June 05, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant unable to return to work - 18-001878 GB v Guarantee Insurance, 2019 CanLII 22207 (ON LAT)
Date of Decision: February 19, 2019
Heard Before: Adjudicator Dawn J. Kershaw
IRBS – applicant must show complete inability to return to work for a job she is suited to; applicant makes case for complete disability to work; applicant already receiving CPP
On February 6, 2014, GB was a passenger in a vehicle that was parked in a parking lot, when a truck backed into her car, smashing the glass out of the back window. GB saw the impact coming and braced herself by grabbing the door handle with her right hand. At the scene of the accident, GB’s back felt warm and tingly and her right arm swelled up and felt heavy and “clubby”. She also had throbbing pain in her elbows. Her neck swelled up and felt like a tree trunk, and she developed a headache.
GB sought benefits from Guarantee SABS. When Guarantee refused to pay benefits GB applied to the LAT for resolution of this dispute.
Issues In Dispute
- Is GB entitled to receive a weekly IRB in the amount of $400.00 per week for the period from October 4, 2016 to date and ongoing?
- Is GB entitled to interest on the overdue payment of benefits?
In this case, GB was paid an IRB from February 2014 to October 2016. At the 104-week mark after the motor vehicle accident, or in this case February 2016, the test for entitlement becomes more stringent as set out, below. GB’s claim in this case is for post 104-week income replacement benefits.
- B is entitled to IRBs in the amount of $400.00 per week for the period from October 4, 2016 to date and ongoing.
- GB is entitled to interest on the outstanding amount of IRB.
GB claims an IRB for a period of time that begins more than 104 weeks after the accident. Section 6(2)(b) of the Schedule states:
“The insurer is not required to pay an income replacement benefit, 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.”
Evidence and Analysis
In order for GB to prove on a balance of probabilities that she is entitled to an IRB after 104 weeks, she must demonstrate that she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. The term “suitable employment” means employment in a competitive, real-world setting, taking into account an employer’s demands for reasonable hours and productivity, and the work must be comparable in terms of status and wages.
GB was approved for CPP disability benefits. As the Tribunal has established however, a successful CPP disability application is not determinative of entitlement to IRB. The Adjudicator agrees with the Tribunal in 16-002000 that although it is not determinative, some weight must be given to the finding. The Adjudicator then reviewed the evidence with respect to GB’s ability to work.
GB continues to get headaches, which at times are piercing; neck pain from her head into her right shoulder; heavy, “clubby”, numb right arm; throbbing in her elbow; knife-like pain in her back, particularly if she overextends, as well as a sciatic-like pain into her right leg. At times, her right foot swells if she sits or stands for too long. GB testified she has been told her injuries are all muscular other than what she called “floating discs” in her back.
GB lost her job a few days after the accident, and as a result suffered emotionally. The accident caused her to lose her livelihood, and time with her children and husband. She gets overanxious, irritable, edgy and moody. She feels useless and worthless and has no self-esteem and little ambition. GB’s sleep pattern is erratic. Her mind is always active with thoughts and pain. She does little other than go with her husband to bingo two to three times a week or to the mall for a short walk to try and alleviate her depression and anxiety. She cannot walk around the mall without resting. She uses breathing techniques to help calm herself.
Since her accident, GB has only been able to do a bit of housework and laundry, though she used to do all the cleaning except the bathrooms. She changes bed linens with her left hand. She does some stovetop cooking. She really misses gardening as she cannot dig, weed or use a pitchfork. She can no longer cut the grass. She uses a bath chair. She dresses in loose, pull on clothes. She cannot tie things or do up fasteners. She wears her hair short now because she could not pull it back, and it is easier to wash with one hand. Her husband has to do up her bra for her and cut her toenails. Having to rely on him makes her feel useless. She has no self-esteem and has gained weight.
GB’s husband testified that GB has become sad, a bit bitter and deflated. He said she hardly uses her right arm. While he cannot feel her pain, he sees she is in pain. He testified that they now have no social life. GB obtained treatment, including physiotherapy, including massage and laser, until between six months and a year ago. After 3 ½ years of treatment, she was told she was as improved as she was going to get. While she had brief improvement after a session, it also made her stiffer afterward. The physiotherapist recommended lots of exercise, and GB said at the gym she tried using a recumbent bike, did some walking with a TENS machine on and used the bands.
She saw a psychologist for a period of time to try and deal with her feelings of uselessness and worthlessness but ceased once Guarantee stopped paying for her treatment.
Guarantee in its submissions urged the Adjudicator to reject GB’s evidence because of credibility issues. However, the Adjudicator found that although there are some inconsistency in testimony GB is a credible witness noting that no doctor or assessor found that GB was malingering or lying about her abilities. They assessed her as genuine. The only adverse finding was in the FAE because GB self-limited.
Applicant’s Education and Work History
GB has a high school education and took some refresher courses in Dictaphone, typing and accounting a few years after high school. She has a consistent work history. At the time of the accident, she was working the night shift at the juice bar of a high end health club. She had worked at their restaurant for a year or two until it closed. She testified she thought she would end her working days there because she liked the job and her employers liked her and her work ethic
Functional Abilities Evaluation (“FAE”)
GB underwent a FAE. It concluded she did not put forth maximal effort. She testified she tried to the best of her ability but declined some tasks, such as bending down and picking something up off the floor, because she knows she cannot do it without triggering great pain..
While the FAE concluded that GB could do various jobs including at a call centre or as a security guard, the Adjudicator found that neither of these would fit GB’s functional limitations that include daily pain, difficulties sitting or standing for any length of time, an unpredictable sleep pattern and limited use of her dominant arm.
Employment since the Accident
At the time of the accident, GB’s job required her to be active all day and not sit. She had to carry pails of ice and drink purees and clean. She returned to work for a few days after the accident, and was permitted to sit, but her employer then left her a message telling her they did not need her anymore. She testified her work ethic was totally different after the accident. Before she was injured, she did not even take a break in a 10-12 hour shift. GB has not sought work since the accident because of her soreness, her lack of a predictable schedule and the medications she takes.
The test for IRB includes a consideration of whether GB could engage in self-employment. Guarantee submitted that GB has a history of self-employment and a “true entrepreneurial spirit”. The Adjudicator noted that n order for GB to be self-employed, she would have to have the ability to attend to that employment at somewhat regular hours and would very likely have to engage in some physical tasks which the doctors conclude she cannot do. Guarantee submitted that GB and her husband have started about three businesses together and even though she did the physical labour required, it is not to say she could not do this in a non-physical capacity. However, the test involves considering the competitive, real world setting, and the Adjudicator found that GB’s past entrepreneurial endeavours have involved having to do the physical work as well, and it is unrealistic to imagine that GB has the skills or experience that would enable her to start a business that would not require her to do the physical work required. As such she could not return to self-employment.
In reaching the conclusion that GB has a complete inability to engage in employment, it is necessary to consider the fact that GB has not even tried to return to work other than continuing to work with difficulty for a few days after the accident.
On the basis of the evidence and the law the Adjudicator found that GB has a complete inability to engage in any employment or self-employment and is entitled to IRBs in the post-104 week period beginning October 4, 2016 to date and ongoing.