Fridays With Rogers Partners

At our weekly Friday meeting, Katrina Taibi discussed the Licence Appeal Tribunal’s decision in Garvey v. Economical Insurance Company, 2022 CanLII 73099 (ON LAT).

Overview

The appellant, Ms. Garvey, was injured in a motor vehicle accident on August 23, 2018.  She brought a claim for statutory accident benefits pursuant to the Statutory Accident Benefits Schedule (the Schedule) and was paid income replacement benefits (IRBs) until February 7, 2020. 

The applicant brought an application to the License Appeal Tribunal (LAT) claiming weekly IRBs from February 8, 2020 to date and ongoing.  She also claimed that she was entitled to an award under Ontario Regulation 664 because the respondent, Economical Insurance Company, unreasonably withheld or delayed payments.

Background

Prior to the accident, the applicant worked as a gas bar attendant and cashier at Canadian Tire.  Her job included tasks such as restocking shelves, inventory orders, operating the computer system for payment, and customer service. 

The applicant had a variety of pre-existing conditions prior to the accident, including chest pain, persistent tachycardia, weight gain, arthritis in her legs, hands, feet and back, headaches, shoulder pain, hearing loss, and falls.  She also had an extensive psychological medical history.

As a result of the accident, the applicant testified that she sustained “exacerbation of her depression, balance difficulties, nausea, vision problems, breathing difficulty, neck, shoulder and head pain.” 

Tribunal’s Analysis

Entitlement to IRBs Within 104 Weeks

Section 5(1) of the Schedule states that the insurer shall pay IRBs if the insured person “was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.”[1]

The adjudicator found that based on the accident-related impairments, “the applicant has a substantial inability in stocking the shelves and coolers, using a computer screen for the cash and pumps for most of the day, engaging in the cognitive activities of taking inventory and operating the cash, and to working an eight hour shift.”  The adjudicator concluded that the level of interference in the applicant’s job rises to the level of substantial inability.

Therefore, the applicant was found to be entitled to IRBs up to the period of two years after the accident.

Entitlement to IRBs Post-104 Weeks

Section 6(2)(b) of the Schedule states that the insurer is not required to pay IRBs “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.”[2]

The applicant testified that she obtained her high school equivalency and had experience working at grocery stores, fast food restaurants and gas bars at minimum wage.  She returned to work at various times after the accident. 

Immediately after the accident, the applicant tried to return to work at Canadian Tire because her employer could not find a replacement.  However, after a couple days she was unable to continue and asked for modified work, which was not available.

In September 2018, a couple weeks after the accident, the applicant started working part-time as a parking lot attendant at Impark until she was laid off in March 2020.  She argued that the work was not as physically, mentally, or cognitively challenging as working at Canadian Tire.

Furthermore, in October 2021, the applicant began working at Dollarama stocking shelves until her shoulder surgery in December 2021.

The applicant submitted that her hip surgery, bariatric (weight loss) surgery, shoulder surgery, and hearing loss were a result of the accident.  She also claimed that the accident caused her heart attack because she gained weight due to stress, anxiety, and PTSD.    However, the adjudicator disagreed and found that these were all the result of pre-existing conditions and was not satisfied that they would not have occurred but for the accident.

Based on the fact that the applicant was able to work full eight hour shifts at Impark and Dollarama, combined with the lack of proof that her surgeries and hearing loss were caused by the accident, the adjudicator found that the applicant is not entitled to IRBs past 104 weeks.

Ontario Regulation 664

Section 10 of Ontario Regulation 664 states, “if the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, … [the LAT] may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured.”[3] 

The applicant submitted that because of the delayed payments, she had to take out a litigation loan of $50,000.  However, the adjudicator found that since the applicant has been on ODSP since 2003 and IRBs are deducted from ODSP, the loan is not a result of IRBs being denied.

The applicant also submitted that the respondent unreasonably delayed forwarding information to its IE assessors to obtain addendum reports.  The respondent argued that until requested documents were received from the applicant, it did not make sense to obtain an addendum report as it would mean the insurer would continue to have to request such reports as the documents were received.

The adjudicator found that the documents requested by the respondent, including updated medical records, her ODSP file, employment files, and CPP disability file were relevant to determining what work the applicant was capable of performing and for calculating IRBs.  Therefore, it was not unreasonable that the respondent delayed paying IRBs.

Conclusion

The LAT concluded that that applicant is entitled to IRBs up to August 23, 2020 (104 weeks after the accident), payable at $362.22 (70% of the applicant’s gross income).  However, since the applicant did not provide payroll records from Impark between February 8, 2020 to March 20, 2020, interest was not awarded on that portion of the IRBs.

The claim for IRBs after August 23, 2020 was dismissed because the applicant failed to prove a complete inability to engage in any employment after the initial 104 week period for which she is reasonably suited by education, training, or experience.  Furthermore, the applicant’s claim for a Reg. 664 award was dismissed.

[1] Statutory Accident Benefits Schedule – Effective September 1, 2020.  O. Reg. 34/10, s. 5(1) [SABS].

[2] SABS, s. 6(2)(b).

[3] SABS, s. 10.