Tina Lukian Appellant v. Saskatchewan Government Insurance, 2015 SKCA 147

Court of Appeal for Saskatchewan Docket: CACV2156 Citation: Lukian v Saskatchewan GovernmentInsurance, 2015 SKCA 147Date: 2015-12-22Between:Tina LukianAppellantAndSaskatchewan Government InsuranceRespondentBefore: Richards C.J.S., Lane and Ryan-Froslie JJ.A.Disposition: Appeal AllowedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Ryan-FroslieOn Appeal From: 2011 SKAIA 38 , 2011 SKAIA 038Heard: 27 November 2015Counsel: Jonathan Abrametz for the Appellant Dale Brown for the Respondent Richards C.J.S. I.

Introduction [1] The appellant, Tina Lukian, was employed as both a waitress in a restaurant and as a housekeeper in a hospital. She sufferedan injury in an automobile accident and was unable to work. As a result, Ms. Lukian began receiving benefits from SaskatchewanGovernment Insurance (SGI) under The Automobile Accident Insurance Act, RSS 1978, c A-35 [Act]. [2] SGI ultimately discontinued Ms. Lukian’s income replacement benefits on the ground that she was able to substantiallyperform the essential duties of her employment. Ms.

Lukian then appealed to the Automobile Injury Appeal Commission and contended,among other things, that she was not able to lift mattresses and hence could not perform her housekeeping duties at the hospital. TheCommission rejected this line of argument because, in its view, Ms. Lukian had not established either that lifting a mattress was anessential duty of her employment or that she could not safely lift a mattress. [3] Ms. Lukian now appeals from the decision of the Commission on the basis that it improperly reversed the burden of proofwith respect to her claim.

More specifically, she contends the Commission wrongly required her to show that she could not perform herhousekeeping job rather than requiring SGI to establish that she could perform it. [4] As explained below, I accept Ms. Lukian’s submission. The Commission did improperly reverse the onus of proof. As aresult, its decision must be set aside and this matter remitted to it for reconsideration. II. general background [5] Ms. Lukian was employed on a part-time basis as a waitress in a restaurant and as a housekeeper in a hospital.

Her neck andback were injured on January 26, 2009 in a motor vehicle accident. [6] Ms. Lukian submitted an application for benefits to SGI and began receiving “income replacement benefits” under

Part VIIIof the Act. [7] The entitlement to income replacement benefits is governed by s. 113 of the Act. It reads as follows: 113(1) This

section does not apply to a student.

(2) An insured is entitled to an income replacement benefit if, as a result of an accident, the insured: (

a) is unable to continue an employment held by the insured at the date of the accident; … [8] The ability to “continue an employment” within the meaning of s. 113 is defined in s. 14 of The Personal Injury BenefitsRegulations, RRS c A-35 Reg 3: 14 For the purposes of the Act, an insured is unable to hold employment if a bodily injury that was caused by the accident renders theinsured entirely or substantially unable to perform the essential duties of the employment that the insured: (

a) performed at the date of the accident; or

(

b) would have performed but for the accident. [ 9 ] Ms. Lukian attended the Canadian Back Institute (CBI) for treatment. Her discharge report, dated June 16, 2009, states that she “presented with whiplash-associated disorder, cervical, grade II, with cervicogenic headaches and possible occipital neuralgia.” CBI recommended an independent exercise program and indicated that it would monitor Ms. Lukian’s return to work program. [ 10 ] In August of 2009, an occupational therapist with OnTask Rehab Inc. performed a physical demands analysis in relation to Ms. Lukian’s housekeeping position.

The therapist completed a job shadow and then itemized Ms.

Lukian’s duties with respect to cleaning patient rooms as follows: • Includes wipe down of entire room (low level, waist level, overhead level), high dusting, removing/changing garbages, dry mopping/wet mopping entire floor incl. under beds, changing curtains if necessary, cleaning windows, cleaning washroom (tub, toilet, commode, mirror) • Discharge cleaning: total room clean including curtain changing/cleaning, clean bed/make bed, cleaning tables/chairs, spot washing walls, a precaution clean would involve deeper cleaning • Performed throughout the day • Approximately 75% of total job duties Ms.

Lukian confirmed that this description was accurate. [ 11 ] Ms. Lukian began attending a tertiary assessment at FIT in August of 2009, with treatment continuing into December of 2009. During this assessment, an occupational therapist observed and interacted with Ms. Lukian for a total of 37 days. The FIT discharge report dated January 13, 2010 concluded that Ms. Lukian had the ability to perform the job demands of both her positions as housekeeper and waitress. These conclusions were based on a further job site assessment that had been performed by OnTask Rehab Inc. which had concluded that Ms.

Lukian could progress to full-time duties within four weeks. She resumed her back-to-work program on January 13, 2010. [ 12 ] Ms. Lukian’s physician, Dr. Goluboff, submitted a letter to SGI on January 22, 2010 in which he stated that Ms. Lukian has “not been able to resume her activities either at the hospital or as a waitress.” (At the Commission hearing, Dr. Goluboff acknowledged that his opinion was based solely on information obtained from Ms. Lukian and that he had not performed strength or functional testing.) [ 13 ] SGI discontinued Ms.

Lukian’s income replacement benefits in a decision letter dated February 3, 2010. It did so on the basis that Ms. Lukian was substantially able to perform the essential duties of the employment she had held at the time of the motor vehicle accident. III. the commission hearing [ 14 ] At the hearing before the Commission, Ms. Lukian’s submissions focused on two aspects of her housekeeping job: (

a) her ability to lift the pails of water used for mopping and (

b) her ability to lift hospital bed mattresses. The issue concerning the mattresses is the one on which this appeal turns and, therefore, I will focus on how it played out before the Commission. [ 15 ] Ms. Lukian called Helen Miller as a witness. Ms. Miller had worked as a housekeeper at the hospital for years and testified about the nature of the housekeeping job.

Most significantly, she said that when housekeepers did “precaution rooms” they had to “thoroughly clean the beds, lift the mattress, clean underneath ….” She went on to explain that the mattresses were “rubber” and “really heavy,” heavier than the mattresses found in a house. Ms. Miller said it was necessary to “lift up” the mattresses and disinfect the bottom of them. In response to questions from the Commission, Ms.

Miller also said it was “standard practice” for two people to be involved in cleaning and turning a mattress but that, because of staff shortages, this did not always happen and housekeepers handled things on their own. [ 16 ] Ms. Lukian also testified. She said that, on a discharge, it was necessary, among other things, to pull a bed away from the wall, wash the headboard and then “… start with the mattress, sides, go to the flips, wash all that ….” This, as she explained, was necessary because bodily fluids often got under the mattress. In this regard, Ms.

Miller said there were situations where she would have to lift a mattress by herself. [ 17 ] Ms. Lukian also explained that, even when a patient was not being discharged, it was sometimes necessary to clean a bed if a nurse requested that such work be done. She did not accept Ms. Miller’s evidence that a housekeeper would normally work with a second person. Ms. Lukian said that, for normal cleaning, she would work on her own.

There would be a second person only if there was a discharge-type clean of a room and even then only if there was enough staff to make a second person available. [ 18 ] As to her ability to lift a mattress, Ms. Lukian explained that she got “flare ups”—pain at the back of her neck and head and into her shoulders, accompanied by headaches. She indicated that she could not lift a mattress while experiencing a flare up. [ 19 ] Apparently, neither Ms. Lukian nor her counsel had raised the specific issue involving lifting mattresses with SGI in advance of the Commission hearing.

However, SGI did not ask for an adjournment so that it could call further evidence. Not surprisingly, the Commission based its decision solely on the testimony and documents that were placed before it with respect to this question. [ 20 ] In the end, the Commission held that Ms. Lukian’s appeal should be dismissed. It wrote as follows by way of conclusion: [103] Based on the limited evidence we received, we could not say lifting a hospital mattress on her own amounted to an “essential duty of employment” for the Appellant.

However, as stated earlier, even if we accepted lifting a hospital mattress on her own was an essential

duty, we had no evidence as to how much the mattress weighed and that the Appellant could not safely lift it. IV. analysis [21] Ms. Lukian takes issue with the Commission’s decision on two grounds. First, she contends the Commission improperlyreversed the burden of proof and required her to establish that she could not perform the essential duties of her employment, rather thanrequiring SGI to prove that she could perform those duties. Second, Ms. Lukian suggests the Commission misapprehended the evidenceso as to have committed an error of law.

I find it necessary to deal only with the reversal of onus issue. [22] SGI agrees with Ms. Lukian and accepts that, having begun paying her income replacement benefits, it bore the onus ofproving she was no longer entitled to receive them. More specifically, SGI agrees that, to successfully deny Ms. Lukian incomereplacement benefits, it had the burden of establishing she was substantially able to perform the essential duties of her employment.

See:Collis v Saskatchewan Government Insurance (1998), (SK KB), 165 Sask R 108 (QB) at para 5; Job vSaskatchewan Government Insurance, 2004 SKCA 164 at para 11, 257 Sask R 85. [23] This, however, was not the approach taken by the Commission. Its line of reasoning was that Ms. Lukian could not succeedon her appeal because she had not proven either that lifting a mattress was an essential duty of her employment or that she was unable tolift a mattress.

All of this is clearly revealed in the following key paragraphs of the Commission’s decision: [95] Both counsel addressed the issue of whether the Appellant was unable to perform the essential duties of her hospital employmentas set out in Regulation 14. This was raised in the context of the Appellant’s testimony she had to on occasion, lift a hospital bed mattressby herself. [96] Once again, it would have been preferable for the Appellant to have identified to Mr. Andres she on occasion had to lift ahospital bed mattress by herself. This would have allowed Mr.

Andres to weigh the mattress to ascertain if this task was beyond the safeweight amounts the Appellant was able to lift. … [98] In regard to cleaning a “discharge room”, the duties indicate “clean bed/make bed”. Perhaps this statement includes lifting amattress, but we cannot be certain of that.

Even if we assume it does, there is no indication how much the mattress weighs and whetheror not this meant the mattress was lifted by the Appellant and a co-worker or by the Appellant. … [100] Without essential details like how much a hospital mattress weighs, we cannot conclude the Appellant was not able to lift ahospital mattress.

We also did not receive clear evidence as to how many times the Appellant would have to lift a hospital mattress onher own during her shift or evidence to confirm it was an essential duty. … [103] Based on the limited evidence we received, we could not say lifting a hospital mattress on her own amounted to an “essential dutyof employment” for the Appellant.

However, as stated earlier, even if we accepted lifting a hospital mattress on her own was an essentialduty, we had no evidence as to how much the mattress weighed and that the Appellant could not safely lift it. (Emphasis added) [24] In the circumstances of this case, the Commission should not have asked whether Ms. Lukian had proven that lifting amattress was an essential duty of her employment and that she could not do such lifting. It should have put the shoe on the other foot andasked whether SGI had proven that mattress lifting was not an essential duty or had proven that Ms.

Lukian could safely lift a mattress. [25] On this front, it is perhaps worth noting para. 102 of the Commission’s decision. There, the Commission advised that, if themattress lifting task was essential, Ms. Lukian should have raised that issue with Ms. Parker and Mr. Andres, the occupational therapistswho completed evaluations of her position. In my respectful view, this is not a valid criticism of Ms. Lukian. The description of dutiesfound in the OnTask Rehab Inc. report included “clean bed/make bed.” To Ms.

Lukian, these words would no doubt have appeared toinclude all of the sub-procedures involved in cleaning a bed, including lifting a mattress. I see no basis on which she can be criticized orfound wanting for having failed to demand a more detailed breakdown of what was involved in the words “clean bed/make bed.” V. conclusion [26] I conclude that Ms. Lukian’s appeal must be allowed. The Commission’s decision is set aside and the issue of Ms. Lukian’sentitlement to income replacement benefits is remitted to it for reconsideration. [27] Ms.

Lukian shall have her costs in relation to this appeal to be assessed under column 2 and in relation to the hearing beforethe Commission, which shall be fixed at $1,000.

“Richards C.J.S.” Richards C.J.S. I concur. “Lane J.A.” Lane J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.