April 28, 2016

A Graduated Mess: Failed Return to work results in back-payment of IRB’s and $5000 Special Award

Nader v. State Farm Mutual Insurance Company, [FSCO A13-003230] before Arbitrator Bujold

 

Sue Noorloos

Sue Noorloos

Personal Injury Lawyer

 

[MVC: May 2010]. The applicant, Nader, was T-boned and his vehicle was written off. At issue in the mediation was the payment of IRB’s, attendant care, housekeeping and interest. This summary will deal with the pre-104 week IRB entitlement from March 2011 to May 2012 exclusively.

Prior to the collision, Nader, an immigrant from Afghanistan with Grade 9 education, worked as a glass feeder for a window company. His job entailed lifting glass from a table one foot off the ground to chest height, then twisting to place the glass onto a machine that washed it. The process took about two minutes and was repeated throughout the shift. Although Nader had to lift many small pieces of glass, others were large and heavy (6 feet by 8 feet), weighing over 100 pounds.

As a result of the collision, Nader sustained neck, low back pain, shoulder pain headaches and insomnia. He maintained that at the time of termination of his IRB’s, he remained unable to work and took the position there were no light duties that would have allowed him to participate in a graduated return to work program. Pursuant to recommendations from a psychologist, kinesiologist and a physiatrist retained by State Farm, pre-104 week IRB’s were terminated in March, 2011.

The Arbitrator cited concerns about the reports relied upon and the approach taken by State Farm when determining entitlement. Specifically:

• The kinesologist rated the work as “medium”, recording that the usual weight of the glass was 5 to 15 pounds. There was no basis for this “usual weight” estimate. Nader’s evidence that the job required heavier lifting was accepted;
• Nader was not consulted with respect to the preparation of the kinesiologist’s report nor was he asked to review its contents for accuracy;
• The Physiatrist was clear that Nader would not able to return to work unless it was a graduated return with supports in place;
• State Farm did not provide the physiatrist an important MRI showing degenerative changes or request an addendum;
• State farm failed to ascertain whether graduated return to work was available or whether accommodation could be made by the window company before cutting off IRB’s;
• State Farm could and should have done more to clearly communicate its expectations of Nader to try to arrange a graduated return to work;
• Nader’s counsel told State Farm his client had not returned to work. It was incumbent on State Farm to make reasonable inquiries to determine the reason for the non-return and follow up with the employer about the availability of a graduated return. There was no evidence State Farm did either, nor did it proceed with a vocational assessment to explore other employment options, including upgrading.

Result

Nader was entitled to pre-104 weeks IRB’s. A back-payment of IRB’s amounting to $18,000 was payable along with a special award of $5000 for unreasonably withholding payment of benefits.

Application

Insurers must ensure that graduated return to work is available. Cutting off IRB’s for non-compliance where graduated return to work programs are no available is likely to attract a special award. Importantly, no evidence was led at the arbitration to suggest that graduated or accommodated work was possible for Nader. The physiatrist provided that graduated return with supports in place would be necessary. None of this was available. Insurers who cut off benefits without adhering to the recommendations made by their own experts run the risk of paying a special award.

Finally, the duty of good-faith requires an Insurer to proceed with a vocational assessment to explore other employment opportunities where return to work is impossible.

 

If you have questions or comments about this edition of the newsletter, contact Sue Noorloos at Legate & Associates: s.noorloos@legate.ca