Cleaner fails to show beyond a reasonable doubt his inability to perform the requirements of his job

March 28, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-000682 v Northbridge: Income Replacement Benefits; SABs; ‘but for’ test; material contribution test; which is the correct test to apply; applicant fails to prove beyond a reasonable doubt that he is unable to perform the requirements of his job.

Date of Decision: February 14, 2017
Heard Before: Adjudicator Chris Sewrattan

The applicant was injured in a car accident on August 28, 2015. Following the accident, the applicant applied for and received income replacement benefits until January 28, 2016 pursuant to the SABs. On that day, Northbridge terminated the applicant’s benefit. The applicant disputes this termination and submits that he should be paid an income replacement benefit from January 29, 2016 to date and ongoing. The weekly amount of the income replacement benefit is not in issue. The only issue is entitlement.

Issue:

1. Is the applicant entitled to an IRB in the amount of $389.11 per week from January 29, 2016 to date and ongoing?

Result:

1. The applicant is not entitled to an IRB of $389.11 per week from January 29 to the date of this decision. The applicant has not shown that he is substantially unable to perform the essential tasks of his pre-accident employment.

The test for entitlement to payment of an income replacement benefit is set out in the Schedule. The applicant is entitled to an IRB if he can prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a cleaner.

The Arbitrator divided the inquiry into three steps:

1. Was the applicant employed at the time of the accident;
2. Causation; and
3. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment

The Arbitrator reviewed the facts of the case, the law and the evidence presented. He determined that the applicant was employed at the time of the accident as a cleaner. The applicant is entitled to an IRB only if the accident caused him to sustain an impairment that renders him unable to work as a cleaner, and the inability to work manifests within 104 weeks of the accident.

Northbridge submits that the applicant has failed to prove causation entirely. In its view, the applicant has failed to show that he did not suffer from his alleged impairment prior to the motor vehicle accident.

The applicant’s pre-accident medical history is unremarkable. His OHIP summary shows that most of his pre-accident medical visits were in relation to hypertension, and there were no visits in relation to the impairment of which he now complains. The obvious inference is that the intervening act of the motor vehicle accident caused the alleged impairment. A physiatrist hired by the applicant, made a similar conclusion in his report. The Arbitrator agreed with the evidence (except for a CT scan) presented that the intervening act of the motor vehicle accident is responsible for the alleged impairment.

Northbridge submits that the proper test for causation is the ‘but for’ test. The Arbitrator noted that he ‘but for’ test requires the applicant to prove that but for the motor vehicle accident he would not suffer an impairment which causes the complaints he puts forward as the basis for his claim for IRBs. This is more stringent than the material contribution test. The material contribution test requires the applicant to prove that the motor vehicle accident materially contributed to the impairment which causes the complaint he puts forward as the basis for his claim for Income Replacement Benefits. The applicant has proven causation on either standard.

Regarding whether the applicant has a substantial inability to perform the essential tasks of his pre-accident employment, the Arbitrator noted that two determinations are required. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of his employment?

The Arbitrator reviewed the requirements of the applicant’s cleaning job in conjunction with the medical evidence from the applicant and concluded that one report failed to adequately link the tests, diagnoses, and conclusions. On that basis, the Arbitrator did not accept the report’s conclusions. The Arbitrator reviewed the medical reports provided by Northridge which concluded that the applicant required a physical or medical restriction with regard to returning to his pre-accident employment.

Based on the evidence presented the Arbitrator found that the applicant did not prove his case, and that his is not substantially unable to perform the essential tasks of his employment. The applicant is not entitled to an income replacement benefit in the amount of $389.11 per week from January 29 to the date of this decision. The applicant is not entitled to costs.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.