December 11, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Pafco Insurance, LAT 16-003683 2017 CanLII 69454 (ON LAT)
Decision Date: October 18, 2017
Heard Before: Adjudicator Robert Watt
ENTITLEMENT TO IRBs: Impairments not shown to cause applicant to be unable to work
The applicant was hurt in a car accident on July 17, 2013 and applied for benefits. Pafco accepted the applicant’s claim for IRBs and paid the $400.00 per week from July 22, 2013 to November 25, 2014. Pafco’s stated in a November 25, 2017 letter that the applicant no longer qualified for an IRBs after November 25, 2014, and therefore was not entitled to any further benefits. The applicant challenges that denial in this matter.
In its written submissions, Pafco now also claims that, in error, it continued the payments until March 9, 2015, overpaying the applicant a further $6,057.14. Pafco seeks a repayment by the applicant of the overpayment.
- Did the applicant sustain impairment within the meaning of the Schedule as a result of the accident?
- Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 for the period November 25, 2014 to date, and ongoing?
- The applicant has not proven beyond a balance of probabilities that he has met the requirements of section 6 of the Schedule, and therefore is not entitled to receive a weekly IRB in the amount of $400.00 for the period November 25, 2014 to date, and ongoing.
Regarding the overpayment issue raised by Pafco in its written submissions, the overpayment occurred through Pafco’s error. Subject to any limitation periods, this issue however was not raised at the case conference, and therefore is not an issue currently before the Tribunal. Pafco will have to bring a new application for this issue, to be heard by the Tribunal at another time.
Did the applicant sustain impairment within the meaning of the Schedule as a result of the accident, and if so, did it cause the applicant to be unable to work?
The applicant is seeking to continue his IRBs for a period that is within 104 weeks after the disability, and then continues on after 104 weeks after the disability. Section 6 of the Schedule thus requires him to show he suffers a substantial inability to perform the essential tasks of his or her employment and for the period after 104 weeks, that he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. The Adjudicator found that as of November 25, 2014 he does not meet either test for the reasons below.
The applicant is 50 years of age and had been working full time as a machine. His job was considered “a casual pace” as the worker stands by a machine, while the machine performs the majority of the work. The worker has to change the drill bits of various weights between 30-40 lbs. throughout the day. He had no previous medical problem that interfered with his working full time.
The ambulance report dated July 17, 2013 indicated that there was very little damage to the applicant’s car. No air bags were set off by the accident. The applicant got out of his car without any assistance and walked around unassisted, talking to the police. There was no trauma noted. The applicant complained about a “stabbing back pain in his lower back area “. The Hospital Report dated July 17, 2013, also described similar findings as set out in the ambulance report. The other many medical reports, however, submitted by both parties are conflicting, and at odds with one another, as to what the medical conditions are as a result of the accident, and their effect on the applicant.
The Adjudicator reviewed the significant medical evidence, and the testimony. The majority of the medical evidence agreed that there were mild degenerate changes of the lumbar spine, which was causing the pain claimed by the applicant. All agreed that the changes and the pain were not exacerbated as a result of the accident.
There was no evidence put before the Adjudicator that the applicant sought work at any modified job at his former place of work, or at any new job. Nor was there any evidence of a complete inability to do those jobs as a result of the accident.
Based on the above, the Adjudicator concluded that the applicant has not met his onus in establishing that as of November 25, 2014 that the accident resulted in either a substantial inability to perform the essential tasks of his or her employment, or for the period after 104 weeks, that he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. Thus, he is not entitled to an IRB after November 25, 2014.