Matthew R. Cass Appellant (Appellant) v. Saskatchewan Government Insurance, 2021 SKCA 130

Court of Appeal for Saskatchewan Docket: CACV3356 Citation: Cass v Saskatchewan Government Insurance , 2021 SKCA 130 Date: 2021-09-29 Between: Matthew R. Cass Appellant (Appellant) And Saskatchewan Government Insurance Respondent (Respondent) Before: Jackson, Schwann and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Kalmakoff On appeal from: 2018 SKAIA 55 , Regina Appeal heard: April 14, 2021 Counsel: Matthew Cass, self-represented Steven Haichert for the Respondent Schwann J.A.

I. INTRODUCTION [ 1 ] Matthew Cass suffered multiple physical injuries in a motor vehicle accident that occurred on October 24, 2016 [MVA], in Estevan, Saskatchewan. Following his accident, Mr. Cass received an income replacement benefit [IR benefit] and a rehabilitation benefit from Saskatchewan Government Insurance [SGI], pursuant to

Part VIII of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ Act ]. [ 2 ] SGI terminated Mr. Cass’s IR benefit when he returned to work in April of 2017, having concluded that Mr. Cass was substantially able to perform the duties of the employment he had held at the time of the MVA. Shortly thereafter, SGI also terminated his rehabilitation benefit. No appeal was taken from either decision by Mr. Cass. [ 3 ] Several months after his benefits were terminated, Mr. Cass left his place of employment and applied to SGI to have those benefits restored. SGI denied his application. Mr.

Cass appealed SGI’s decision to the Automobile Injury Appeal Commission [Commission]. In a decision rendered on December 21, 2018, the Commission dismissed Mr. Cass’s appeal: Cass v Saskatchewan Government Insurance , 2018 SKAIA 55 [ Commission Decision ]. [ 4 ] Mr. Cass now appeals the Commission Decision to this Court, pursuant to s. 194(1) of the Act . For the reasons expressed below, Mr. Cass’s appeal must be dismissed. II. FACTUAL BACKGROUND [ 5 ] The MVA occurred when Mr.

Cass was forced to lay down his motorcycle to avoid a collision with the driver of a vehicle, who had improperly made a left turn in front of him. Mr. Cass suffered numerous injuries. The hospital emergency outpatient record for Mr. Cass reported pain in his left jaw and left side of the neck, grade II whiplash, left shoulder pain, and mild abrasions to his left hip, right elbow and knee. An X-ray of the cervical spine (neck area) was taken the following day. The diagnostic report from that procedure noted Mr.

Cass’s neck alignment to be satisfactory, no prevertebral soft tissue swelling, no bone, disc or joint abnormalities and no fractures. An X-ray of Mr. Cass’s left shoulder and clavicle area also revealed no fractures and found the acromioclavicular joint [AC joint] was in good alignment. In terms of an overall opinion, the writer of the radiology report stated, “No significant abnormality”. [ 6 ] At the time of his accident, Mr. Cass was employed as a labourer in the oil and gas sector. [ 7 ] Mr.

Cass applied for and received an IR benefit and a rehabilitation benefit (physiotherapy) pursuant to the no-fault provisions of the Act . He began physiotherapy treatment in November of 2016. Several reports that were provided to SGI by the physiotherapist who treated Mr. Cass commented on his slow progress and suggested an exaggerated pain response on his part. [ 8 ] In December of 2016, Dr. Tahir Mahmood, an orthopaedic surgeon, ordered an ultrasound of Mr. Cass’s left shoulder. The findings of that diagnostic procedure were these: “Tendons of the rotator cuff are intact.

No calcification, effusion nor impingement is demonstrated. Posterior labrum, spinoglenoid groove and AC joints are unremarkable”. In his report of January 18, 2017, following that ultrasound, Dr. Mahmood wrote, “I have explained to him the findings of the ultrasound and I do not see any further intervention is needed. He will benefit from the physiotherapy and can go back to work once assessed by the physiotherapist. No follow-up appointment has been scheduled”. [ 9 ] Mr. Cass underwent a tertiary evaluation by an interdisciplinary team of health care professionals with the Regina Qu’Appelle

Health Region in January of 2017. The assessment was designed to review Mr. Cass’s medical management to date, confirm his diagnosis, assess his status and provide appropriate treatment. In part, it included a functional assessment of the physical demands of his job. That assessment was summarized as follows: Mr. Cass is currently functioning within a medium physical demands level with decreased endurance with respect to the left upper extremity. Mr. Cass is currently not meeting his job demands and requires work hardening in the form of a return to work plan. Return to work planning is dependent upon Dr.

Mahmood’s consultation report, which was not available at the time of the assessment. If possible, a graduated return can commence in the form of modified hours and duties. SGI has indicated a Vocational consultant will be added to the file to assist with this return to work plan prior to admission to tertiary treatment. Otherwise, the anticipated treatment timelines may require adjustment based on when work hardening can begin. [ 10 ] The tertiary assessment team recommended that Mr.

Cass attend a four-week functional rehabilitation program [FR program], followed by four weeks of a graduated return-to-work program [GRTW program]. Under the FR program, Lindsey Scott, Mr. Cass’s occupational therapist, assessed his physical abilities, worked to improve his conditioning and contacted his employer to determine the nature of his job duties and the capacity required for him to perform those duties. Ms. Scott also consulted with Mr. Cass’s employer on a return-to-work plan. In its functional testing

summary, reported on March 17, 2017, the FR program team wrote as follows: Mr. Cass demonstrated the ability to function with a medium level of work, with abilities into the low heavy physical demands level for bilateral front carry. He self-limited on waist to crown lifting due to reported neck pain. He is not meeting full job demands at this time; however it is expected he will be able to progress to full job duties during his 4 week graduated return to work (GRTW). There are no permanent functional restrictions that would prevent Mr. Cass from meeting his job demands. [ 11 ] Even though Mr.

Cass continued to report neck, throat and sinus problems, Ms. Scott considered him to be able to return to work and perform his prior duties; and, importantly, there was no pathology (cause or effect from an injury or disease) that limited him from meeting the demands of his job. Mr. Cass was discharged from the GRTW program without restriction and no further treatment was recommended by the tertiary assessment team. [ 12 ] Mr. Cass returned to full-time hours in April of 2017. [ 13 ] SGI terminated Mr. Cass’s IR benefit on April 27, 2017. In its decision letter of that same date, SGI concluded that Mr.

Cass was substantially able to perform the essential duties of his pre-accident employment; and, as such, his entitlement to an IR benefit was terminated [IR Benefit Decision Letter]: It is my understanding that you completed rehabilitation to the point that you are substantially able to perform the essential duties of the employment you performed at the time of the accident. This was determined by the information supplied by the Functional Rehabilitation Program.

Since you were capable of performing these duties, and you returned to your employer’s payroll April 10th, 2017, effective this date your income benefits is concluded. Mr. Cass was informed of his right to appeal that decision, but he chose not to do so. [ 14 ] Mr. Cass attended a follow-up visit with the FR program team on May 1, 2017. Once again, he reported neck pain, throat and sinus problems, mild pain in his left shoulder and that he was chewing on the inside of his cheek. In the discharge report of May of 2017, Ms. Scott commented as follows with respect to Mr.

Cass’s progress: During the May 1, 2017 follow-up visit, Mr. Cass reported to the occupational therapist that he continued to have neck symptoms including muscular tension, throat and sinus problems. … He indicated he continues to have left shoulder tension and symptoms, but reported these have improved. Mr. Cass reported his pain to be 4–5/10 in his neck and 2–3/10 in his left shoulder prior to completing functional testing. A pain rating was not obtained following functional testing. The occupational therapist tested the tasks for which Mr.

Cass was not meeting job demands prior to beginning his GRTW. … … Although, Mr. Cass is not meeting full job demands at this time, there is no pathology to limit his ability to meet his demands. He reported work has been going well. He indicated there have recently been road bans and he has been mainly completing tasks that included clean- up, maintenance, checking and replacing valves, and dragging hoses. He indicated above shoulder work has not been occurring frequently. Mr. Cass reported the road bans will likely be ending by the week of May 8, 2017 and he will then be required to complete full duties. … Mr.

Cass reported he was not concerned regarding his ability to manage his full duties at work. The occupational therapist discussed the importance of using pacing and microbreaks at work, strategies which Mr. Cass confirmed he has already been using. … Mr. Cass also reported his employer will be sending him for training so he can also work as an operator in the field, a job he indicated he plans to do on his scheduled days off as overtime work. (Emphasis added) [ 15 ] A hand-written note made by the occupational therapist who saw Mr.

Cass on May 1, 2017, indicates as follows: “Client demonstrated improved quality of movement during floor to waist lift and bilateral front carry – he demonstrated the ability of 55 pounds occasional on both of these tasks” . The writer went on to say, “Client reported work has been going well. He indicated there have recently been road bans, and he has mainly been completing tasks including clean up, maintenance, checking + replacing valves and dragging hoses. … Client indicated he was not concerned regarding his ability to manage his full duties at work”. [ 16 ] Ms.

Scott, who helped author the discharge report, had reviewed a functional abilities evaluation that had been completed by

Shauna Diewold on May 1, 2017. In her testimony before the Commission, Ms. Scott expressed the view that Mr. Cass was substantially able to perform the essential duties of his employment after being discharged from the GRTW program. She offered the following opinion: A Yes. Although he was not meeting the frequency requirements for floor to waist lifting and bilateral front carry, he was meeting the weight requirement. He was also not meeting the frequency requirements for forward bending.

It was expected that he could complete all of these tasks with pacing and that he would continue to progress to job demands with on-the-job work hardening. He self-limited during his waist to ground lifting due to reported pulling in his neck and left shoulder pain and his biomechanical maximum could not be determined because of that. But, based on his [MVA]-related diagnosis, there was no permanent restrictions or impairments that would prevent him from returning to his pre-injury level of function.

So it was determined by the treatment team that he was safe to return to his pre-injury job duties during his graduated return to work. By the end of the return to work, he was working full hours and the team recommended that he progress to full duties . (Emphasis added) [ 17 ] Stan Vogt was the physiotherapist with the FR program who had treated Mr. Cass. He testified to the following effect with respect to Mr. Cass’s need for further physiotherapy treatment: Q Okay. Did you see - or when Mr. Cass was in - or when you were preparing that document, did you see - or when Mr.

Cass was in treatment, sorry, did you see any pathology that would limit him from doing his job duties? A I did not see any pathology at that time that would limit his ability to perform his job duties. During that assessment the cervical range of motion was within normal limits with the exception of neck rotation which was 80 to 85 percent of full movement. The left shoulder range of motion when moved passively and supine was full but when Mr. Cass was in sitting he lacked 15 degrees of shoulder flexion but the other movements were full. Strength testing did not reveal any weaknesses.

Neurological testing did not show any deficits. Sensation appears to be normal, and there were no specific muscle weaknesses detected. With examination of the shoulder at that time there was no obvious dysfunction detected. There was no impingement. There was - there was no signs of instability. Mr. Vogt opined that, although Mr. Cass had reported high levels of pain, his strength and mobility were not indicative of his reported level of discomfort. On that basis, and because there was no pathology that would otherwise limit Mr. Cass’s ability to perform his employment functions, Mr.

Vogt did not recommend further treatment. He felt Mr. Cass could manage with home exercise. [ 18 ] On the strength of the FR program report, notably Mr. Vogt’s opinion, SGI issued another decision letter on June 20, 2017 [Rehabilitation Decision Letter], in which it terminated further physiotherapy benefits. Mr. Cass did not appeal from the Rehabilitation Decision Letter. [ 19 ] Notwithstanding his return to work, Mr. Cass continued to see his own physiotherapist with complaints about ongoing pain in his neck, midback and left shoulder.

His physiotherapist recommended that he refrain from lifting more than 25 pounds. Mr. Cass also sought medical assistance from his personal physicians – Dr. Allison Christie and Dr. Charles Omosigho – for ongoing pain. Mr. Cass filed several reporting letters from these two physicians with SGI. Dr. Omosigho referred Mr. Cass to Dr. Mahmood, who, as mentioned, first saw him in December of 2016. In July of 2017, Dr. Mahmood reported, “Examination showed him having good range of movements involving his shoulder and no signs of impingement or weakness was noted.

There has been no positivity for Tinel test for the ulnar nerve. … With regard to the shoulder … [he] can do his tasks within a level of his comfort and avoid any heavy lifting or carrying if not tolerated”. [ 20 ] Mr. Cass continued to see his physicians with complaints of ongoing pain, which led to an MRI being ordered of his cervical spine. The MRI, which was conducted on August 27, 2017, resulted in the following assessment: There is exaggeration of normal cervical lordosis [curvature]. Vertebral body heights are maintained. Disc spaces are preserved.

No suspicious focal osseous lesion [constriction] or marrow replacing process. The cervical cord demonstrates normal signal and bulk. Visualized brain parenchyma [functional tissue] is normal in appearance. … IMPRESSION: Very minor multilevel age-related degenerative changes. No significant neural foraminal [narrowing] or spinal stenosis. [ 21 ] On September 29, 2017, Mr. Cass left his place of employment and returned to his home in Ontario. Mr. Cass testified that his employer had placed him on a leave of absence because he was unable to perform the physical demands of his employment duties. Mr.

Cass did not call his employer as a witness at the Commission hearing nor did he file any report to support his testimony. [ 22 ] This turn of events led Mr. Cass to apply for the reinstatement of his IR and rehabilitation benefits. As he stated in a September 29, 2017, email to SGI, “work and my doctors and physio people are all [in] agreement on I can’t work because of my injury’s [ sic ]. Maybe this should be a sign that your doctors that saw me was [ sic ] wrong”. [ 23 ] In response to Mr. Cass’s reinstatement application, SGI sought a file review from Dr. Layton Burkart, a medical consultant

engaged by SGI to review claims. Dr. Burkart reviewed SGI’s medical file, as well as the reports Mr. Cass had supplied to SGI from his medical providers. In his October 15, 2017, reporting letter, Dr. Burkart offered the following opinions: (a) “given all of the negative imaging studies”, Mr. Cass’s injuries were of “minor severity”; (

b) the MRI only showed age-related, “multilevel degenerative changes”; and (

c) there was no evidence to support the need for “ongoing active treatment” that Mr. Cass could not provide “on his own”. [ 24 ] In answer to the bottom-line question posed by SGI – whether the additional information supplied by Mr. Cass would change his opinion from that offered by the tertiary team about his ability to return to work – Dr. Burkhart wrote as follows: There is no new information here that would change the opinions offered by the tertiary treatment team, which I would agree with. Mr.

Cass’s graduated return-to-work and eventual ability to meet full job demands as has been demonstrated in his Functional Capacity Evaluation. These new physician reports seem to be prior to the MRI study which really has not shown any injuries related to the accident, but more age-related, multilevel degenerative findings, and certainly would not be expected to limit any pre-accident activities. In fact, I would find it counter-productive for him to have ongoing treatment modalities and time off work which would only serve to further medicalize a condition which is not severe enough to require ongoing treatments.

I suspect a large part of his delay in recovery was due to non-accident related causes and the psychosocial stressors that have been identified. [ 25 ] On October 27, 2017, SGI issued a decision letter in response to Mr. Cass’s reinstatement application, concluding that it had not been persuaded to change its earlier decision about his entitlement to

Part VIII benefits and did not support the reinstatement of his benefits: The information provided to our office following the June decision, has not altered the opinion offered in the past. Our review of your file does not support a requirement for further treatment or assessment, relating to an injury suffered in the motor vehicle accident of October 24th, 2016. As well, this information does not support the reinstatement of an income benefit. [ 26 ] As mentioned, Mr. Cass returned to Ontario, where he resided from October of 2017 until October of 2018.

During this period of time, he was unemployed, received employment insurance benefits and focussed on recovery through physiotherapy treatment and exercise. Mr. Cass attended the Bayshore Physical Therapy Clinic in Ontario. In an opinion letter, dated February 12, 2018, a physical therapist with that clinic recommended that Mr. Cass receive a further course of 20 physiotherapy treatments [Ontario Report].

The analysis of its findings and recommendations are as follows: Analysis of Findings: MVA related chronic neck and thoracic spine musculoskeletal and joint dysfunction, TMJ [jaw] dysfunction, left rotator cuff tendinopathy. Recommendations: Physical therapy is recommended for an initial 20 visits, twice a week, to help reduce symptoms, improve mobility, range of motion, flexibility, strength and conditioning. Registered Massage Therapy is also recommended to help assist in the global tone reduction of Mr. Cass’s back and neck region. Because of Mr.

Cass’s inability to carry out his hobby, and the potential psychosocial impact on him, a 6-month gym membership is recommended as well as 10 personal training sessions to compliment Physical Therapy to re-establish a positive lifestyle change, thus improving mental and physical outcomes. III. THE COMMISSION DECISION [ 27 ] The Commission accepted that Mr. Cass had suffered multiple injuries in the MVA and that he continued to experience symptoms from the accident as of the hearing date in December of 2018.

However, the Commission went on to frame the issue before it in these terms: [43] … This conclusion does not answer the vexing question of whether the nature and extent of [Mr. Cass’s] injuries disabled him from working for the year between October, 2017 and October, 2018. Nor does this conclusion answer the question of whether more treatment would be necessary or advisable to contribute to the rehabilitation of [Mr. Cass]. [ 28 ] The Commission assessed Mr. Cass’s appeal in the context of four segments of time.

Between the date of the MVA and his discharge from tertiary treatment (October of 2016 to May of 2017), it found Mr. Cass’s physicians, physiotherapists and his chiropractor had all diagnosed multiple injuries that were consistent with the reports from the tertiary assessment team. The Commission determined the tertiary assessment report to be the best evidence of Mr. Cass’s progress during that time frame by reasoning as follows: [46] … a team of experienced professionals had the opportunity to work with, and observe [Mr. Cass] for a four-week period. … The team concluded on May 1, 2017 [Mr.

Cass] had not fully recovered, but could do modified work. The Commission accepts the opinion of the tertiary assessment team that worked with [Mr. Cass] for an extended period of time. [ 29 ] In relation to the next time frame – from when Mr. Cass returned to work full time (April of 2017) until when he left his place of employment (September of 2017) – the Commission commented on how Mr. Cass had continued to see his physicians and physiotherapist.

However, owing to the brevity of their medical records, it found those reports to be largely unhelpful because they offered “no medical evidence directly commenting on work capacity, or that is of assistance in corroborating [Mr. Cass’s] limited evidence” (at para 47). The Commission did, however, note that they provided “some support for the need for further treatment”. [ 30 ] With respect to the period between October of 2017 and April of 2018, the Commission commented on the paucity of evidence, save for a report from Mr. Cass’s Ontario physiotherapist, which had recommended more treatment.

However, as the Commission went on to note, the Ontario Report did not comment on Mr. Cass’s capacity to work. [ 31 ] The Commission found no medical information concerning Mr. Cass’s physical status in the final segment – from April of 2018

until when he retuned to work in October of 2018. That said, while noting that Mr. Cass had worked long days in spite of his pain and acknowledging his continuing injuries, the Commission attributed his lack of ability to work to “motivational issues” (at para 49). [ 32 ] Examined as a whole, the Commission accepted as fact that Mr. Cass had suffered multiple injuries in the MVA and that he was not fully recovered when he returned to work in April of 2017. However, based on the absence of subjective and objective evidence to the contrary, together with what it perceived to be a lack of motivation on Mr.

Cass’s part, the Commission determined that, on a balance of probabilities, “SGI was correct in terminating income replacement benefits” (at para 51). [ 33 ] The Commission next turned to Mr. Cass’s application for the resumption of a rehabilitation benefit. In this regard, it concluded that, although SGI’s decision to terminate those benefits was reasonable at the time it was made based on the tertiary report, evidence filed subsequent to that decision (i.e., the Ontario Report) suggested that Mr. Cass would benefit from further treatment.

Based on this new evidence, the Commission varied SGI’s decision on the rehabilitation benefit and directed that Mr. Cass receive “a further 12” physiotherapy treatments (at para 53). [ 34 ] Mr. Cass appeals from the Commission Decision pursuant to s. 194(1) of the Act . IV. STATUTORY PROVISIONS [ 35 ] I find it useful to begin by setting out the provisions of the Act that bear directly on Mr. Cass’s appeal. [ 36 ]

Section 112 deals with an insured’s entitlement to a rehabilitation benefit: Rehabilitation 112

(1) In this section, “rehabilitation” includes any or all of the following measures, programs and treatments that the insurer considers necessary or advisable to contribute to the rehabilitation of an insured, to lessen the insured’s disability caused by the accident and to facilitate the insured’s recovery from the accident: (

a) physical and acquired brain injury programs and treatment; (

b) occupational and vocational training and programs; (

c) alterations to an insured’s residence; (

d) modification or purchase of a motor vehicle for an insured; (

e) purchase of special equipment for an insured; (

f) any additional prescribed measure, program or treatment.

(2) Subject to the regulations, the insurer may take any measure it considers necessary or advisable to contribute to the rehabilitation of an insured, to lessen a disability resulting from bodily injury and to facilitate the insured’s recovery from the accident.

(3) The total combined maximum benefits payable to an insured pursuant to this Division and Division 7 is $5,000,000 for each accident in which a person suffers bodily injury. [ 37 ] An IR benefit is governed by s. 113 of the Act : Income replacement benefit 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 … . [ 38 ]

Section 131 of the Act addresses the termination of benefits, with the following provision most directly relevant to the matter at hand: Termination of benefits 131

(1) Notwithstanding any other provision of this Part, an insured ceases to be entitled to a benefit pursuant to this Division when any of the following occurs: (

a) the insured is able to hold the last employment that the insured held before receiving a benefit; [ 39 ] The Personal Injury Benefits Regulations , RRS, c A-35 Reg 3 [ Regulations ] defines the phrase unable to hold employment as follows: Meaning of unable to hold employment 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 the insured 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. [ 40 ] Finally, relapse of a pre-existing injury within two years from the date when an insured last received benefits is addressed under s. 140 of the Act . That

section provides as follows: Relapse within two years 140

(1) This

section applies if an insured suffers a relapse of a bodily injury within two years after the later of: (

a) the end of the last period for which the insured received a benefit pursuant to this Division, other than a benefit pursuant to

section 126 or 135; and (

b) the date of the accident, if the insured was not entitled to a benefit pursuant to this Division before the relapse.

(2) An insured who is unable to hold an employment held by the insured at the date of the relapse is entitled to a benefit pursuant to this Division.

(3) The insured is entitled to a benefit pursuant to subsection (2) from the date of the relapse.

(4) The insurer shall calculate the benefit pursuant to subsection (2) on the basis of the greater of: (

a) the yearly employment income used by the insurer immediately before the end of the period mentioned in clause (1)(a); and (

b) the yearly employment income of the insured at the date of the relapse.

(5) Notwithstanding subsection (4), if an insured suffers a relapse on or after the 180th day following the accident and before the relapse had not been receiving an income replacement benefit pursuant to subsection 113(4), (5), (6), (7) or (8), the insured is entitled to the greater of: (

a) an income replacement benefit calculated on the basis of the yearly employment income of the insured at the date of the relapse; and (

b) an income replacement benefit calculated in the manner set out in: (i) subsection 113(5); or (ii) if the insured held a seasonal employment, subsection 113(6) or (7) as the circumstances require.

(6) If an insured receives an income replacement benefit at the date of relapse pursuant to clause (5)(a), the insurer shall adjust the insured’s income pursuant to subsection 113(4) on the 180th day after the date of relapse. V. ANALYSIS [ 41 ] Mr. Cass challenges the Commission Decision on two broad grounds. First, he asserts that SGI bore the onus of establishing that he could work and that he was not disabled from working in October of 2017 when he applied for the reinstatement of his benefits. Mr. Cass argues the Commission erred in concluding otherwise. Second, Mr.

Cass asserts there was evidence to support a finding that he was unable to work and that the Commission erred in overlooking this evidence. [ 42 ] I will deal with each ground of appeal in turn. A. The onus issue [ 43 ] The Commission briefly addressed the issue of onus at the outset of its decision. Based on this Court’s decision in Ballantyne v Saskatchewan Government Insurance , 2015 SKCA 38 , 457 Sask R 254 [ Ballantyne ], the Commission held that the onus of proof was borne by SGI. Even though the Commission appears on the face of its decision to have accepted Mr.

Cass’s position, i.e., that SGI had to prove that he could work and that he was not disabled from working in October of 2017, Mr. Cass argues that the Commission nevertheless erred by reversing the onus when it dealt with the evidence. [ 44 ] For its part, SGI contends the Commission erred in its

interpretation of the Ballantyne decision and that, in the circumstances of an application to reinstate benefits, as opposed to one where benefits are terminated, the burden of proof rests with the insured. In spite of the Commission’s alleged error, which it says ostensibly advantaged Mr. Cass, SGI suggests the Commission’s bottom-line result was not affected. 1. The law on onus [ 45 ] Ballantyne is frequently cited as authority for the proposition that the onus of establishing entitlement to

Part VIII benefits is, in first instance, borne by a claimant in that they “must establish he or she meets the pre-conditions necessary for entitlement to any benefit they claim” (at para 15).

However, once entitlement to a benefit is made out, and payments have begun, where SGI seeks to terminate those benefits, it “has the onus to prove on a balance of probability that the benefits are not payable under the Act ” ( Job v Saskatchewan Government Insurance , 2004 SKCA 164 at para 11 , 257 Sask R 85 [ Job ]) or that the insured “was no longer entitled to receive them” ( Lukian v Saskatchewan Government Insurance , 2015 SKCA 147 at para 22 , 472 Sask R 171 [ Lukian ]).

Those decisions involved situations where SGI had either denied benefits in the first instance ( Ballantyne ) or terminated an existing benefit ( Job and Lukian ). The matter at hand is substantially different. It concerns an appeal from SGI’s decision not to reinstate a benefit that had been previously terminated with no appeal taken by the insured from that decision.

[ 46 ] The parties referred the Court to Murphy v Saskatchewan Government Insurance , 2008 SKCA 57 , [2008] 7 WWR 401 [ Murphy ], which involved a similar fact pattern. Mr. Murphy, who was injured in a motor vehicle accident, received an IR benefit under the Act . When Mr. Murphy returned to work, SGI terminated that benefit. Mr. Murphy continued to work but was eventually forced to quit because of constant pain. Mr. Murphy did not appeal the termination decision. [ 47 ] Several years later, Mr. Murphy applied to reinstate his IR benefit, but his application was denied by SGI.

On appeal to the Court of Queen’s Bench, the hearing judge held that, where an insured resumes pre-accident work, but subsequently finds themself unable to continue with that work, their right to benefits under the Act is not terminated but merely suspended if they once again find themself meeting the entitlement criteria of s. 113(2) : Murphy v Saskatchewan Government Insurance , 2007 SKQB 238 , 297 Sask R 165 [ Murphy QB ] (reversed in

part in Murphy ). The Court of Queen’s Bench went on to hold in favour of Mr. Murphy, finding that he had suffered a relapse within the meaning of s. 141 of the Act . [ 48 ] One of the grounds advanced by SGI on appeal to this Court was that the Queen’s Bench judge had erred in law by reversing the onus of proof in the circumstance of a relapse. This Court framed SGI’s argument as follows ( Murphy ): [31] SGI took issue with what it considered to be a “reverse onus” imposed on it to establish that an insured is not entitled to IR benefits following a relapse.

It was particularly concerned that the hearing judge’s reasons could be interpreted as entitling an insured, who has withdrawn from his or her pre-accident employment without notice to SGI, to make a claim for retroactive IR Benefits based on alleged relapse for bodily injury, without supporting medical evidence, on the basis that he or she is entitled to IR Benefits until SGI can prove otherwise . (Emphasis added) [ 49 ] The Court in Murphy began with the general observation that the Act creates a no-fault insurance scheme permitting an insured who suffers bodily injury from a motor vehicle accident to claim compensation for those injuries.

Section 113, it noted, entitled an injured insured to an IR benefit, where the individual is unable to continue with the same employment they held at the time of the accident. Speaking for the Court, Klebuc C.J.S. (as he then was) found the wording of s. 131(1)(

a) and s. 131(1)(

e) particularly instructive as to the relationship between entitlement and employment, which, he reasoned, confirmed that an insured ceases to be entitled to a benefit under the Act when, on the evidence, the insured is able to hold the last employment they held prior to the accident. [ 50 ] Chief Justice Klebuc went on to examine the meaning of the word cease and of the relapse provisions (i.e., s. 140 and s. 141 ), which, he said, revealed a legislative intention to create a new entitlement, not to revive a suspended benefit.

If the legislation were interpreted to mean that the original IR benefit was merely suspended and not terminated, then, he observed, the relapse provisions would be effectively redundant. A suspension of a benefit, as the Court of Queen’s Bench had found in Murphy QB , would mean that an insured could automatically revive a previously terminated IR benefit at any future point in time when the insured once again found themself within the purview of s. 113 (at para 28).

To put it most succinctly, this Court said as follows ( Murphy ): [26] Subsections 140(1) and (2) provide that if an insured suffers a relapse within two years of the last period during which the insured received a benefit and is unable to hold the employment he or she held as at the date of the relapse, the insured is entitled to benefits. Subsection 140(3) states such entitlement runs from the date of the relapse.

Thus, it is a new entitlement and not a revival of a suspended entitlement as posited by the learned hearing judge . … [28] … Moreover, entitlement under s. 141 would be materially different than pursuant to s. 140 for no discernable reason in circumstances where the provisions serve a similar purpose. The legislature clearly intended s. 141(3) to have a meaningful purpose. That purpose is to require SGI to deal with an entitlement claim pursuant to s. 141 as a distinct claim based on a second accident rather than the revival of a suspended s. 113(2) entitlement.

Consequently, s. 141 gives rise to a new entitlement as does s. 140 . (Emphasis added) [ 51 ] In the result, Murphy rejected the Queen’s Bench judge’s conclusion that s. 131(1)(

a) and s. 131(1)(

e) operate in tandem to merely suspend an insured’s entitlement to benefits. Rather, as Klebuc C.J.S. emphasized, those provisions make clear that an insured ceases to be entitled to a benefit pursuant to that provision when “the insured is able to hold the last employment that the insured held before receiving a benefit ” (emphasis added, s. 131(1)(a)). If the requirements of s. 131(1)(

a) are satisfied, then, the Court said, “an insured’s entitlement to IR Benefits terminates” ( Murphy at para 29 ). [ 52 ] Given the result in Murphy , it was not necessary for the Court to go on to address SGI’s reverse onus argument. 2. Application [ 53 ] As noted in Murphy , there is a distinction between SGI’s decision to terminate benefits ( s. 131 ) and its refusal to reinstate benefits that had previously been terminated. In the case of the former, it is accepted law that the persuasive burden rests with the insured in first instance to establish entitlement under

Part VIII: see Ballantyne and Cop v Saskatchewan Government Insurance , 2019 SKCA 75 , [2019] 2 WWR 396. However, once entitlement is established and benefits are paid, if SGI seeks to terminate those benefits, the persuasive burden shifts to SGI to establish that the insured is no longer entitled to receive them or, put more directly in the case of an IR benefit, to prove that the insured “was substantially able to perform the essential duties of [their] employment” ( Lukian at para 22 ). [ 54 ] Placed in the context of the matter at hand, if Mr.

Cass had appealed the IR Benefit Decision Letter or the Rehabilitation Decision Letter, SGI would have borne the onus of proof. However, and most significantly, Mr. Cass did not appeal from either decision; accordingly, those decisions must stand. Therefore, at the time he applied for the reinstatement of his benefits, they were effectively terminated with no appeal taken from those decisions. This lay of the land meant that the issue before the Commission was not whether SGI had erred in terminating his benefits (as it said at paragraphs 51 and 52 of its decision) but whether SGI had erred in denying Mr.

Cass’s application to reinstate benefits that had been previously terminated. In addressing that question, the Commission had to come

to grips with which party bore the persuasive burden on a reinstatement application. [ 55 ] Another way to approach the onus issue is by examining the legislative framework. As I read the Act , s. 140 is the only plausible legislative footing for the reinstatement of an IR benefit. No-fault insurance and

Part VIII benefits are rooted in statute; and, therefore, it stands to reason that the reinstatement of a terminated statutory benefit has to be grounded in legislative authority. Benefits do not exist in thin air. The scope of SGI’s authority and obligations in this regard were most recently addressed in Saskatchewan Government Insurance v Schira , 2020 SKCA 88 , 450 DLR (4th) 673, which found as follows: [39] This, of course, does not mean SGI is entitled to act arbitrarily or to pay or not pay benefits as it sees fit.

Its actions are ultimately governed by the terms of the Act that prescribe no-fault benefit entitlements and, in administering that regime, it is constrained by the obligation of good faith and fair dealing common to all insurers. Further, s. 171 of the Act sets out what might be called a statutory version of the duty of good faith by stating “[SGI] shall advise and assist every claimant and shall endeavor to ensure that every claimant is informed of and receives the benefits to which the claimant is entitled”.

All of this means that SGI is required to deal with claims fairly, both with respect to the manner in which it investigates and assesses them, and with respect to its decisions as to whether or not to pay benefits. See: Fidler v Sun Life Insurance Company of Canada , 2006 SCC 30 at para 63 , [2006] 2 SCR 3; Denis Boivin, Insurance Law , 2d ed (Toronto: Irwin Law, 2015) at 384; Saskatchewan Government Insurance v Wilson , 2012 SKCA 106 at para 3 , [2013] 5 WWR 286. [ 56 ] There is nothing in the Act that pertains specifically to the reinstatement of benefits.

At the time of the Committee hearing, neither party was able to point to any legislative provision that allows for the reinstatement of a previously terminated (but un-appealed) benefit. [ 57 ] In my opinion, Mr. Cass’s application must be taken to have been grounded in s. 140 of the Act .

Section 140 applies to situations where an insured suffers a relapse of a bodily injury within two years from the end of the last period for which they had received a benefit under

Part VIII: Bodily Injury Benefits (No Fault): Division 4: Income Replacement Benefit: Relapse. Relapse is defined by s. 2(1)(oo.1) to mean “the recurrence of a medical condition directly related to an accident after an interval of improvement”. Section 140(2) goes on to provide that “an insured who is unable to hold an employment held by the insured at the date of relapse is entitled to a benefit pursuant to this Division”. [ 58 ] The following pre-conditions are embedded within s. 140: (

a) the insured suffers a relapse of a bodily injury; (

b) there is a causal connection between the relapse and the motor vehicle accident; (

c) the relapse occurred after an interval of improvement and within two years from the date when the insured last received an IR benefit; and (

d) the insured is unable to hold the employment that the insured held at the date of the relapse. Evidence satisfying these conditions is largely within the knowledge and control of the insured. The conditions incorporated within s. 140 point to a new entitlement that called on SGI to determine if Mr. Cass was entitled to benefits. [ 59 ] When Ballantyne , Murphy and s. 140 are read together, it stands to reason that a benefit pursuant to s. 140 of the Act is a new entitlement, and not the revival or reactivation of a suspended benefit.

Based on the wording of the Act , and the distinct categories of entitlement, it is reasonable to infer that the Legislature intended for the insured, not SGI, to bear the onus of proof in a reinstatement situation. Applying the rationale of Murphy , this is a new entitlement and, as such, Mr. Cass bore the onus of establishing that the criteria set out in s. 140 had been met. [ 60 ] Mr. Cass points to Ballantyne and Job as authority for the proposition that SGI bore the onus to prove that he could work in spite of his motor vehicle related injuries. With respect, Mr.

Cass’s situation is distinguishable from both of those decisions. As mentioned, Ballantyne was about the initial entitlement to benefits and Job pertained to SGI’s decision to terminate existing benefits. Neither involved an application to reinstate benefits that previously had been terminated. [ 61 ] All of that said, the Commission did not address Mr. Cass’s appeal within the context of s. 140 . Instead, it appeared to frame its analysis on whether he had brought himself within the ambit of s. 113 of the Act . However, this discrepancy was not material to the end result.

As noted above, the central issue was whether the injuries suffered by Mr. Cass were such that he was unable to hold employment, a finding of fact that had to be made regardless of whether the issue was considered under s. 113 or s. 140 . On the surface of things, at least, the Commission’s error was irrelevant and its finding (that Mr. Cass was not unable to hold employment) was unaffected by its approach. [ 62 ] The Commission also incorrectly framed Mr.

Cass’s appeal as a question of the termination of his benefits when it concluded as follows: “The Commission finds, on the balance of probabilities, SGI was correct in terminating income replacement benefits” (at para 51). This error was not fatal. [ 63 ] Regardless of the error, and frankly regardless of who bore the onus of proving Mr. Cass’s employment capability, the issue for the Commission came down to the evidence that was before it at the hearing. As I read its decision, the Commission made a positive determination: it found as fact that Mr.

Cass was able to work at the time he had applied for the reinstatement of his benefits. In this regard, it said, “the Commission also finds there is an absence of both subjective and objective evidence to confirm [Mr. Cass] was disabled from working in October, 2017. This conclusion is also reinforced by [Mr. Cass’s] conduct” (at para 51). This factual finding is important because, regardless of who bore the persuasive burden, the Commission had to determine the appeal on the basis of the evidentiary record before it.

Justice Leurer made a similar point in Cop : [53] I would conclude on this issue by observing that the existence of a persuasive (legal) burden of proof is seldom determinative in civil proceedings, where a court or tribunal is required to make determinations on the basis of a balance of probabilities. The burden simply means that “a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard”: Sidney N. Lederman, Alan W.

Bryant, Michelle K. Fuerst, & John Sopinka, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at 94. In civilproceedings, if there is evidence that allows the trier of fact to reach a determination, the burden does not come into play at all. This pointwas made by Spence J. in Arnold v Teno, (SCC), [1978] 2 SCR 287 at 298, adopting as authority the judgment of ViscountDunedin in Robins v National Trust Co., (UK JCPC), [1927] 2 DLR 97 (PC) at 100–101 [Robins].

I will expand slightlyon the quote from Robins adopted by Spence J: Onus is always on a person who asserts a proposition or fact which is not self-evident. To assert that a man who is alive was born requiresno proof. The onus is not on the person making the assertion because it is self-evident that he had been born. But to assert that he was bornon a certain date if the date is material, requires proof; the onus is on the person making the assertion.

Now, in conducting any inquiry, thedetermining tribunal, be it Judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on theside of the other, or, as it is often expressed, that in certain circumstances the onus shifts. But onus as a determining factor of the wholecase can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onuswill determine the matter.

But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus hasnothing to do with it, and need not be further considered. (Emphasis added in Cop) [64] Two further points can be drawn from this passage in Cop. First, even if SGI bore the burden of proof (which I find it did not inthe circumstances at hand), it only had to establish its case on a balance of probabilities not on a more demanding standard. In this regard,the Commission was satisfied that SGI had adduced sufficient evidence to make its case on a balance of probabilities.

Second, thequestion of onus in a civil case only becomes relevant in a practical sense where the evidence of the two sides is evenly balanced such thatthe decision maker can come to no sure conclusion. However, as discussed below, the preponderance of the evidence before theCommission favoured the position advanced by SGI. [65] In sum, the issue of who bore the onus of proof was not a determining factor in this matter. Although the Commission erred inholding that SGI bore the onus of proof, that error redounded to the benefit of Mr. Cass; and, in any event, it had no bearing on the finalresult.

There is no basis for appellate intervention. B. Evidence of Mr. Cass’s capability to work [66] In his second ground of appeal, Mr. Cass argues the Commission erred by ignoring relevant evidence and drew an irrationalinference of fact from the evidence that it did accept. In particular, he points to (

a) the physical demands of his job that the tertiary panelfailed to consider, (

b) the Commission’s overreliance on the tertiary report, given that it had been prepared several months before he hadapplied for the reinstatement of his benefits, and (

c) his testimony about on-going and disabling pain. Mr. Cass goes on to argue that theCommission’s decision is the product of flawed and inconsistent reasoning: on the one hand, it had allowed his appeal for furtherrehabilitation benefits, but, on the other hand, it had rejected the reinstatement of his IR benefit. He says the two decisions cannot co-existand reflect a self-evident error. [67] Before addressing Mr. Cass’s specific arguments, a couple of general observations are in order. An appeal under s. 194(1) ofthe Act is limited to a question of law.

As such, as stated in Howells v Saskatchewan Government Insurance, 2008 SKCA 163 at para 6,324 Sask R 36, and in the decisions that have followed it, this Court lacks the jurisdiction to hear an appeal on any ground other than aquestion of law. Therefore, the first hurdle Mr.

Cass must overcome is whether his ground of appeal raises a question of law. [68] Van de Sype v Saskatchewan Government Insurance, 2020 SKCA 18 [Van de Sype], is particularly apt to the jurisdictionalquestion because, like the present matter, it, too, involved the bottom-line question of whether the insured was able to perform theessential duties of his employment within the meaning of s. 14 of the Regulations. Speaking for the Court, Ottenbreit J.A. found this issueto be a question of fact or mixed fact and law.

He observed as follows: [107] … whether a person is unable to hold employment because he or she is substantially unable to perform the essential duties of theiremployment as contemplated by s. 14 of the Regulations is a factual determination, or at the very least, one of mixed fact and law that isweighted very heavily to the factual side. Each case is different.

Without setting out an exhaustive list, such a determination will varydepending on the person’s overall condition and health, the type of job and the physical and psychological demands that go with it, thephysical abilities of the person after having received rehabilitation treatment, and the residual pain if the person continues to suffer.

TheCommission’s determination of such an issue is, therefore, generally not appealable unless it can be shown that in coming to thatdetermination, legal errors were made (i.e., the determination was based on no evidence, it was made on the basis of irrelevant evidenceor in disregard of relevant evidence, or it was based on an irrational inference of fact). I am satisfied that the Commission did not commitany such legal errors in this case. (Emphasis added) [69] On the face of it, I find most of Mr.

Cass’s arguments simply invite this Court to re-examine and re-weigh the evidence in thehope we will come to a different conclusion. Section 194(1) of the Act does not permit us to do that. That said, as noted in the passagefrom Van de Sype above, a factual finding can give rise to an error of law where it “(

a) is based on no evidence; (

b) is made on the basis ofirrelevant evidence or in disregard of relevant evidence; or (

c) is based on an irrational inference of fact” (Murphy at para 5). [70] Placed in the context of Mr. Cass’s appeal, the question of whether he was unable to perform the essential duties of his job and,thus, unable to hold employment, is a question of fact or, at best, mixed fact and law. Since this Court’s jurisdiction is limited to questionsof law by s. 194(1) of the Act, this issue is not appealable unless Mr.

Cass can demonstrate that the Commission’s decision was based onno evidence, irrelevant evidence or in disregard of relevant evidence, or was based on an irrational inference of fact. [71] With those general comments in mind, I now turn to Mr. Cass’s arguments. [72] First, Mr. Cass argues that the tertiary panel failed to consider the physicality of his job.

[ 73 ] Having reviewed the record, I am satisfied that the tertiary panel considered the physical nature of Mr. Cass’s job and that it contacted and remained in contact with Mr. Cass’s employer as he worked through the FR program and the GRTW program. Evidence of this can be found in a report prepared by the FR program team following the initial tertiary assessment in early 2017. The baseline it used to assess Mr. Cass’s functional abilities was developed from Mr. Cass’s subjective report and a physical job demands analysis that was completed by his employer. The report went on to detail the results of the FR program team’s findings (repeated here for clarity): Functional

Summary Mr. Cass is currently functioning within a medium physical demands level with decreased endurance with respect to the left upper extremity. Mr. Cass is currently not meeting his job demands and requires work hardening in the form of a return to work plan. Return to work planning is dependent upon Dr. Mahmood’s consultation report, which was not available at the time of the assessment. If possible, a graduated return can commence in the form of modified hours and duties.

SGI has indicated a Vocational consultant will be added to the file to assist with this return to work plan prior to admission to tertiary treatment. [ 74 ] Ms. Scott testified that she was responsible for completing an assessment of Mr. Cass’s functional abilities at the beginning and end of his treatment programs and, more specifically, was responsible for ascertaining the demands of his job. In general terms, she testified about her duties in this regard: I set up and monitor functional conditioning programs where they gradually increase their functional abilities towards their job demands.

And then I assist in setting up referrals and restrictions for return to work programs. I follow up with clients during their return to work program either by phone or during follow-up visits here at the programs. When asked how she assessed Mr. Cass’s functional abilities in particular, Ms. Scott replied as follows: Q Okay. How did you assess Mr. Cass’s functional abilities? A I completed a functional abilities evaluation. The test items that I used were determined based on his areas of injury and his job demands.

Specific formal assessments were completed on admission of program on February 21st and 22nd and then again on discharge to his graduated return to work on March 14th of 2017, and then again on his discharge from graduated return to work on May 1st, 2017. I also informally evaluated his abilities approximately weekly during the duration of his functional conditioning program. Q Okay. Now, in that report it indicates that Mr. Cass wasn’t meeting some of his job demands but that there was no pathology that would limit his ability to meet those job demands. What does that mean?

A Even though he was not demonstrating the ability to meet some of his job demands during functional testing, based on his [MVA] rated diagnosis there were no permanent restrictions or impairments that would prevent him from returning to his pre-injury level of function. So it was determined by the treatment team that he was safe to … return to his pre-injury job duties. [ 75 ] As mentioned, the record also discloses contact between Ms. Scott and Mr. Cass’s employer.

An example of this contact is reflected in a hand-written report prepared on February 22, 2017, by an occupational therapist, following a conversation with Mr. Cass’s manager: Writer spoke on the phone with clients managers [ sic ], Gerald Murphy, on February 22. Mr. Murphy reported that the heaviest weight client would be required to lift/carry in is 55 lb bags of chemical. He indicated that items weighing 60 lbs or more would be required to be lifted by two people, or with mechanical assistance, as per company policy.

He indicated that he did not believe 88/90 lb bags of product were stacked at their facility. [ 76 ] Based on the record that was before the Commission, I am more than satisfied that the tertiary panel was aware of the physical demands of Mr. Cass’s job and that it had structured its programs around those work obligations. [ 77 ] Mr. Cass’s second and third arguments are most appropriately addressed together. He argues the Commission erred by placing too much weight on the tertiary report, when it had been prepared before he had applied for the reinstatement of benefits and that it was, therefore, stale-dated.

Secondarily, he asserts the Commission disregarded his testimony about on-going and disabling pain. [ 78 ] I see two difficulties with these arguments. First and foremost, they amount to an indirect attack on the weight the Commission assigned to the evidence.

The weighing of evidence is a question of fact, not law and, as observed above, is beyond the jurisdiction of this Court on a s. 194(1) appeal: “A challenge to the weight given to the evidence does not qualify as an error of law” ( Silzer v Saskatchewan Government Insurance , 2021 SKCA 59 at para 71 ) and “weight is a question of fact, not law, this ground of appeal is beyond the scope of appellate review” (at para 91). [ 79 ] Furthermore, it is beyond dispute that the Commission had an obligation to consider the evidence received and relied on by SGI when it made its decision: Van de Sype at para 116 and Allary v Saskatchewan Government Insurance , 2006 SKCA 89 at para 20 , 285 Sask R 202 [ Allary ].

The Commission had to determine whether the decision was in error, having regard to the evidence that was before it. [ 80 ] The second difficulty with Mr. Cass’s argument is that the Commission had evidence from Ms. Scott on this issue but had virtually no objective evidence from Mr. Cass regarding his alleged inability to work. As to the former, Ms. Scott had testified that, at the time Mr. Cass was discharged from the GRTW program without restriction, there was no pathology that would limit him from meeting the demands of his job.

When probed about her opinion, she said as follows (repeated here for reference): Q Okay. Now, in your opinion, when Mr. Cass was discharged from the graduated return-to-work, was he substantially able to do the essential duties of his employment?

A Yes. Although he was not meeting the frequency requirements for floor to waist lifting and bilateral front carry, he was meeting the weight requirement. He was also not meeting the frequency requirements for forward bending. It was expected that he could complete all of these tasks with pacing and that he would continue to progress to job demands with on-the-job work hardening. He self-limited during his waist to ground lifting due to reported pulling in his neck and left shoulder pain and his biomechanical maximum could not be determined because of that.

But based on his [MVA]-related diagnosis there was no permanent restrictions or impairments that would prevent him from returning to his pre-injury level of function. So it was determined by the treatment team that he was safe to return to his pre-injury job duties during his graduated return-to-work. By the end of the return-to-work he was working full hours and the team recommended that he progress to full duties . (Emphasis added) [ 81 ] Mr. Cass’s return to work and the tertiary panel’s report were the bases on which SGI had terminated his benefits. As mentioned, Mr. Cass did not appeal those decision.

When Mr. Cass applied for the reinstatement of his benefits, SGI asked Dr. Burkart to review the additional information Mr. Cass had provided and to opine as to whether it would change the opinion proffered by the tertiary treatment team “concerning [Mr. Cass’s] ability to return to his job, his regular activities of daily living, or the past time of bodybuilding”. The new information Dr.

Burkart was asked to review included the following: [C]opies of letters from two local Doctors (previously on file); a new client treatment plan from Leann Boehm of Southeast Physiotherapy clinic dated July 24th; and an MRI report of the cervical spine dated August 27, 2017. [Mr. Cass] also included information concerning traumatic injury/bone spurs which appears to be from the internet. I understand he returned to meet with the chiropractor this month as well, we have not been provided with this report. [ 82 ] Notes from Mr. Cass’s physicians said very little about being disabled from work. Dr.

Christie, for instance, said as follows in an August 1, 2017 letter: This gentleman injured his neck and shoulder ~ 6 months ago. Prior to this he had no medical history of any neck or back pain. Since then he has been seen several times for medical treatment. He continues to have pain. This is only since the accident and therefore the cause of the pain is due to the after effects of the accident. He has had many absences from work. Prior to the accident he never missed work. We are referring him to a specialist and hopefully he will have an MRI done in the near future. [ 83 ] Mr. Cass saw Dr.

Omosigho more frequently. Dr Omosigho also appears to have been part of the team that periodically reviewed and assessed Mr. Cass’s rehabilitation plan, and he appears to have signed off on all such plans over the months Mr. Cass was in the FR program and GRTW program. In January of 2017, Dr. Omosigho indicated that Mr. Cass was unfit for work and should not work for one month. He provided a similar note on July 28, 2017, excusing Mr. Cass from work for three days. No reason or explanation was provided.

The note reads as follows: Date: 28th July 2017 RE: Mathew [ sic ] Cass THIS IS TO CERTIFY THAT THE ABOVE PATIENT: ☒ Was seen in emergency today. ☒ Is unfit for work/school From 28th July 2017 to 31st July 2017 [ 84 ] Mr. Cass once again saw Dr. Omosigho in August of 2017. Dr. Omosigho’s letter to SGI provides as follows: This patient was involved in Road Traffic accident on October 24th 2016. He had no history of neck or back pain before the accident. However since the accident in October 2016 he has been seen several times for medical treatment for neck and back pain related concerns.

He is still having pain in the neck and back and is currently attending for physiotherapy. The pain is due to the accident he has [ sic ] and he has missed several hours of work he did not miss work before the accident . He has been referred to see the Orthopaedic Surgeon because of his neck and back pain concerns. If you require any further information please do not hesitate to contact me. Problem History: Anxiety Disord./Anxiety State [stress related problems], Pain – neck [Neck pain and back pain], Injury – shoulder & upper arm [Post Motor Bike accident] … Neck pain note to SGI about current medical situation.

Sincerely, Charles Omosigho, MD

[ 85 ] As mentioned, Dr. Mahmood is the orthopaedic surgeon Mr. Cass saw concerning his neck and back pain concerns. Dr. Mahmood’s outpatient report of July 19, 2017, stated as follows: Thanks for asking me to see the patient again, who is a 35-year-old right-handed [ sic ] man. He was involved in a motor vehicle accident previously on October 25, 2016.

He injured his left shoulder and neck, and the shoulder has been better but he mentions having some soreness on the lateral aspect of the left side of the neck and also some tingling that is involving his little and ring fingers, which he does feel into the medial aspect of the forearm and upper arm. He mentions he drops objects while carrying. Examination showed him having good range of movements involving his shoulder and no signs of impingement or weakness was noted. There has been no positivity for Tinel test for the ulnar nerve. As you have mentioned, you will be trying to do an MRI scan for his neck.

I believe it has been requested, and I have asked him to check either with your office or hospital if the request has been sent; otherwise, I can inform my office and we will send a note to have it done. With regard to his rash on his back, which he states has been there for about 7 months, I suggest that he is referred to one of the Dermatology for consult. With regard to the shoulder, he will continue with the exercises and at work can do his tasks within a level of his comfort and avoid any heavy lifting or carrying if not tolerated.

The follow-up MRI, which is set out in paragraph [20] above, revealed very minor, age-related degenerative change but no other obvious problems. [ 86 ] Of course, the Commission had the benefit of hearing Mr. Cass’s testimony concerning his physical limitations and the nature of his ongoing injuries. An example of this evidence is found in the following excerpt from the transcript: [Mr. Cass]: I don’t sleep properly. I wake up in pain because that’s why my neck is - like I wake up and I turn.

I cannot turn my head because my neck cracks instantly because I’m going to have arthritis in my neck when I’m older now because of this. My shoulder, I have a stabbing pain right through the top part here, but when they do ultrasounds they go on the back side like, so I can’t - when I was doing that and stuff I couldn’t - how do you look at not the spot that’s hurting, but just look at the spot that’s not hurting. And they go, well, nothing is wrong, but like I can’t lift my arm over my head for any extended period of time. I can’t - I’m left handed.

So writing after so long, like me sitting here for this long, I want to stand up right now and walk around and stretch. [ 87 ] The Commission reviewed and commented on the testimonial evidence of Mr. Cass, Ms. Scott, Mr. Vogt and Dr. Burkart. It discussed the documentary evidence that Mr. Cass had provided, noting, in particular, that his physiotherapy reports had corroborated the injuries he sustained in the MVA and his need for treatment. The Commission referred to the records from Dr. Mahmood (including the MRI), the physiotherapist who had advised Mr.

Cass not to lift more than 25 pounds, and the reports from Dr. Christie and Dr. Omosigho. In the end, though, the Commission Decision concluded that, while “none of these later reports provided significant detail that is relevant to determining [Mr. Cass’s] work capability in September, 2017”, they did provide “some indication of his need for further treatment” (at para 38). [ 88 ] As mentioned, the Commission assessed the evidence in segments of time. It took note of the various reports on file from Mr.

Cass’s doctors, physiotherapist and chiropractor that were generated in the early months following the MVA, which had all diagnosed multiple injuries. The Commission did not dismiss that evidence as being purely subjective, since it referenced both objective and subjective standards that had been employed by Mr. Cass’s health care providers. [ 89 ] However, the Commission found very limited medical evidence pertaining to the period from May 1, 2017, until when Mr. Cass left work in September of 2017. As to the reports that Mr.

Cass had filed (identified above), the Commission found them to be brief and very subjective. In fact, other than the Ontario Report, the Commission concluded that it had no other evaluative evidence of the remaining time frames. In the end, although the Commission found Mr. Cass’s body of information helpful in supporting his need for further treatment, it considered the evidence largely unhelpful in assessing the core issue: his capacity to work. [ 90 ] Mr. Cass is correct in stating that the Commission gave little weight to Dr. Burkart’s opinion.

However, that finding was not fatal to its determination because, as the Commission noted, it had the benefit of the tertiary report, which it found to be more probative and the best evidence of the core issue before it. As the Commission observed, a panel of experienced professionals had undertaken a standard medical assessment and had reviewed the subjective history, which was followed by examination and testing over a period of time. The Commission found this evidence sufficient to support SGI’s conclusion that, although Mr. Cass had not fully recovered in May of 2017, he could return to work.

It determined that nothing Mr. Cass had provided since then undermined the continued significance and relevance of the tertiary report. [ 91 ] Mr. Cass argues that the Commission ignored his testimonial evidence, as revealed by the following statement: “there is an absence of both subjective and objective evidence to confirm [Mr. Cass] was disabled from working in October, 2017” (at para 51). This observation does not constitute a reversible error. Earlier in its decision, the Commission had acknowledged Mr.

Cass’s testimony but found it insufficient to overcome the objective medical evidence that had been provided by a team of experts. When the decision is read as a whole, I am satisfied that the Commission did not ignore or misunderstand Mr. Cass’s evidence. It was open to the Commission to assign the weight considered appropriate to the evidence before it. That evidence included Mr. Cass’s testimony. The fact that the Commission preferred the tertiary report over Mr. Cass’s subjective opinion does not give rise to a factual, let alone legal, error. [ 92 ] Mr.

Cass’s argument about the Commission’s failure to consider his evidence must also be scrutinized in connection with the central issue that was before that tribunal. As the Commission noted throughout, the issue was not whether Mr. Cass continued to suffer pain and discomfort from the MVA, but whether he was substantially unable to maintain pre-accident employment because of his injuries. His evidence needed to address that discreet issue. The Commission concluded it had not.

Furthermore, as this Court observed in Van de Sype , the two concepts – residual pain and the inability to function in one’s job – are two different matters that “should not be conflated for purposes of s. 14 of the Regulations ” (at para 103): [103] Mr. Van de Sype also argues that the conclusion he is able to perform his job duties must be wrong, citing the medical evidence that he was still experiencing pain and could only work with pain in some cases. While it is true that he still had some residual pain and,

leaving aside the issue of whether that pain was related or extraneous to the accident, the presence of pain and the inability to function in one’s job duties should not be conflated for the purposes of s. 14 of the Regulations . The Act and s. 14 of the Regulations provide that IRB is payable if a person is entirely or substantially unable to perform the essential duties of the employment he or she held prior to the accident. They do not say that IRB is payable as long as the person continues to have pain from the accident.

That said, there may be cases where the pain is so severe or unmanageable as to render the person unable to perform those essential duties. [ 93 ] In his last argument, Mr. Cass submits the Commission’s decision to allow his appeal for increased physiotherapy benefits, yet reject the reinstatement of the IR benefit, was flawed and displayed inconsistent reasoning. As such, he says, the two contradictory decisions reveal an obvious error. As Mr.

Cass did not develop this argument in any meaningful way, it is difficult to ascertain how allowing part of his appeal, but denying the other, led to any error on the part of the Commission. At best, I take him to argue that the Commission took a favourable view of the evidence in relation to his need for a rehabilitation benefit but erred by applying a more stringent level of scrutiny to the evidence when it came to its treatment of the IR benefit. [ 94 ] Mr. Cass’s argument must be rejected. The Commission accepted as fact that Mr.

Cass was not fully recovered when he returned to work and accepted the evidence of his Ontario physiotherapist. Even though Mr. Vogt had been initially of the view that further treatment was not required, when cross-examined about the Ontario Report (which had recommended 20 visits to reduce Mr. Cass’s symptoms and improve his range of motion), he agreed that physiotherapy was a reasonable form of treatment. He also agreed that the shoulder impingement (rubbing or pressure) Mr. Cass complained of – which was not detected during tertiary treatment – could have occurred after Mr.

Cass had returned to work. [ 95 ] In short, the Commission had the benefit of medical evidence from the Ontario Report, along with Mr. Cass’s testimony about ongoing pain. This evidence allowed it to reach the decision it did concerning a rehabilitation benefit. [ 96 ] Further, unlike entitlement to an IR benefit, a rehabilitation benefit covered by s. 112 of the Act does not hinge on whether an insured is unable to continue with their employment.

The insurer, rather, is vested with considerable discretion to “take any measure it considers necessary or advisable to contribute to the rehabilitation of an insured” ( s. 112(2) ). The Regulations elaborate somewhat on how this discretion is to be exercised. Section 12(2) of the Regulations provides that a treatment is advisable if there is objective clinical evidence that the treatment is required to lessen the insured’s disability or facilitate recovery.

Treatment for those purposes is recognized where “the insured has not reached a maximum level of recovery” and “treatments are required to improve the insured’s ability to function either physically or mentally” (s. 12(3)(a)). [ 97 ] In light of the statutory scheme, the broad discretion conferred on SGI under s. 112 of the Act , and the evidence before it, I see no error with how the Commission dealt with this issue nor do I see any inconsistency in how it treated the evidence. VI. CONCLUSION [ 98 ] Mr. Cass’s appeal is dismissed.

Since SGI has declined to seek costs, no such order will be made. “Schwann J.A.” Schwann J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.