Volume. 8 Issue. 29 – August 7, 2024
This week’s decision finds the Tribunal considering whether an Applicant, injured in a March 2019 MVA, remained entitled to post 104 IRB from January 2023 ongoing. The focus on the impairment caused by the accident and any ability to function in work setting was central to the analysis.
Re-Training Not A Viable Option – Post 104 IRB Confirmed
Complete Inability – Injured in a March 2019 MVA, the Applicant Alleyne sought post 104 IRB at the rate of $600/week, from January 27, 2023 to date and ongoing. It was the position of Travelers that Alleyne had healed from his main complaints and that there were gaps in the medical records relied upon. In addition, Alleyne “ought to be able to find other types of employment within his skill sets and that the legal test does not require the same job or wage as a requirement for the legal test for a post 104 IRB.” However, the Tribunal, in 23-005098 v Travelers, ultimately found that Alleyne’s chronic pain with functional impairments resulted in a complete inability to engage in any employment or self-employment for which he was reasonably suited by education, training, or experience.
Psychological IE Not Accepted
Travelers had Alleyne assessed by Dr. Gerber psychologist on two separate occasions, in October 2020 and then December 2022. In neither assessment did Dr. Gerber find that there were symptoms that met the criteria for a DSM-5 diagnosis. In the latter assessment, it was noted that Alleyne’s depression and anxiety had decreased, but his pain and disability perceptions had increased. Alleyne’s prognosis for further improvement of his collision-related psychological symptoms was said to be guarded. While generally accepting of Gerber’s assessment, the Tribunal was “not convinced that Dr. Gerber as a psychologist is the proper medical professional for the assessment of Chronic Pain with functional impairments, and in many of the referral questions in the questionnaire from both of his reports he defers the questions to a medical professional.”
In the most recent report, Alleyne was found not to be suffering from a complete inability. This was found “inconsistent with his later stated opinion that the applicant would be suited for a sedentary job with few physical demands and by the fact that Dr. Gerber also defers to a vocational assessor. This is not consistent with the applicant’s ability to engage in any employment or self employment for which the applicant is reasonably suited by education, training, or experience. I also find Dr. Gerber does not have the medical expertise to make such a recommendation.” The Tribunal further placed “very little weight on the report from Dr. Yee”, orthopeadist. Dr. Yee did not address chronic pain syndrome, “perhaps correctly as he is not a chronic pain specialist.”
Applicant Confirmed with Chronic Pain Syndrome
From April 2021, Alleyne continued to seek remedies for his impairments, culminating in a March 2023 chronic pain assessment. This assessment concluded that the applicant suffers from chronic neck pain, chronic headaches, chronic low back pain, chronic bilateral wrist pain and psychological/emotional disturbances associated with symptoms of depressed mood, anxiety, and Kinesiophobia. In addition, Alleyne demonstrated “notable features of deconditioning, fear-avoidance and psychosocial factors are all elements that the applicant meets for a diagnosis of chronic pain syndrome.”
The Tribunal concluded that Alleyne’s chronic pain syndrome will affect his employability, finding that he had “presented a detailed account of the applicant’s accident-related injuries and I accept Dr. Smith’s report as the most credible and in-depth analysis of the applicant’s quest for answers of his accident-related injuries and future prognosis.” With respect to a complete inability, “I accept Dr. Smith’s opinion that the applicant’s pain-related impairments limit the applicant from heavy lifting, overhead lifting, prolonged walking, prolonged sitting, prolonged standing, repetitive bending/pushing/pulling, higher axial impact physical activities and sustained extension or lateral flexion. Further Dr. Smith opines that the applicant has some degree of cognitive impairment related to chronic pain consistent with concentration, forgetfulness and fatiguability.”
Respondent Confirms Numerous Employment Options
For their part, Travelers argued that “although it may not be possible for the applicant to return to his job at Purolator, there are employment opportunities available for his qualifications…his employability is not completely compromised as per the Schedule…the applicant participated in online Hebrew courses for approximately six months and that his participation in the making of electronic music shows that he can focus, function, and learn.” The vocational consultant for Travelers had “identified four positions for direct placement or with a period of on-the-job training that in principle they consider appropriate for the applicant, providing they are within his physical restrictions…Their conclusions are based on three tests completed by the applicant, the Wonderlic personnel test, the career ability placement survey, and the wide range achievement test.”
Physically Capable However…
The Tribunal found that while Alleyne may well be physically capable of the employment options suggested, he “would not have the concentration, persistence and pace due to his physical pain and functional impairments to be able to sustain or even complete many of the requirements from the above listed job descriptions. My overall observation of the applicant during the proceeding is that he was truthful and forthcoming, polite and did not shy away from difficult questions. He was able to participate however his visible movements and need for breaks due to his physical pain was notable and consistent with the medical conclusions of Dr. Smith. It is my view that any employer would have a difficult time dealing with the accommodation requirements that the applicant would require to make it through an entire shift even on a part time basis.”
Retraining Not a Viable Option
Further, “training would be a difficult task for any employer not sympathetic to the applicant’s circumstances not only because of the physical pain but also because of his cognitive limitations. This is consistent with the applicant’s attempts to learn Hebrew online in a course which consisted of two hours per week of online instruction where he was unable to complete this course. Through the proceedings I also learned that the applicant engaged in electronic music before the accident, however he is no longer able to engage in electronic music and is going to sell the equipment. In my view these are all examples that illustrate that the applicant would have a difficult time learning and maintaining any form of employment.”
Accordingly, on a balance of probabilities Alleyne was confirmed to suffer from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. IRB at the rate of $600/week was confirmed from January 27, 2023 to date and ongoing.
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