Milan testified that she started to work for a PSW placement agency in 2014. This was for modified positions only, as she was limited to light duty positions, which resulted in infrequent opportunities with limited hours and pay. Ms. Milan explained she tried to augment her income by participating in several on-line business opportunities which did not produce the successful results she wanted. She stated that she is not a great salesperson and her income was dependant on sales commissions. Ms. Milan also started working for a second PSW placement agency.
Ms. Milan testified that she went back to Cornerstone College, during her maternity leave (January 2013 to June 2013) for her certification as a PSW, which she successfully completed, despite the constant pain while sitting or standing for long periods. This is the same pain Ms. Milan testified to, which continues to impede her progress at the gym, and prevents her loss of weight.
Ms. Milan explained that she then went to Conestoga College in 2014, for up-grading her math and biology courses so she may pursue a registered nurse degree. During her upgrading and resulting academic assessments Ms. Milan decided to change her focus to Human Resources. Ms. Milan started her diploma program in September 2016 in an expedited program where she tried to complete a two-year program in a single year. Ms. Milan admitted this was too ambitious and had to drop 2 courses, where she went on to complete the other 5 courses. Ms. Milan has not attended school since.
Ms. Milan also confirmed on cross-examination that she is multi-lingual, that she has a Bachelor of Commerce degree, she is educated in English, and has had a wide variety of jobs in her life. She confirmed that she has declined cortisone shots and surgery for her knee, and that she is in counselling.
Several medical practitioners testified at the hearing. Ms. Milan was diagnosed with “Persistent Depressive Disorder (dysthymia), with anxious distress. Late onset, and with persistent major depressive episode, with current episode, Moderate”, and “myofascial pain in her back and neck with overlying probable fibromyalgia.” Ms. Milan was also diagnosed with “Somatic Symptoms Disorder with predominant pain. Persistent, moderate.”. Ms. Milan is undergoing treatments that allow her to have better function within her activities of daily living and social life activities. Her treatment is not a cure for the pain; it is a pain management program. She benefits from physiotherapy treatments.
Ms. Milan argues that she has not been able to return to her pre-accident level of employment because of her disabilities and pain, which are the direct result of the 2011 motor vehicle accident. Ms. Milan submits that the Supreme Court in Martin v. Nova Scotia (Worker’s Compensation Board) 2003 SCC 54, has stated that chronic pain in and of itself is a bona fide disability. Ms. Milan also submits that all the evidence shows that Ms. Milan suffered injuries in the subject accident and that she suffers from chronic pain. Ms. Milan respectfully submits that she suffers from a complete inability to engage in any employment for which she is reasonably suited within her training, education, and experience due to her injuries and chronic pain.
Ms. Milan submits that the uncontested evidence shows that she was off work for approximately 5 weeks. A calculation of income was completed, and Aviva paid her $325.00 per week for this period. Ms. Milan argues that her IRB was not terminated by Aviva at any time; therefore, there is no limitation period applicable in this case. This issue has not been disputed by Aviva.
The disabilities Ms. Milan is relying upon have not been disputed by Aviva. Ms. Milan submits that the Schedule and case law make it clear that the mere fact that Ms. Milan’s return to work on very modified duties after the accident until her maternity leave, followed by periodic and sporadic employment and/or schooling after that, does not disentitle Ms. Milan to IRBs. They submit that the total hours of worked and level of remuneration factor into the determination. The Adjudicator agreed.
Aviva submits that Ms. Milan's involvement in a subsequent motor vehicle accident, on June 19, 2014, should be taken into account when considering her recovery from the earlier 2011 accident and her demonstrated abilities prior to her involvement in the 2014 accident; an event about which she did not inform some of her medical assessors. Aviva argues, in part, that Ms. Milan has not established her entitlement under the post-104 week disability test contained in section 6(2)(b) of the Schedule which requires evidence to support a conclusion that she has and continues to 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 found and agreed that Ms. Milan suffers from chronic pain, noting that Aviva did not assess Ms. Milan with any Insurer’s examinations for post-104 weekly IRBs, and that Ms. Milan was not denied any IRBs at any time by Aviva. The Adjudicator found that Aviva simply did not pay more than the $0.00 per week as her accommodated employment income was greater than the weekly IRB of $325.00. Therefore, by extension, there are no applicable limitation periods for this benefit, as argued by Ms. Milan.
The Adjudicator noted that Aviva did not adjust the file once Ms. Milan went on maternity leave, however the disputed IRB is only about post-104 weekly benefits and not about the actions or inactions of Aviva during the first 104 weeks post-accident. Therefore, FSCO has no jurisdiction to comment on any events within the first 104 weeks of the accident.
The Adjudicator noted that on the preponderance of all the evidence the chronic pain is not such that it rises to the point that would prevent Ms. Milan from working on a “complete inability” level. This does not mean Ms. Milan does not suffer pain from her disability; the opposite is true. She suffered a “substantial inability” but not “a complete inability” to work as a result of the 2011 accident due to her disability.