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AUTOMOBILE INSURANCE - Accident benefits - Income replacement

Tuesday, April 21, 2020 @ 7:46 AM  


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Appeal by Van de Sype from a decision of the Automobile Injury Appeal Commission (Commission) upholding a 2013 decision of the respondent concluding that he was substantially able to perform the essential duties of his employment and terminating his income replacement benefits. The appellant was injured in a 2009 motor vehicle accident resulting in abdominal, neck, shoulder, and elbow pain, sweating, and a ringing and burning sensation in his ears. For several weeks after the collision, the appellant’s injuries prevented him from performing all but the light administrative duties on the farmland and pastureland he farmed in partnership with his brother-in-law. He began physiotherapy and massage therapy. He underwent a number of Functional Abilities Evaluations that measured and correlated his ability to perform certain movements in satisfaction of various job demands. A 2012 report concluded that the appellant had been substantially able to perform the essential duties of his employment since October 2012. The Commission did not accept an expert’s testimony that the appellant’s ongoing shoulder and back symptoms were related to the accident. The Commission acknowledged that the appellant testified he could only do 50 percent of the work he did before the accident but preferred and accepted the functional assessments to the contrary.

HELD: Appeal dismissed. The Commission was correct in concluding that the appellant was substantially able to perform the essential duties of his pre-accident employment and that the respondent acted reasonably in terminating his income replacement benefits. The Commission had substantial evidence before it about the nature and extent of the appellant’s farm duties from his own testimony and the Innovative Rehabilitation Consultants Reports. The evaluation of the appellant’s progress towards being able to meet pre-injury job demands by the various assessments and reports was measured against an appropriate baseline for his job duties, the baseline established in the Innovative Rehabilitation Consultants Reports. Given the measurement tools available to the healthcare providers treating the appellant, any conclusion about his functionality must necessarily involve an extrapolation in the circumstances of his case. There was nothing inherently unreliable in an extrapolation for which there was a solid base. Whether income replacement benefits were payable was a determination of functionality and whether a person was entirely or substantially unable to perform his or her essential duties, even if the person continued to have pain, was at the crux of whether income replacement benefits were payable. The Commission did not err in finding there was no connection between the accident and the appellant’s ongoing pain and the blackouts that he experienced in 2011 and 2012. It was open to the Commission to reject the appellant’s testimony that he could do only 50 percent of the work he did before the accident in light of the various reports finding that he had the ability to perform the essential duties of his job. The Commission did not ignore or disregard evidence of his lack of functionality. Based on the evidence it accepted, the Commission was entitled to find that continued treatment would not lessen the appellant’s disability resulting from bodily injury nor would it facilitate his recovery. There was no error of law in the Commission’s finding that the appellant’s continuing condition, especially his shoulder problem, was not related to the accident.

Van de Sype v. Saskatchewan Government Insurance, [2020] S.J. No. 67, Saskatchewan Court of Appeal, R.K. Ottenbreit, J.A. Ryan-Froslie and J.A. Tholl JJ.A., February 28, 2020. Digest No. TLD-April202020002