Neutral Citation: 2003 ONFSCDRS 150 FSCO A02-001401

BETWEEN:

BACHITTAR SINGH Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

Before: William J. Renahan

Heard: August 12, 13 and 14, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Michael J. Gillen, Barrister and Solicitor, for Mr. Singh Ian D. Kirby, Barrister and Solicitor, for Wawanesa Mutual Insurance Company

The Applicant, Bachittar Singh, was injured in a motor vehicle accident on May 10, 2001. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on December 1, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Singh entitled to income replacement benefits from December 1, 2001 to September 19, 2002?

Is Mr. Singh entitled to interest pursuant to section 46 of the Schedule, for the period May 17, 2001 to November 15, 2001, the date Wawanesa paid income replacement benefits in arrears?
Is Mr. Singh entitled to a special award pursuant to section 282(10) of the Schedule?
Is either party entitled to expenses pursuant to section 282(11) of the Schedule?

Mr. Singh is not entitled to income replacement benefits after December 1, 2001, except for benefits in the amount of $114.28 to compensate him for notice of termination which was four days deficient.
Mr. Singh is entitled to interest of two per cent per month compounded monthly on income replacement benefits owing to him on and after July 13, 2001 to November 15, 2001.
Mr. Singh is not entitled to a special award.
The issues of entitlement to and amount of expenses is deferred.

Background:

Mr. Singh is 35 years old. His spoken English is limited and he testified through a Punjabi interpreter. At the time of the accident he worked at the Toronto International Airport as a Hi-lift truck driver for Cara Operations ("Cara"), an airline food catering company.

The accident occurred on his way to work as he turned from Derry Road to Dixie Road. He stopped suddenly and the car behind hit him with sufficient force to push him into the vehicle ahead.

He claimed that he sustained soft tissue injuries to his neck and back and a torn anterior cruciate ligament which disabled him from returning to work until September 20, 2002.

Dr. S.S. Sira, a general practitioner, treated Mr. Singh and referred him to treatment for his neck and back. He signed disability certificates on the basis that Mr. Singh was disabled from returning to work because of injuries to his neck and back. Wawanesa arranged for a Functional Abilities Evaluation ("FAE") by a kinesiologist and an examination by Dr. John Zeldin, an orthopaedic surgeon, who expressed opinions that Mr. Singh was not disabled from returning to work. Wawanesa terminated income replacement benefits on the basis of those opinions, effective December 1, 2001.

On December 12, 2001, Dr. Sira referred Mr. Singh to Dr. Donald McGonigal, an orthopaedic surgeon, who diagnosed a complete disruption of the anterior cruciate ligament ("ACL").²

In his report, Dr. McGonigal recommended conservative treatment, particularly muscular strengthening since Mr. Singh was only reporting pain, without instability.

Dr. Sira next referred Mr. Singh to Dr. Charles Bull, another orthopaedic surgeon. Dr. Bull reported and testified at the hearing. He first saw Mr. Singh on May 17, 2002. On the basis of an MRI and physical tests, he too diagnosed a significant ACL tear. He testified that the problem was difficult to figure out because Mr. Singh complained of pain beneath the patella and throughout the knee which was not symptomatic of an ACL tear. He referred Mr. Singh to Dr. Rick Zarnett for a third orthopaedic opinion. Dr. Zarnett also diagnosed a torn ACL. Again, because Mr. Singh was not complaining of instability, and because his complaints of pain were not related to an ACL injury and therefore would not resolve with surgery, Dr. Zarnett would not recommend surgery.

Mr. Singh returned to work on September 20, 2002.

The law:

Under section 4 of the Schedule, Mr. Singh is entitled to income replacement benefits for the period he is unable to perform the essential tasks of his employment due to an impairment caused by the motor vehicle accident.

Essential tasks of employment:

The kitchen galley of a commercial airplane is stocked with containers and trolleys which fit into compartments in the galley. The containers contain food, beverages and utensils. After the food is prepared and served, the flight attendants collect and put the leftovers back into the containers.

Mr. Singh's job was to remove the used trolleys and containers from the galley and replace them with fresh trolleys and containers.

Mr. Singh received lists which showed the flights and the containers which were scheduled to go on each flight. He used a truck with a platform which he could elevate to the airplane galley door. He drove the truck to the Cara loading dock and loaded the truck platform with the required containers and trolleys and drove along designated corridors to the airplane. He climbed five or six steps to the platform and raised it to the level of the galley door. He unloaded the used containers and trolleys from the airplane and replaced them with the fresh containers and trolleys. He lowered the platform and returned to the loading dock. He serviced about seven flights per shift and took breaks in between. On bigger flights, another worker helped him load and unload. The main physical demands of the job include standing, neck flexion, forward reaching, lifting, pushing/pulling and grasping.

Disability based on neck and back pain:

Mr. Singh received the notice of termination of income replacement benefits in November 2001. He testified that when he received the notice of termination, the pain in his neck and back had improved but severe pain in his right knee prevented him from returning to work. In June 2002, Dr. Zarnett reported that Mr. Singh's back had "settled down." I heard very little reliable evidence that neck and back pain was a disabling factor after Wawanesa terminated income replacement benefits and find that Mr. Singh is not entitled to income replacement benefits after December 1, 2001 on account of disabiltiy due to neck and back pain.

Disability based on knee pain or instability:

Although Dr. Bull reported on one occasion that Mr. Singh said that his knee gave out and he fell, and Dr. Zarnett reported some instability, all three of Mr. Singh's orthopaedic surgeons, Dr. McGonigal, Dr. Bull and Dr. Zarnett concluded that instability was not Mr. Singh's main problem. Pain in the knee was his main problem and surgery to repair the ACL would not resolve the pain. The assessor at the FAE noted that Mr. Singh complained of pain in the knee and did not report any symptoms of the knee giving way or locking up.

As well, Mr. Singh's claim that he was disabled due to instability in the knee is incompatible with the fact that he returned to work without an ACL repair. Dr. Bull testified that the ACL will not repair itself and that Mr. Singh can continue working until normal retirement age without an operation. He also testified that although he gave Mr. Singh exercises to do to strengthen the leg, he did not know whether he did the exercises.

Mr. Singh received treatment in the weeks following the accident at Motivated Rehab. The Motivated Rehab Treatment Plans do not refer to treatment for Mr. Singh's knee. Mr. Singh testified that his treatment included exercises for his knee. I do not accept that Mr. Singh did exercises at Motivated Rehab for a condition before he complained about it and before it was diagnosed.

I heard no reliable evidence that Mr. Singh exercised to strengthen the leg so that he could return to work. I find that Mr. Singh was not disabled due to knee instability at any time after the motor vehicle accident.

Disability due to knee pain:

Mr. Singh's testimony about problems with his knee was brief. He testified that he could not return to work because of "lots of problems" with his leg, that he had severe pain in the right knee, that he had severe pain when he walked or climbed stairs and that he received treatment for his knee at Motivated Rehab in the weeks following the accident. I found Mr. Singh's testimony on his problems with knee pain was meagre and lacking in the detail I would expect from someone who claims to be disabled by pain. As well, his testimony of treatment for his knee at Motivated Rehab is not supported by the Treatment Plans submitted by Motivated Rehab. The two Treatment Plans only describe Mr. Singh's impairment or disability as neck, shoulder and lumbar strain. Mr. Singh's testimony, by itself, was not persuasive.

I looked at the records and testimony of others to assess Mr. Singh's claim that he was disabled by pain in his right knee.

Although Mr. Singh testified that he told the hospital workers that he hurt his knee, the hospital emergency records made the day of the accident refer only to complaints of neck and thoracic pain. Later, Mr. Singh testified that the staff asked him simple questions and he said his neck and back. As he gave this testimony, he pointed to his neck and back. I expect that if he had knee pain at the hospital, he would have pointed to his knee. I do not accept that Mr. Singh could not express his complaints without an interpreter at the hospital and I find it likely that if Mr. Singh had complained about his knee, the complaint would have appeared in the hospital records.

I would expect a family doctor's notes to be an accurate record of a patient's complaints. Regulations under the Medicine Act, 1991³ require a doctor to make records for each patient which contain, among other things, the date of each professional encounter and a record of the assessment and history obtained by the doctor. The College of Physicians & Surgeons has published a "Guide to Current Medical Record Keeping Practices"⁴ which advises doctors to "record entries as closely as possible to the time of the examination when the details of the patient encounter are fresh in your mind" and, when making corrections, to clearly indicate the correction and to date and initial the correction. I had difficulty accepting Dr. Sira's notes as reliable because I received evidence of three versions and because of Dr. Sira's explanations for the different versions. As well, Dr. Sira's reports contained further observations which were not in his notes.

The different versions of Dr. Sira's notes demonstrated different degrees of knee complaints. Dr. Zeldin referred to one version of Dr. Sira's notes when Wawanesa asked him to look at Mr. Singh for a second time to assess Mr. Singh's new complaint that he had a knee injury. Dr. Zeldin noted that Dr. Sira recorded the injury to the knee on the first visit and did not mention the knee again until the visit of October 18, 2001. Wawanesa received a second version of Dr. Sira's notes from Mr. Singh's group insurer. Those notes record additional knee complaints on May 31 and July 19, 2001. Mr. Singh introduced a third version of Dr. Sira's notes. Those notes record further knee complaints on June 7, 14, 28 and July 5, 2001.

Dr. Sira explained the different versions. He testified that he constantly edits his notes and that the notes in evidence were not made contemporaneously with the examinations. He explained that he operates two days a week in an office on Derry Road and two days a week in an office on St. Clair Avenue and that Mr. Singh probably visited him at both offices. He explained that he made notes on separate pieces of paper at his St. Clair Avenue office which he used to complete the chart in his Derry Road office and then he threw out the original notes. He could not say when he updated the notes.

This does not explain why he had three versions of his chart because it does not explain why some entries for specific days in one chart do not include a knee complaint while another entry for the same day in another chart does include a knee complaint. Further, I do not accept that Mr. Singh visited Dr. Sira in his St. Clair Avenue office. Mr. Singh testified that he went to Dr. Sira at the Derry Road office because it was across the road from where he lived. The 22 visits by Mr. Singh in 2001 were either on a Monday or Thursday. Dr. Sira testified that he worked two days a week at the Derry Road office and two days a week at the St. Clair Avenue office. I find it likely that Mr. Singh only visited Dr. Sira at the Derry Road office on Mondays and Thursdays. I do not accept Dr. Sira's explanations for the different versions as reliable.

I looked at an original record for May 14, 2001 which Dr. Sira said was his first entry for Mr. Singh and which he said was true. The ink and writing used to record "injury R knee" appear to be the same. I do not know how Dr. Sira can remember which notes are true from those which he edited. In view of the discrepancies in the different versions, Dr. Sira's admitted failure to keep the notes he made contemporaneously with the examination, Dr. Sira's admission that he constantly edits his notes and Dr. Sira's explanation for the different versions, I do not accept any version of the notes as reliable evidence of Mr. Singh's complaints. Nor do I accept the record for May 14, 2001 as reliable. Nor do I accept Dr. Sira's opinions because they were based on unreliable evidence of what he recorded.

The first reliable record that Mr. Singh had knee complaints after the accident, is an OHIP record that the knee was x-rayed at the request of Dr. Sira on May 31, 2001. This was coincident with Dr. Zeldin's report that Mr. Singh told him that about a month after the accident he noted some right knee pain and he had an x-ray taken which was negative. Although Mr. Singh denied telling Dr. Zeldin that his knee started bothering him a month after the accident, I have no evidence to explain why Dr. Zeldin would make this up. Mr. Singh could not remember the names of the doctors he saw or the order in which he saw them. I accept Dr. Zeldin's written report of what Mr. Singh told him as more reliable than Mr. Singh's memory of what he told Dr. Zeldin more than two years ago.

Knee complaints were not mentioned in any Treatment Plan or Disability Certificate. Despite Mr. Singh's testimony that he told the therapists at Motivated Rehab about his knee pain, the two Treatment Plans submitted by Motivated Rehab, dated May 16, 2001 and July 25, 2001, propose 14 weeks of treatment for Mr. Singh's neck, back and shoulder. The Treatment Plans do not refer to the knee.

Dr. Sira submitted two Disability Certificates dated May 24 and December 20, 2001. They describe Mr. Singh's disability as neck and back pain which prevented him from bending and lifting. In June 2001, Wawanesa arranged for an in-home assessment. The therapist reported that Mr. Singh complained of pain in his neck, shoulders, back and some discomfort in the right knee. He reported difficulty kneeling and squatting because of pain in his back.

On July 20, 2001, an FAE was performed for Wawanesa. The therapist noted that during one test, Mr. Singh complained of pain in the right knee and that he experienced pain in the knee once or twice a week which lasted one or two minutes. In that report, Mr. Singh related his inability to return to work to neck pain, which prevented him from turning his head, and back pain, which prevented him from lifting. He did not attribute any disability to knee pain. Mr. Singh testified that he told the assessor that he had pain whenever he walked. I heard no evidence to explain why the assessor would make such a mistake. I find the report more reliable than Mr. Singh’s memory of what he said more than two years ago.

In his report of July 30, 2001, Dr. Zeldin noted that Mr. Singh attributed his inability to return to work to neck and back pain.

On September 24, 2001, Mr. Singh applied for Employment Benefits. In answer to the question "what is the nature of your illness or injury?", he replied that it was "injury to back and neck." He testified that someone at the employment centre helped him complete the form.

Except for the x-ray on May 31, 2001, I heard no reliable evidence to suggest that disability due to a knee injury was an issue in the six months up to the time Wawanesa notified Mr. Singh that it would not pay further income replacement benefits. I accept Dr. Bull's opinion that Mr. Singh was more sensitive to pain than others and I do not consider the occasional record of knee discomfort in the first six months following the accident as persuasive evidence that Mr. Singh was disabled by knee pain. If Mr. Singh was disabled by a knee injury, I would have expected some evidence in either the two Disability Certificates, two Treatment Plans, the application for Employment Benefits, the FAE report, the in-home assessment or the examination by Dr. Zeldin. It was not noted as a disabling condition and I heard no reliable explanation as to why not.

Disability due to a knee injury did not become an issue until after Wawanesa notified Mr. Singh that it would not pay further income replacement benefits after November 30, 2001. On December 12, 2001, Dr. Sira referred Mr. Singh to Dr. McGonigal. In March 2002, Dr. McGonigal describes "deep-seated pain with the knee with physical activity." On September 4, 2002, Dr. Zarnett reported that "This gentleman's pain is somewhat out of proportion to what I would have expected with an anterior cruciate ligament injury. I would not expect him to be as disabled as he appears to be." Dr. Bull testified that he would not recommend a surgical repair of the ACL because it would not cure the "severe pain" which occurred whenever Mr. Singh walked for more than ten minutes. Dr. Bull testified that Mr. Singh was more sensitive to pain than most people. Again, this begs the question, if Mr. Singh had disabling knee pain and he was particularly sensitive to pain, why did it take more than six months for this condition to appear in the medical records.

In my view, the only reasonable explanation of the evidence I heard is that Mr. Singh's disability due to knee pain is not credible. I therefore find that Mr. Singh was not disabled due to knee pain or knee instability.

Cause of knee problems:

Although I have found that Mr. Singh was not disabled due to a knee problem, I heard evidence that his knee problems were caused by the accident and I will deal with it.

Mr. Singh described the impact as a "Big one. Quite an impact." in which his right knee hit the dashboard. Dr. Bull agreed that the typical injury to an ACL is caused by a force which bends the knee inwards or outwards and that twists the knee. He agreed that a direct force to the knee is not the usual cause. A straight on impact without torque would have to be very significant to injure the ACL. He testified that it may be difficult to believe that Mr. Singh sustained an ACL injury from striking his knee on the dashboard, that it was not impossible, and that if he received a history that the person directly hit their knee on the dashboard, it would not likely cause an ACL injury. He testified that Mr. Singh was not more susceptible to sustaining an ACL injury because he was quite flexible and had good quadriceps muscles. He also testified that the ACL was shrivelled at the time of the MRI taken in February 2002, which meant that the injury was at least six months old.

Dr. McGonigal reported that a dashboard injury to the knee is not the usual way an ACL is injured and that "While he denies having difficulty with his knee previously, I find it difficult to believe he may have sustained an ACL injury as a result of the car accident described."

I heard no evidence that Mr. Singh experienced a twisting force as a result of the accident. The preponderance of opinion evidence is that the type of impact Mr. Singh suffered would not likely damage the ACL. I find that Mr. Singh did not damage his ACL in the car accident.

Dr. Bull testified that Mr. Singh suffered from chrondomalacia in both knees before the accident and that it jumped a degree because of the accident. Chrondomalacia is the roughened underside of the patella which causes pain on movement. I have no evidence on the degree to which Mr. Singh suffered from chrondomalacia before the accident and I therefore do not accept that it likely jumped a degree as a result of the accident. It is just as likely that he suffered from the same degree of chrondomalacia after the accident as he did before the accident.

Interest:

If an insurer determines that a benefit is payable, the insurer must pay the benefit within 14 days of receiving an application.⁵ It must pay interest on overdue payments of 2 per cent per month compounded monthly.⁶ It may suspend payments until it receives reasonably required information.⁷

Wawanesa received Mr. Singh's Application for Accident Benefits on May 28, 2001 and his Employer's Confirmation of Income on June 29, 2001. The Employer's Confirmation of Income indicated that Mr. Singh was eligible for short-term disability benefits from Great-West Life. Wawanesa's adjuster communicated with Mr. Singh's counsel and Great-West Life and on November 15, 2001 Great-West Life advised her of the amount of collateral benefit to which Mr. Singh was entitled. The adjuster calculated Mr. Singh's income replacement benefit that day and mailed him a cheque to cover his entitlement from one week after the accident to November 15, 2001, which took into account the collateral benefits Mr. Singh received. Mr. Singh claimed that the benefit was overdue and that he is entitled to interest.

Wawanesa argued that it was entitled to suspend payment until it received reasonably required information and that the payment was not overdue until it received information on the amount of collateral benefits.

The question is what information is reasonably required by the insurer within the meaning of section 33, to justify the suspension of benefits where the insured is eligible for collateral benefits.

Having regard to the consumer protection purpose of insurance law⁸, the fact that the insured is injured and disabled from work and may have difficulty obtaining information about collateral benefits, the fact that an automobile insurance company has the resources and experience to deal with group insurers, the fact that the purpose of the interest provision of two per cent is to encourage prompt payment to a person who has lost his income, I believe that the information that the insurer reasonably requires is the information that the insured has collateral benefits. Once the insurer has that information, it bears the responsibility of determining what the deduction is for the collateral benefit.

Accordingly, the income replacement benefits were overdue on July 13, 2001, 14 days after Wawanesa received the Employer's Confirmation of Income which indicated the name and policy number of the collateral insurer. If the parties cannot agree on the calculation of the amount of interest, they may make written submissions to me within 45 days of the date of this decision.

Notice of termination:

Mr. Singh claimed that the notice of termination he received was defective because he did not receive 14 days' notice as required by section 37(3)(a) of the Schedule. Wawanesa terminated benefits effective November 30, 2001 by letter dated November 14, 2001 and Notice of Stoppage of Weekly Benefits. After Mr. Singh's address, the letter indicated "Overnight Courier." Mr. Singh testified that he received the letter and Notice of Stoppage by regular mail. Wawanesa's adjuster testified that it was the company practice to deliver the notice of termination by overnight courier. Mr. Singh did not ask her for the courier receipt before the hearing, and the adjuster did not produce one.

Although not mentioned in the pre-hearing letter, Mr. Singh raised insufficient notice of termination in his Application for Arbitration. One of the reasons a party delivers a notice by courier is so that they have a receipt to prove that the notice was delivered. In these circumstances, where the applicant has raised the issue of insufficient notice, the insurer has the burden of proving that it delivered the notice by courier. I find that Wawanesa has not satisfied the burden on it of proving that it delivered the notice by courier and I find that it did not give sufficient notice of termination as required by section 37 of the Schedule.

In Abarca and Allstate Insurance Company of Canada,⁹ the arbitrator awarded weekly benefits for four days where she found that the notice of termination was four days short of the requisite 14 day period. Although this decision was made under the former Schedule, I agree that where the insured has not demonstrated prejudice, substantial compliance with the 14 day notice period is sufficient. I heard no evidence when Mr. Singh received the notice of stoppage. I find that it was mailed on November 14, 2001 and he received it on November 18, 2001. If he had received a full 14 days' notice, he would have received an additional four days in benefits. I therefore allow $114.28 to compensate him for the deficiency in the notice.

Special award:

Under section 282(10) of the Insurance Act, I am required to make a special award where I find that the insurer has unreasonably withheld or delayed payment. In this case, Wawanesa delayed payment of income replacement benefits until it received information as to the amount of collateral benefits. The adjuster issued a cheque the same day Great-West Life advised her of the amount of the collateral benefits. I am not aware of any case that has dealt with who bears the responsibility for late payment of income replacement benefits where the production of information on collateral benefits is delayed. In these circumstances, I do not find that Wawanesa acted unreasonably.

As for Wawanesa's failure to provide 14 days' notice of termination, I find that Wawanesa mailed the notice and therefore withheld four days benefits and interest on those benefits. Mr. Gillen argued that if I found that Wawanesa failed to comply with section 37, the notice of termination was ipso facto unreasonable. I do not see how Wawanesa's failure to prove that it gave adequate notice is evidence of unreasonable conduct.

EXPENSES:

The parties asked that I not deal with expenses at this time. If they are unable to agree on the issue of entitlement or amount, they may apply for a hearing by telephone on the issue in accordance with Rule 75 of the Dispute Resolution Practice Code (Fourth Edition).

October 17, 2003

William J. Renahan Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Wawanesa shall pay Bachittar Singh $114.28 together with interest of two per cent per month compounded monthly from December 1, 2001.
Wawanesa shall pay Mr. Singh interest of two per cent per month compounded monthly from July 13, 2001 to November 15, 2001 on income replacement benefits owing to Mr. Singh on and after July 13, 2001.
The issue of entitlement to expenses of the arbitration proceeding is deferred.