February 07, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
AABS v Old Republic Insurance Company – IRBs, employment status at time of accident; is there a substantial inability to perform pre-accident employment;
16-000179/AABS v Old Republic Insurance Company, 2016 CanLII 73692 (ON LAT)
Date: October 17, 2016
Heard Before: Adjudicator Chris Sewrattan
The Applicant was injured in a car accident on May 21, 2015. She applied for and received benefits under the Schedule including medical and Income Replacement Benefits (IRB). Old Republic terminated the IRB on March 25, 2016 taking the position that she did not meet the test for entitlement. The Applicant disputes that termination and submits that she should be paid an IRB from March 25, 2016 to May 21, 2017.
The Arbitrator found on all of the evidence that the Applicant is entitled to receive a weekly income replacement benefit in the amount of $292.46 from March 25, 2016 to May 21, 2017.
The test for entitlement to payment of an income replacement benefit is set out in the Schedule. The Applicant’s she is entitled to an IRB if she can prove on a balance of probabilities that she was employed at the time of the accident and, as a result of the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment as a school bus driver. This test can be broken into three steps, and it is the third step is the truly contentious issue in this case.
Was the Applicant employed at the time of the accident?
Old Republic does not contest the first step of the test for the Applicant’s entitlement to IRB. It is a matter of fact that Applicant was employed as a school bus driver where she drove a smaller school bus. The motor vehicle accident occurred in while she was working and had four students on board.
The Applicant is entitled to an IRB only if her inability to work as a school bus driver is caused by and manifests within 104 weeks of the accident. Old Republic submits that the accident did not materially contribute to the Applicant’s alleged inability to work. The Applicant did not indicate right shoulder pain until a visit to her doctor approximately 20 days after her accident. The delay in reporting the pain is taken to suggest that the motor vehicle accident did not cause the injury that has rendered the Applicant unable to work.
The Applicant too relies on the notes of her doctor. In addition, she relies on the notes of her chiropractor. The Applicant submits that these notes indicate that right shoulder pain was an ongoing issue revealed pain as an issue approximately 10 days post-accident.
Based on a review of the evidence and medical records the Arbitrator found that the Applicant’s accident caused the condition that has resulted in a substantial inability to perform the essential tasks of her employment as a school bus driver.
- Does the Applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment as a school bus driver?
The heart of the test for an IRB is whether the applicant suffers from a substantial inability to perform the essential tasks of her or his employment. To answer this question in the applicant’s case, 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 her employment?
(a) What are the essential tasks of the Applicant’s employment?
The Arbitrator determined the essential tasks of the Applicant’s employment as a school bus driver to be:
- For five days a week, drive three times per day, one hour per time, to pick up and drop off students between their homes and school. This requires approximately three hours of driving per day.
- Conduct a safety check, which consists of the following: start the bus, lift the hood, check the fluids, check that the lights are working, look under the bus, inspect the seats, and ensure that the emergency doors open properly. The safety check takes approximately 15 minutes to complete.
(b) Is the Applicant substantially unable to perform the essential tasks of her employment as a school bus driver?
The Applicant submits that she has shown on a balance of probabilities that she is unable to perform the essential tasks of her employment based largely on the reports she commissioned from a physiatrist, and a psychologist. The reports suggest that the Applicant has difficulty checking over her shoulder while driving, in addition to difficulty with general bending, twisting, reaching, heavy lifting, and maintaining prolonged positions. Furthermore, the Applicant reported that she has difficulty sitting for more than 10-20 minutes and experiences pain when conducting shoulder checks and reaching to grip the steering wheel. There is also a diagnosis major depressive disorder, single episode; with anxiety, a special phobia, situational type (driver and passenger); and a somatic symptom disorder with pre-dominant pain that was moderate and persistent.
Old Republic relies on the Independent Medical Assessment of a physiatrist, and submits that the Applicant does not have physical or psychological conditions that render her substantially unable to perform her essential tasks as a school bus driver. Their report suggests that the Applicant sustained a WAD II injury along with associated sprains and strains to her thoracic and lumbar spine, and sprains and strains in her right shoulder girdle. The report also suggests the Applicant suffered post-traumatic headaches and greater trochanteric pain syndrome, the latter of which is not related to her involvement in the motor vehicle accident. Significantly, their physician did not consider the CAT scans, X-Rays, and MRIs that were conducted after the accident, but rather relied on the Applicant’s description of these documents. Additionally, Old Republic points to the fact that the Applicant told Dr. S that the panic and distress caused by the accident is “not that serious”. She continues to drive her own children to and from school in her personal vehicle, which is not a bus.
The Arbitrator preferred the Applicant’s assessments to Old Republic’s as their reports opined on the Applicant’s ability to perform the essential tasks of her employment without discussing what those essential tasks were. This suggests, at best, an incomplete approach to preparing the report. Moreover, Old Republic’s assessors did not consider the CAT scans, X-Rays, and MRIs that were conducted after the accident.
The Arbitrator’s decision on the Applicant’s ability to perform the essential tasks of her employment turns on her physical ability. After considering all of the evidence the Arbitrator was satisfied on a balance of probabilities that she does not have the requisite physical ability to drive the school bus in the conditions required by her employment. On that basis, the Applicant is entitled to receive a weekly income replacement benefit in the amount of $292.46 from March 25, 2016 to May 21, 2017.