Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 146

FSCO A04-000161

BETWEEN:

JOSE PEREIRA

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

August 15, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Pereira represented himself

Tricia McAvoy for Kingsway General Insurance Company

The Applicant, Jose Pereira, was injured in a motor vehicle accident on September 11, 2001. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway terminated weekly income replacement benefits on April 4, 2003. Mr. Pereira sought further benefits. The parties were unable to resolve their disputes through mediation, and Mr. Pereira 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. Pereira entitled to income replacement benefits from April 5, 2003 to May 4, 2004 pursuant to section 4 of the Schedule?
Is Mr. Pereira entitled to attendant care benefits from September 11, 2001 to September 6, 2003 pursuant to section 16 of the Schedule?
Is Mr. Pereira entitled to housekeeping expenses pursuant to section 22 of the Schedule for 104 weeks, and if so, in what amount?
Is Mr. Pereira entitled to the following costs of examinations pursuant to section 24 of the Schedule:

$1,198.40 for an in-home assessment performed by International Health Assessments Corporation;
$995.10 for a job site analysis performed by International Health Assessments Corporation;
$1,909.95 for a psychological assessment performed by International Health Assessments Corporation; and
$1,070 for a functional abilities evaluation performed by Finch Weston Assessment Centre.

Is Mr. Pereira entitled to a special award pursuant to section 282(10) of the Insurance Act?
Is either party entitled to expenses of the arbitration proceeding.

Mr. Pereira is entitled to income replacement benefits pursuant to section 4 of the Schedule from April 5, 2003 to May 4, 2004 together with interest from April 19, 2003 on overdue payments at the rate of two per cent per month compounded monthly.
Mr. Pereira withdrew his claim for attendant care benefits.
Mr. Pereira withdrew his claim for housekeeping expenses.
Kingsway indicated that it paid for the assessments performed by International Health Assessments Corporation. Mr. Pereira is not entitled to the cost of the functional abilities evaluation performed by Finch Weston Assessment Centre.
Mr. Pereira is not entitled to a special award.
Either party may contact the case worker on this file to arrange a date for me to determine entitlement to expenses of the arbitration proceeding by teleconference.

Preliminary issue

At the outset of the hearing, Mr. Joseph Donnelly applied for permission to withdraw as Mr. Pereira's representative and Mr. Pereira consented. I allowed Mr. Donnelly to withdraw as representative.

Background

Mr. Pereira was on Highway 400 returning from Casino Rama with his partner in the early hours of September 11, 2001, when his compact car was struck from behind. The vehicle left the road, flipped end over end and rolled. It is not clear when, but at some point Mr. Pereira was thrown from the vehicle. He was assessed in the emergency department of the Royal Victoria Hospital in Barrie at 5:55 a.m. and released home at 8:55 a.m. According to the emergency department notes he suffered multiple abrasions to his head, back and flank area.

Mr. Pereira's family doctor, Dr. Choi, and a chiropractor have treated Mr. Pereira for soft tissue injuries to his shoulder, back, hip and neck.

Legal test for entitlement to income replacement benefits

Under section 4 of the Schedule, for the first 104 weeks following an accident, Mr. Pereira is entitled to income replacement benefits if he suffers a substantial inability to perform the essential tasks of his employment. After 104 weeks, he is entitled to income replacement benefits if he suffers a complete inability to engage in any employment for which he is reasonably suited.

Mr. Pereira seeks benefits up to and beyond the 104 week mark.

Employment history

At the time of the accident, and for the previous five years, Mr. Pereira worked in the construction industry as a general labourer. He did what ever he was given to do, such as breaking up concrete with a jack hammer. His most recent job was that of a concrete cutter. He would drive a truck to 30 to 40 job sites a day and take a concrete cutter out of the back of the truck and make a cut in the roadway or curbs and then put the cutter back in the truck. The hardest part of the job was taking the concrete cutter in and out of the truck. The occupational therapist hired by the Insurer found the machine weighed 30 pounds. The occupational therapist hired by Mr. Pereira said the machine weighed 55 pounds. The machine was on wheels and easy to push as it cut the concrete.

Prior to working in construction, Mr. Pereira worked 14 years in a slaughterhouse. The hardest part of that job was standing all day. Prior to this work, Mr. Pereira was an electrician in Portugal.

Mr. Pereira was 43 years old at the time of the accident. The concrete cutter work was not particularly heavy. Except for the lifting 30 or 40 times a day, it is relatively easy work and allows for some freedom from standing all day. I find that general labour work in construction, similar to concrete cutting, is suitable work for Mr. Pereira.

The evidence

At the time of the accident, Mr. Pereira lived with his partner in a rented townhouse. He worked the construction season from March to mid-December and then received employment insurance for the winter. In the last full three weeks before the accident he earned $838.86, $1,384.12 and $1,398.10.

After the accident, Mr. Pereira received $400 per week in accident benefits. In January 2002, he was evicted from the townhouse and went to live with a friend in a bachelor apartment. Several assessors reported that he suffered financial hardship. It is not clear whether his leaving the townhouse was entirely due to financial pressures, or a break-up with his partner or a combination.

After paying weekly benefits for about a year and a half, Kingsway terminated income replacement benefits on the basis of assessments by a physiatrist and a psychologist that Mr. Pereira was not substantially disabled.

Mr. Pereira claims that he was not physically able to return to work until about one year later, when he did return to work. Mr. Pereira testified that his most serious complaint was low back pain, that it still bothers him and that he went back to work as soon as he felt well enough.

One of the questions I consider is why did Mr. Pereira give up a fairly good income and live a financially stressful life for one year in exchange for the hope of recovering less than one-half his financial loss from Kingsway?

Credibility of Mr. Pereira

Mr. Pereira testified in chief for less than ten minutes. He said that he has worked steadily since he came to Canada 19 years ago, that he was off work when he could not work and he could not understand why he had to lose four day's pay to attend this hearing.

Under cross-examination, and before he withdrew his claims for housekeeping expenses and attendant care expenses, Mr. Pereira testified about the help he received after the accident. He said that the occupational therapist misunderstood him when she reported that he did not engage in household activities before the accident. He submitted "Application for Expenses" forms for housekeeping at $100 per week. He testified that some people, who he could not remember, came three times a week and he paid $50 or $70 a day in cash for housekeeping services. He did not receive any receipts. Later, he remembered the name of the person who came to do the housekeeping but he could not find her to come to the hearing. He paid her $70 a day, again without receipts. He testified that he had never seen the Application for Expenses which bears his signature.

Mr. Pereira submitted claims for housekeeping expenses, in the amount of $10,300, and attendant care expenses in the amount of $19,602. He signed Application of Expenses forms in which he certified that the information he provided was true and correct.

Before he withdrew the claims for housekeeping expenses and attendant care expenses, Mr. Pereira could give no reliable evidence with respect to those claims. He had no records or memory of who provided what services. I find it unbelievable that a person who was in dire financial circumstances and had to borrow money to survive would spend $50 to $70 a day, three times a week, on housekeeping services without some memory of what those services were and without some record of what he spent.

I did not find Mr. Pereira a credible witness. I find that he would say anything in an attempt to prove his claim, whether it was true or not.

Therefore, I do not accept his testimony, by itself, that he was unable to work until May 4, 2004.

The only other evidence I received on any impairment Mr. Pereira suffered, was physical and psychological assessments.

Physical impairment

In November 2001, Kingsway arranged a physical assessment with Dr. S. Sober, an orthopaedic surgeon. He noted Mr. Pereira's complaints of neck and lower back pain. He found it hard to accurately assess Mr. Pereira's degree of disability because of his pain behaviour. Two functional capacity evaluations arranged by Kingsway in April 2002 and January 2003, also noted symptom magnification, inconsistent data and attempts to withhold true physical capacity. A third physical capacity evaluation report in November 2003, found no evidence of symptom magnification. The assessor found the results reliable, and concluded that Mr. Pereira could not work as a construction labourer. This assessment was arranged by Mr. Pereira.

In January 2003, Mr. Pereira's family doctor, Dr. Choi, referred Mr. Pereira to Dr. Philippe de Bosset, a rheumatologist. As others, Dr. de Bosset noted Mr. Pereira's inconsistent examination responses. He reported his opinion that, from a physical point of view, Mr. Pereira was able to carry out a gainful occupation without any restriction.

In February 2004, Mr. Pereira's lawyer referred him to Dr. S. W. Joseph Wong, a physiatrist. Dr. Wong noted that physical findings continued to be abnormal and that Mr. Pereira could not return to work as a concrete cutter and would require retraining. Mr. Pereira returned to work two months later.

I found no explanation as to how supposedly objective functional abilities evaluations came to opposite results. I do not find any of them reliable. Dr. Wong's prognosis was inaccurate and I have little confidence in his opinion. The only remaining evidence on physical impairment is that of Mr. Pereira's own doctor, Dr. de Bosset, who thought Mr. Pereira could work without any restriction. Accordingly, I find no reliable evidence that Mr. Pereira suffered a substantial inability to perform the essential tasks of his employment or suffered a complete inability to engage in suitable employment on account of a physical impairment.

Psychological impairment

Dr. Judith Pilowsky, a psychologist, saw Mr. Pereira two months after the accident and reported:

It seems that Mr. Pereira's pre-accident functioning was excellent. He was employed at a job that paid him a good income and he enjoyed his work duties. As well, his relationship with his partner was fine.

Clinically, it is my professional opinion that Mr. Pereira has developed a Major Depressive Disorder . . . moderate severity. This disorder is characterised by his current symptoms of depressed mood, irritability, cognitive problems, sleep and relational problems, and anxiety associated with his car accident. His ruminating thoughts about the accident and inability to work also help to sustain his negative mood.

Kingsway paid Dr. Pilowsky for the treatment she recommended.

In January 2002, Dr. P. Marton, a psychologist, assessed Mr. Pereira for Kingsway. He did not think that Mr. Pereira was significantly impaired from resuming his pre-accident work activities.

In March 2002, Dr. Pilowsky advised Kingsway that Mr. Pereira failed to appear for treatment and that she was closing her file. Kingsway advised Mr. Pereira that it would reduce income replacement benefits pursuant to section 55 of the Schedule if he did not attend for treatment.

In August 2002, Dr. Pilowsky reported that Mr. Pereira's intermittent attendance was a barrier to recovery. She also felt that his depression and anxiety symptoms precluded him from working at that time.

Dr. Choi's notes contain a handwritten report from Dr. L. Gotkind, a psychiatrist, in which he diagnosed a pain disorder subsequent to the motor vehicle accident and an anxiety disorder with depression due to crippling disabling pain. He prescribed medication and "to continue with myself in supportive exploratory psychoeducational insight therapy."

In July 2003, Dr. Otto Weininger, a psychologist, assessed Mr. Pereira at his request. He found severe major depression and anxiety because of chronic pain "and the antecedents of chronic pain, namely inactivity and extremely poor sleep." He did not express an opinion on Mr. Pereira's ability to work.

Mr. Pereira's depression and anxiety were evident shortly after the accident. He stopped working, went into debt, moved out of the family home into a shared bachelor apartment and ended his marital relationship. His family doctor, Dr. Choi, was concerned and referred Mr. Pereira to a psychiatrist in January 2003. I find that Mr. Pereira was depressed and anxious following and as a result of the accident. The question is whether this psychological impairment prevented him from returning to construction labour work. Dr. Pilowsky said "yes" and Dr. Marton said "no."

I prefer the opinion of Dr. Pilowsky because she at least recognized and took into consideration that Mr. Pereira made a good living before the accident. Dr. Marton did not.

On the evidence I heard, the only reasonable explanation as to why Mr. Pereira gave up a good living in exchange for weekly benefits of about one-half his salary and then went without income for one year before returning to his job in construction, was that the depression and anxiety he suffered as a result of the motor vehicle accident prevented him from returning to this work.

He is therefore entitled to income replacement benefits from April 4, 2003 to May 4, 2004.

Functional Capacity Evaluation

On November 3, 2003, Finch Weston Assessment Centre performed a "Functional Capacity Evaluation" on Mr. Pereira which it forwarded, with its invoice for $1,070, to Kingsway. Kingsway refused to consider it because it claimed that Finch Weston Assessment Centre did not first seek its approval as required by section 24 of the Schedule.

On October 1, 2003, section 24 of the Schedule was amended to provide that, with specified exceptions, an insurer is not required to pay an examination cost if the expense is incurred before obtaining the approval of the insurer. Section 38.2 sets out the procedure the parties should follow when applying for approval of an expense under section 24 and the procedure to follow where the insurer denies approval.

The fees charged by Finch Weston Assessment Centre do not fall within the specified exceptions to the approval process. I heard no evidence that Mr. Pereira first sought approval from Kingsway. Accordingly, Kingsway is not required to pay the fee.

SPECIAL AWARD:

I heard no evidence that Kingsway unreasonably withheld or delayed the payment of any benefit.

EXPENSES:

If the parties cannot agree on who is entitled to expenses of the arbitration proceeding, either party may contact the case worker within 30 days of the date of this decision, to arrange a teleconference for me to determine the issue.

October 14, 2005

William J. Renahan Arbitrator

Date