Neutral Citation: 2003 ONFSCDRS 125

FSCO A03-000056

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

STALIN THIRUCHELVAN

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

Lawrence Blackman

Heard:

June 27, 2003, at the offices of the Financial Services Commission of Ontario in Toronto, and June 30 by telephone conference.

Appearances:

David S. Wilson for Mr. Thiruchelvan

Pamela A. Brownlee for AXA Insurance (Canada)

Issues:

The Applicant, Mr. Stalin Thiruchelvan, was involved in motor vehicle accidents on March 16th and 23rd, 2002. He applied for statutory accident benefits from AXA Insurance (Canada) ("AXA"), payable under the Schedule.¹ AXA paid Mr. Thiruchelvan income replacement benefits ("IRBs") until August 23, 2002, as well as weekly housekeeping expenses.

Mr. Thiruchelvan seeks ongoing weekly IRBs of $400 and weekly housekeeping benefits of $50. AXA seeks repayment of IRBs in the amount of $1,621.84. As the parties were unable to resolve their disputes through mediation, Mr. Thiruchelvan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Pursuant to section 65 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) (the "Code”), the Applicant brings a motion for a determination of the following questions:

Is Mr. Thiruchelvan entitled to interim weekly income replacement benefits of $400 and housekeeping benefits of $50 ongoing from August 24, 2002?
Is either party entitled to their expenses of this motion?

Result:

AXA shall pay Mr. Thiruchelvan interim weekly benefits of $400 in respect of the seventeen-week period from August 24 to December 20, 2002.
Mr. Thiruchelvan is not entitled to an order for interim housekeeping benefits.
The issue of the legal expenses of this motion may now be addressed.

EVIDENCE AND ANALYSIS:

Subsection 279(4.1) of the Insurance Act allows an arbitrator to make an interim order pending the final order in any matter before the arbitrator.

There is significant arbitral agreement on the following principles regarding interim benefits, as enunciated by Arbitrator Manji in Ioannidis and Canadian General Insurance Group (OIC A97-001551, December 15, 1997):

Generally an insured person's entitlement to benefits is to be determined after a full hearing of all of the evidence.²
Novel or difficult questions of law should be dealt with in a full hearing and not within an interlocutory proceeding.³
Interim benefits are not to be awarded on a routine basis, but only in certain unusual circumstances.⁴
An interim order, by its very nature, is intended to cover a short period of time between the making of the order and the final order.⁵
An application for an interim order must be heard in a summary fashion and the order made expeditiously. At the arbitration hearing, after a full hearing of all of the evidence, the arbitrator may well come to the conclusion that a substantially different order should be made.⁶
An interim order is subject to the final order and an arbitrator may order interim benefits be repaid.⁷
Subsection 279(4.1) of the Act does not change the onus of proof. The onus of proof remains the insured person's.⁸

However, Commission case law is divided as to the threshold which must be met before interim benefits may be awarded.

The Applicant urged me to follow the criteria followed by, amongst others, Arbitrator Wilson in Singh and Coseco Insurance Co./HB Group/Direct Protect (FSCO A01-000245, February 14, 2002), namely whether there is credible prima facie evidence supporting continued disability and some measure of urgency (the latter, however, not requiring the applicant to be in extremis).

There are, however, different understandings as to what is meant by the term prima facie, as stated by Arbitrator Makepeace in Nelson and Liberty Mutual Insurance Company (FSCO A00-000253, February 16, 2001) at page 22:

I agree with Arbitrator Rotter's view that the term "prima facie" is ambiguous.⁹Arbitrator Manji interpreted it to mean that the insured person must present "evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement." [italics added] I prefer a stricter interpretation that is closer to the ordinary meaning of prima facie: "on its face' or "at first blush."

The Insurer urged me to adopt the criteria adopted by Senior Arbitrator Rotter in Cripps,¹⁰namely:

. . . that, in the context of a motion for interim benefits, the standard of proof should be somewhat higher than at a hearing, in view of the fact that the evidentiary basis for the order is generally less than complete. On all the material presented, the arbitrator should find it not only reasonable, but also very probable, that an applicant will be found to be entitled to the benefits sought.

As a motion for interim benefits is heard summarily, without the benefit of full submissions on the full oral and written evidence, an interim order may ultimately be overturned and benefits ordered repaid. With perhaps the threshold requirement of financial need in mind, Arbitrator Rotter stated in Cripps:

. . . in a significant number of cases, interim benefits awarded will not be able to be recovered from an applicant, should the benefit be found not to be payable after a full hearing.

Arbitrator Palmer addressed this concern in Ms. Z and Dominion of Canada General Insurance Company (FSCO A98-000124, September 25, 1998) (included in the Insurer's filed case brief) where the Applicant's exigible assets (and hence security for potential repayment) of more than $100,000 was a factor in her ordering interim benefits. As I indicated to counsel during submissions, I was the hearing arbitrator in that case (FSCO A98-000124, March 7, 2000) and ultimately, with the benefit of significantly more fulsome oral and written evidence and submissions, found Ms. Z not entitled to IRBs for the interim period previously ordered. On appeal (FSCO P00-00023, February 23, 2003) the Director's Delegate allowed the Insurer's subsequent request that Ms. Z repay interim benefits of $17,371.20 for the period September 25, 1998 to July 22, 1999.

In Ms. Z, Arbitrator Palmer had followed the prima facie test, "that is, at first glance, [whether the applicant was] entitled to ongoing weekly income benefits as a result of the accident." This was largely based on a paper review of the then available expert medical reports.

The Supreme Court of Canada, in R. v. Mohan 1994 CanLII 79 (SCC), [1994] 2 S.C.R. 7, expressed concerns about the possible dangers related to allowing into evidence expert evidence, specifically that:

. . . experts [should] not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.

That is exactly what has occurred in this motion, with counsel urging me to accept one expert report over another.

The Applicant filed a medical brief with a number of reports. He particularly, however, relies on reports by Mr. A. Balaban, D.Sc., M.Sc.

Regarding the Applicant's other medical documentation, neither the March 24, 2002 emergency record of Trillium Health Centre nor the reports of Dr. M.M.S. Lee, rheumatologist, dated October 22 and November 5, 2002, address the question of disability. The Applicant's family doctor, Dr. H.K. Nguyen, confirms disability in his March 25, 2002 certificate, but that is some five months before benefits were terminated. Dr. Nguyen's November 26, 2002 report does not comment on disability.

Canada Rehabilitative Consultants' report dated May 29, 2002 provides a job site assessment (at the referral of the Insurer, in consultation with the Applicant's employer) some three months before benefits were terminated. Of note is the physical demand of lifting frequently up to 20 pounds and occasionally up to 50 pounds. An April 17, 2003 report by University of Toronto Professor of Medicine, Dr. B.W. Gilbert, addresses the relationship, if any, of heart rate to pain, without addressing the Applicant's alleged disability.

Dr. Lee's last report is dated May 15, 2003. He opines that the Applicant is unable to return to his pre-accident position, which he says involved, amongst other duties, occasionally carrying over 50 pounds. It is unclear from this report when Dr. Lee last physically examined the Applicant (the last date noted in the report is November 4, 2002), the extent to which this report is simply a paper review, the extent to which the opinion provided is based on purely subjective complaints, and the extent to which the doctor is relying on information which may not be supported by the evidence (such as the job duty of having to carry over 50 pounds).

Dr. Lee's earlier April 2, 2003 disability statement to Canada Life states that Mr. Thiruchelvan is unable to return to his pre-accident employment due to ongoing severe fibromyalgia, its subjective symptoms including generalized body pain, fatigue, non-restorative sleep and stiffness. Monthly visits up to the date of the report are noted, but no indication is given as to when a physical examination or functional assessment was last done. Enumerated physical capabilities include sitting, standing and walking for up to ten minutes, and lifting or carrying five to ten pounds. It is unclear whether these findings are simply based upon the verbal advice of the Applicant or someone else. One questions why Mr. Thiruchelvan's stated abilities are so markedly lower than assessments performed in June 2002 by the Insurer's assessors and in October 2002 by Mr. Balaban, set out below.

Included in the Insurer's brief is a report from Dr. M.G. Virey, psychiatrist, dated June 9, 2003, based on a referral from the Applicant's family doctor, Dr. Nguyen. Dr. Virey's understanding of the details of the Applicant's pre-accident employment is unclear. He does, however, provide an extensive diagnosis. One is not, however, entitled to benefits solely on the basis of a diagnosis. It is unclear upon what basis Dr. Virey concludes that the Applicant is "substantially impaired and totally disabled from attending for his employment" other than Mr. Thiruchelvan's subjective complaints.

The Applicant relies especially on an October 22, 2002 report by Canada's Accident Rehab Group, conducted that same day. The report consists of two parts. A very brief musculoskeletal assessment by Dr. M. Shedletzky, D.C., addresses treatment rather than the weekly disability entitlement test. Of note, however, is his recommendation for an active work hardening component of physiotherapy care.

The report from Canada's Accident Rehab Group also includes a functional capacity evaluation report signed by Mr. Balaban, who refers to himself as an exercise physiologist. His curriculum vitae, however, raises significant questions as to his expertise to personally conduct functional assessments. The 21-page report concludes that the Applicant cannot perform the essential job requirements of his pre-accident employment, based on detailed complaints of pain consistent with noted muscle imbalances, muscle weakness, fatigue and changes in body mechanics.

Of concern, however, is that the report is written such that it is unclear who actually conducted the assessment. I note, contrary to Dr. Lee's April 2003 statement, that Mr. Thiruchelvan is noted as being able to do 12 and 15 pound lifts, albeit with pain and changes in body mechanics. Standing tolerance is noted at about 20 minutes, sitting tolerance at some 45 minutes.

The Insurer's medical brief includes the reports by H. Sharma O.T., dated April 8 and May 13, 2002, respectively four months and three months prior to termination of benefits, and hence, of little assistance regarding the question of ongoing disability. The Insurer primarily relies on insurer medical examination ("IME") reports of AssessMed dated June 28, 2002 and May 8, 2003, signed by Dr. R.J. Zabieliauskas, a doctor of Physical Medicine and Rehabilitation, which arise from a June 28, 2002 assessment.

These IMEs, when added to the other evidence before me, tip the balance that not merely on a prima facie basis, but also on a very probable basis, the Applicant is entitled to weekly IRBs for a period beyond the present date of termination.

I am persuaded that Mr. Thiruchelvan's pre-accident employment was that of a full-time scheduler and planner, working forty hours a week. I am persuaded that the essential tasks of that employment included, amongst other things, frequent standing, walking, bending at the waist as well as, based on the Insurer's own job site assessment, frequent lifting up to 20 pounds, and on occasion up to 50 pounds.

I accept AssessMed's evidence that Mr. Thiruchelvan's exertion on functional testing regarding floor to knuckle lifting was, using their terminology, "more than strong," that his effort regarding lifting and carrying was "more than very strong," and that his effort regarding knuckle to chest lifting was "almost very, very strong." I accept their opinion that overall, his testing was "suggestive of consistent performance on functional tests." I accept their finding that regarding grip strength testing with the JAMAR dynamometer that "there was minimal correlation with voluntary inhibition during this portion of the assessment," which I take is another way of saying that Mr. Thiruchelvan was not faking impairment.

Notwithstanding the above, AssessMed relied on heart rate analysis to conclude that full effort had not been given by Mr. Thiruchelvan and hence that he was most likely capable of lifting at a medium level (defined as up to 20 pounds frequently and up to 50 pounds infrequently). Testing showed that the Applicant's lowest heart rate obtained during the intake interview was 101 beats per minute. After climbing three flights of stairs, his heart beat was 98 beats per minute. As suggested by the Applicant's counsel, this does not make sense. In any event, Dr. Gilbert's April 17, 2003 report raises concerns as to whether AssessMed has appropriately set out the limitations of relying on changes in heart beat to assess effort, and implicitly, in assessing pain.

This leads to a fundamental concern regarding the AssessMed reports. In determining IRB entitlement, arbitrators look at function. In significant measure, especially in cases involving soft-tissue injury, the key questions are whether the applicant is in pain, how much pain is the applicant in, and how much pain is too much pain. AssessMed sets out in its report a statement of its philosophy, which includes:

that a safe and timely return to work will benefit injured or ill individuals and their families by enhancing recovery and reducing disability.

This may be a laudable statement were it not that AssessMed appears to consider pain to be largely irrelevant. The May 8, 2003 report states that Mr. Thiruchelvan "self-limited himself in the amount of lifting that he did . . . for reasons only known to Mr. Thiruchelvan." I do not accept the implication that the Applicant was somehow disingenuous as to his reasons for not lifting heavier amounts. Mr. Balaban's October 22, 2002 report extensively records complaints of pain and changes in body mechanics during functional testing. In any event, the AssessMed reports do not indicate that the Applicant was asked to lift heavier amounts and refused.

A functional assessment opinion which ignores pain runs contrary to arbitral case law. As stated by Arbitrator Makepeace in Quattrocchf and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997), it is not sufficient to dismiss a chronic pain claim on the basis that returning to work would not harm the applicant. Where there is no objective evidence of impairment or the objective evidence does not explain the degree of pain reported by the insured person, that person's credibility becomes important, and his or her subjective pain complaints must be considered in all of the circumstances, including the consistency of the person's complaints and the apparent functional level.

I am persuaded that rather than being objective, AssessMed has taken on the role of advocate. The follow-up report of May 8, 2003 endeavours to bolster the prior report by reference to the limited amount of monetary property damage of the second accident (but omitting reference to the monetary damage of $6,000 to $6,500 in the first accident, sworn to by the Applicant) and the alleged post-accident activity of the Applicant going to a restaurant, which are a questionable foundation for what is presented as a scientific, neutral, technologically advanced medical analysis. Further, the follow-up report concludes that Mr. Thiruchelvan "has no objective physical impairments or disabilities that would prevent him from being able to safely resume all of his previous employment activities." As also set out in Quattrocchf, and now long established, one can be entitled to benefits notwithstanding the absence of objectively confirmed impairments.

On the material before me, I am persuaded that AssessMed's extrapolation to a finding that the Applicant was capable of at least medium strength tasks is based on a false finding of lack of full effort based on heart rate testing.

Given:

that the lifting component of Mr. Thiruchelvan's pre-accident employment is much greater than was assessed by AssessMed;
that AssessMed found Mr. Thiruchelvan's efforts at significantly less heavy amounts at least "more than strong;"
that I find the AssessMed reports, prima facie, to be advocating a medical opinion based on criteria inconsistent with arbitral case law;
that Mr. Balaban's October 2002 report notes in great detail observations of pain and fatigue consistent with changes in body mechanics; and,
that Employment Insurance accepted Mr. Thiruchelvan's disability claim for the maximum fifteen-week period effective October 27, 2002,

I am persuaded that it is very probable that the Applicant will meet his onus of establishing entitlement to IRBs period beyond the present termination date of August 24, 2002. That this is to a very significant extent based upon the report which the Insurer relied in terminating benefits, makes this a somewhat unusual and compelling situation.

The sworn affidavit of the Applicant indicates that in the last full year of his employment he earned approximately $63,000. The evidence before me indicates that the only income now being received by the family is the net weekly amount of $410 being earned by the Applicant's wife. I am persuaded, on a balance of probabilities, that financial urgency has been established. Nonetheless, I have significant questions as to how, and why, the Applicant and his wife are paying $350 a week, as submitted, for someone to take care of their thirteen and seven-year old children and to provide housekeeping services.

The next question is for what period should interim IRBs be allowed. The Applicant urged me to order benefits ongoing from the date of termination to any further or other order of an arbitrator. The pre-hearing letter notes that the Applicant's counsel's earliest "real" date for an arbitration hearing was April 2004; dates in December 2003 were, however, set, contingent on the availability of Applicant's counsel.

The Commission's published guidelines state that dates for arbitration hearing will be available within four to six months of the conclusion of the pre-hearing discussion. I take note that the Commission presently has (and had at the time the arbitration dates herein were set at the April 23, 2003 pre-hearing) hearing dates available a few weeks hence. I also note that an interim order, by its very nature, is intended to cover a short period of time. Accordingly, I find it appropriate to order interim weekly IRB benefits for seventeen weeks, to cover the period August 24, 2002 to December 20, 2002, seventeen weeks being at the lower end of the published guideline of available hearing dates.

Although the Insured's motion record includes May 2, 2003 correspondence from the Insurer indicating that they are of the view that the correct weekly IRB is $326.28 and although it is noted in the pre-hearing letter that the Insurer is seeking repayment of $1,621.84, both counsel agreed at the start of the hearing that for the purposes of this motion, $400 is the correct weekly IRB. Accordingly, the order shall be in this amount.

Regarding the Applicant's claim for housekeeping benefits, on the limited evidence before me for the period in question, I am not persuaded that a prima facie case, let alone a very probable case, for entitlement has been established.

EXPENSES:

The question of expenses was deferred until all other issues in this motion were decided. Accordingly, the issue of the expenses of this motion may now be addressed.

August 26, 2003

Lawrence Blackman Arbitrator

Date