Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 165

FSCO A04-001256

BETWEEN:

JOSEPH GALATI

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

July 10, 11, 12, 13, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Glenroy K. Bastien for Mr. Galati

William G. Scott for Aviva Canada Inc.

The Applicant, Joseph Galati, was injured in a motor vehicle accident on May 13, 1997. He received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule,¹ and Aviva subsequently terminated payments. The parties' disputes did not resolve through mediation, and Mr. Galati 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. Galati entitled to income replacement benefits after September 22, 1997 under Part II of the Schedule?
Is Mr. Galati entitled to $22,743.63 for medical and rehabilitation benefits under Part V of the Schedule?
Is Mr. Galati entitled to $15,000 for housekeeping and home maintenance expenses under section 22 of the Schedule?
Is Mr. Galati entitled to payment of $1,436 for the costs of two medical examinations under section 24 of the Schedule?
Is Mr. Galati entitled to a special award under subsection 282(10) of the Insurance Act?
Is Mr. Galati or Aviva entitled to their expenses of this arbitration under subsection 282(11) of the Insurance Act?

Mr. Galati's claim that he lost $30,000 on the sale of his home is not included in the issues and reasons because I find that this claim does not fall within any category of benefit compensable under the Schedule. A dismissal order is made accordingly.

Mr. Galati is not entitled to payment of income replacement benefits after September 22, 1997.
Mr. Galati is entitled to payment of $500 for nerve block injections, $1,548 for massage therapy treatment, and to reimbursement for pain and sleep medications he has incurred since the accident. He is not entitled to payment for all other transportation, medical and rehabilitation claims he made in this arbitration.
Mr. Galati is not entitled to payment for housekeeping and home maintenance expenses.
Mr. Galati is not entitled to payment for the cost of two medical examinations.
Mr. Galati is not entitled to a special award.
The parties' claims for the expenses of this arbitration are deferred.

Background:

Mr. Joseph Galati was a married father of three children at the time of the May 13, 1997 motor vehicle accident. He was employed as a full-time real estate sales manager in the greater Toronto market, and enjoyed good health.

Mr. Galati's automobile was rear-ended by another car while he was turning right, and he was initially diagnosed with neck and back whiplash injuries resulting from the collision. He received physiotherapy treatment, and resumed working shorter hours at his real estate job soon after the accident.

Mr. Galati received income replacement benefits based on his family physician's disability certificate stating that he suffered a substantial inability performing his essential job tasks. He continued real estate work in Toronto for approximately 4 years afterwards, separating from his family during November 2001 by moving to his parents' Montreal home. Since 2004 Mr. Galati has been receiving Quebec employment assistance benefits as a severely work disabled person, and presently lives independently in government subsidized housing.

Mr. Galati's tax records from 1997 through 2002 indicate that he earned substantially more income from real estate sales after the accident than he did beforehand. Whereas he made $8,000 and $11,000 respectively in 1994 and 1995, he earned $26,000 in 1997, the year of the accident, and $39,000 the year afterwards. Mr. Galati grossed $52,000 in 1999, and netted $30,000 in 2000. His 2001 return shows approximately $16,000 income from real estate commissions, and $14,000 during 2002, his last working year after moving to Montreal. This uncontradicted evidence establishes that Mr. Galati made more money in his last working year before he quit real estate than he did in either of the two full years prior to the accident.

Mr. Galati attributes his increased post-accident earnings to deferred and/or large single commissions, repeat customers and new marketing techniques, but this does not plausibly explain how he was able to make two or three times what he did before the accident while suffering a substantial disability. In my opinion, the sizable amounts of Mr. Galati's post-accident earnings compared to his pre-accident income creates a strong presumption he was capable of performing his essential job tasks in a real estate sales and management.²

In order to recover income replacement benefits, Mr. Galati must establish on a balance of probabilities that he suffered a substantial inability performing his essential job tasks as a real estate salesperson and manager from September 22, 1997.³ After the first 104 weeks of his disability, he must prove he suffers a complete inability to engage in any employment suitable to his education, training and experience.⁴ The evidence fails to establish Mr. Galati's entitlement to further income replacement benefits after September 22, 1997.

Mr. Galati's Testimony:

Mr. Galati testified that his initial symptoms (neck stiffness, pain in his tail bone, back, right hip and groin) did not subside. The physiotherapy treatments soothed some of them, but he said that the later chiropractic sessions and strenuous exercise exacerbated his low back. He testified that his main complaint is severe and debilitating low back pain as a result of the accident.

Mr. Galati's evidence that the subsequent nerve block injections, pain relievers, sleep drugs and anti-inflammatory medication helped him to tolerate the pain is supported by the continuous record of his complaints during his treatment at the Rothbart Pain Management Clinic (Rothbart Clinic) from the summer of 1998 through the fall of 2000.

The evidence that Mr. Galati's soft tissue neck and back pain did not resolve is consistent with his testimony that he stopped playing sports, attending social or business functions and greatly reduced family activities after the accident. He stated he took sizable amounts of pain and sleep medication. Mr. Galati testified that his marriage suffered, and he worked less often and less effectively.

Two former business associates who were friendly with Mr. Galati when he lived in Toronto testified for him. Mr. Nicholas Neaimi and Mr. Joseph Levstik confirmed Mr. Galati's evidence he was active before the accident and complained of back pain post-accident. However, they saw him less frequently after the accident, and knew little about his specific business activity. While their evidence corroborates that Mr. Galati suffered back pain post-accident, it holds little value respecting his work level.

Mr. Galati characterized his post-accident working ability as "1/10 of 1 per cent", saying that one physician told him he is dying, and three others recommend surgery. He stated he must wear a steel back brace or corset most days, use crutches to walk, and characterized his accident injuries as "catastrophic."⁵ No health care opinion supports Mr. Galati's claim he was catastrophically injured from the accident and no health care expert recommends his continued use of the these assistive devices.

Mr. Galati admitted that his family doctor's disability certificate correctly stated he was able to work one or two hours per day from home soon after the accident. He denies the 1997 report from a Designated Assessment Centre that he was working 50% of capacity 8 to 10 weeks post-accident, and also the 1998 note from the Rothbart Clinic that he was working at 60% to 70%.

The 2004 surveillance of Mr. Galati bending, reaching and squatting to clean the inside of his car and apply a can of spray touch up paint contrasts with his self-portrayal as a catastrophically injured person. His explanation that he felt better at that particular time with treatment is contradicted by his 2004 application for Quebec employment benefits, claiming he suffered a severe work disability.

Mr. Galati offered no plausible explanation for the contradictions between his claimed disability, his work income and the surveillance. I find that Mr. Galati exaggerates his pain and disability, and his evidence is not reliable, except where it is undisputed.

Mr. Galati's Essential Job Tasks:

Mr. Galati's evidence about his job duties is not disputed, and is the best available. Mr. Galati testified that he recruited, hired and trained agents, obtained listings, visited clients, and measured homes for listing at the small real estate brokerage firm that employed him at the time of the accident. Seventy per cent was office work, consisting of telephone calls, paperwork and computer research, with flexibility to work from home.

On this evidence, I find Mr. Galati's job was comprised of 70% sedentary telephone and administrative work at his office or home, plus 30% travelling and meetings with clients to show, negotiate and examine homes.

Health Care Evidence:

Radiology tests support Mr. Galati's complaints that he has endured low back pain since the accident. His cervical spine x-rays were normal immediately post-accident, but the 1998 CT and MRI images with greater resolution show a slight curvature (scoliosis), and mild inflammation of three lumbar (low back) facet joints. A 2003 CT scan determined that Mr. Galati had a small bony growth at the L1-L2 level, and an un-fused corner fracture at the L2 vertebrae with mild disc bulges throughout the lumbar spine area. There is no information indicating any nerve root impingement or disc compression.

Mr. Galati's income replacement benefits were terminated by Aviva in the fall of 1997 following his appointment at a Designated Assessment Centre ("DAC"). Dr. Karl Massiah, the examining orthopaedic specialist, found full range of neck and low back movement, with pain only at the end ranges of motion. He testified that Mr. Galati's spinal curvature is congenital, not trauma-related, and that half of all 50 year old people have similar spinal deterioration and arthritis.

Dr. Massiah dismissed Mr. Galati's complaints as unsubstantiated by objective physical evidence, but admitted his lack of knowledge of the bone fracture shown on the later CT scan is significant. I do not rely on Dr. Massiah's conclusions because he did not know about the small fracture in finding Mr. Galati had no evidence of a physical injury.

In his testimony, the physiatrist at a fall 1997 medical and rehabilitation DAC attached value to Mr. Galati's symptoms based on his physical examination. Dr. George Rado found no muscle wasting or significant loss in range of motion, but testified that Mr. Galati's increased low back muscle tone, when arching from a prone position, indicates he suffers low back pain.

Dr. Rado's report recommends additional physiotherapy with a diagnosis of incompletely resolved cervical and lumbar strain, but he does not address or offer an opinion supporting Mr. Galati's claim he suffers a substantial inability with his essential work tasks.

The 1998 report of Dr. Douglas Stoddard, a sports medicine specialist referred by Mr. Galati's family physician, also indicates that Mr. Galati had tenderness/muscle tightness/sensitivity in his right hip/sacroiliac joint, indicating tendinitis/bursitis consistent with soft tissue pain. Dr. Stoddard did not see the radiology reports and did not provide an opinion about Mr. Galati's disability.

Dr. G. D. Gale directed Mr. Galati's treatment at the Rothbart Pain Clinic, and concluded in a 1999 report that Mr. Galati's recovery had peaked. His opinion is that Mr. Galati has a limited ability to bend down and reach to measure homes, qualifying as a significant partial work limitation.

Mr. Galati relies on Dr. Gale's report that he suffers a serious permanent partial injury from bending. However, Dr. Gale relied to some extent on Mr. Galati's representation of his work capacity because his last report in 2000 states he reduced his real estate clientele from eight or nine monthly pre-accident listings to one or two per month, when his tax returns show he earned $52,000 and $30,000 in 1999 and 2000 respectively. I reduce the weight of Dr. Gale's disability conclusion not only because he relied on Mr. Galati's information he reduced his sales, but also because he did not testify to explain the surveillance that shows him doing the same types of activity (bending and twisting) for measuring homes.

Mr. Galati also relies on Dr. Peter Jarzem, the orthopaedic surgeon treating him at the Montreal physiotherapy clinic, and who produced a 2004 medical report. Dr. Jarzem's findings of right low back muscle mass with spasm and increased tension match with Dr. Stoddard's and Dr. Rado's similar findings. He found that Mr. Galati's hip motion was full, but with pain at the end ranges, and there was tenderness in the left cervical area as well.

Dr. Jarzem concluded that Mr. Galati's limited ability to bend or twist as a result of his low back problem represents a significant work disability, but again he did not testify to explain the surveillance showing him able to bend and twist. Dr. Jarzem's general conclusion that Mr. Galati is unfit for any work gives me little confidence because he does not address the surveillance or other suitable work duties. I do not give Dr. Jarzem's opinion very much weight.

Disability Conclusion:

There is scant reliable expert evidence to support Mr. Galati's claim that he suffered a substantial inability with his essential job tasks as a real estate salesperson/manager when that evidence is compared to the strong presumption against his entitlement created by his continuous five year post-accident job earnings. Mr. Galati exaggerates his pain and disability, and his experts were not called to explain the surveillance that shows him able to bend and twist.

The health care evidence that Mr. Galati experienced continual mild low back pain does not outweigh the strong presumption he worked effectively, the weaknesses in his expert's opinions, and his lack of credibility. I accept Mr. Galati endures discomfort from back pain as a result of the accident, but find that he did not suffer a substantial inability performing his essential tasks as a real estate salesperson and office manager after September 22, 1997. He therefore is not entitled to further income replacement benefits.⁶

Medical/Rehabilitation Benefits:

Mr. Galati must establish that it is reasonable and necessary⁷ Aviva pay his treatment claims for chiropractic, physiotherapy, massage and nerve blocks injections, as well as reimburse him for medications/vitamins, purchase of a TENS unit, transportation by taxi and his physician's fee for a house call. He did not specifically identify the evidence he relies on to support his medical and rehabilitation claims. I understand Aviva relies on Dr. Rado's September 1997 opinion from the DAC.

Dr. Rado's examination findings that Mr. Galati had mild unresolved back pain and his recommendation for home exercises along with sleep medication are supported by the 1998 radiology report of mild inflammation of the lumber facet joints. These radiology findings with Dr. Rado's and Dr. Jarzem's reports of mild lumbar spine pain and muscle tenderness cumulatively establish that Mr. Galati continued to have mild low back pain as a result of his accident-related injuries.

The evidence is undisputed that Mr. Galati's 1998 and 1999 nerve block injections helped relieve his back pain for a considerable time, and no health care opinion directly refutes Dr. Jarzem's 2004 recommendation for a third round of this type of treatment. I accept Dr. Jarzem's recommendation and find the third set of nerve block injections were reasonable and necessary for relief of Mr. Galati's back pain and muscle spasms. I find that Mr. Galati is entitled to reimbursement of the $500 he paid for the injections he underwent.

My determination that Mr. Galati is entitled to the third round of nerve block treatments does not necessarily authorize continued funding. Decisions about Mr. Galati's future treatment should be individually evaluated.

Dr. Jarzem recommended massage to accompany the nerve blocks, but does not give reasons or set out the treatment frequency and duration. While I am prepared to agree with Dr. Jarzem's general recommendation for massage therapy, I find that the massage therapist's plan for twice weekly sessions the first three months and once weekly the following nine months is not reasonable or necessary because he gives no reason for this time length.

Based on the undisputed evidence that Mr. Galati's nerve block injections provided him with reasonable pain relief for about three months, I find that twice weekly massage therapy for three months is also reasonable and necessary for his palliative pain relief. I find that Mr. Galati is entitled to reimbursement of $1,548 of massage therapy ($60 per session x twice weekly x 4.3 weeks/month x 3 months).

Mr. Galati submitted physician referral slips to support his claims for funding of a chiropractic treatment program ($1,060), a physiotherapy treatment plan ($650) and incurred treatment ($300). The referrals contain no diagnoses, analyses of the prospective treatment or prognoses to support the general recommendations. The chiropractor did not provide any details to support his recommended 2006 treatment plan, and I could not find a physiotherapy treatment plan in Mr. Galati's documentary evidence.

The experts Mr. Galati relies on (Dr. Jarzem and Dr. Gale) do not recommend chiropractic or physiotherapy treatment, and he indicated in his evidence he continues to stretch and exercise on his own in accordance with the suggestions of consulting health care experts. While Dr. Rado did recommend that Mr. Galati receive additional physiotherapy instruction in 1997, that opinion is too distant from the current treatment plan for it to bear much relevance eight years later. Based on the lack of a relevant supporting health care opinion, I find that Mr. Galati's claims for chiropractic and physiotherapy treatment are not reasonable or necessary.

Mr. Galati submits a health care prescription to rent a TENS machine, but claims $228 for purchasing one. Again, there is no health care opinion setting out the reasons he needs to purchase a TENS unit, and I am unwilling to assume it is reasonable and necessary for treatment of mild low back pain. I find that Mr. Galati's purchase of the TENS unit is not a reasonable or necessary expense, and he is not entitled to reimbursement for the $228 paid.

Mr. Galati also claims $89.15 for purchasing a pelvic traction belt, but there is no health care recommendation he use or purchase one, and I do not accept the authenticity of this handwritten statement. I find that Mr. Galati is not entitled to payment for a pelvic traction belt.

Mr. Galati's long list of various medications and vitamin supplements rejected by Aviva since the accident fall under subsection 14(2)(c) of the Schedule. Although medication is not limited to prescriptions alone⁸, Mr. Galati has not presented a health care opinion recommending vitamin supplements for treatment of his accident-related injuries, and I find he is not entitled to reimbursement for the non-prescription vitamins/supplements.

However, I accept that Mr. Galati has experienced back pain, and is entitled to the prescription medicines for pain control and sleep. There is not sufficient information from Mr. Galati's individual prescriptions and Aviva's materials to determine exactly what has been paid, and hopefully the parties can resolve this from my general findings. If not, they can arrange a hearing resumption to address the specific prescriptions and amounts.

The February 2006 receipt from Mr. Galati's family physician, Dr. Reajan Ouellette, does not state why he made a house visit, and no other health care evidence supports this claim. I find that Mr. Galati is not entitled to $125 for Dr. Ouellette's house call.

Mr. Galati presented seven photocopies of taxi receipts to support his claim for transportation costs to attend medical appointments in 2005 and 2006. The evidence is he did not own a vehicle during this time.

The chief problem with Mr. Galati's claim for taxi reimbursement is a lack of any expert health care opinion that he was unable to take public transit to his appointments. Additionally, two of the seven photocopied receipts do not show pickup or drop off addresses, and another is illegible, while four indicate he attended at his family physician's office in Montreal. I find that Mr. Galati has not established it was reasonable and practical⁹ he take taxis to his health care appointments, and he is not entitled to reimbursement.

The medical and rehabilitation issues in this proceeding do not require a determination as to whether Mr. Galati suffers a "catastrophic impairment", which would remove the applicable 10-year coverage limitation.¹⁰ He has not presented any health care evidence that he suffers catastrophic injuries, and his claim for an undetermined amount of future treatment is not supported by any specific or general recommendations for future care. I make no order awarding Mr. Galati future medical and rehabilitation benefits.

Housekeeping/Home Maintenance Expenses/Attendant Care Benefits:

Mr. Galati claims he is entitled to $15,000 because his mother cleaned, cooked and otherwise took care of him while living he has lived in Montreal. He must establish that his incurred attendant care expenses are reasonable and necessary as a result of his accident-related injuries and/or that the expenses he incurred for his mother's housekeeping and home maintenance were reasoanble and necessary as a result of his accident-related injuries.¹¹

Mr. Galati's evidence fails to establish his entitlement to any expenses under either of these two categories of accident benefits. He did not submit a health expert's recommendation stating that he suffered a substantial inability conducting his essential housekeeping duties or that he required personal assistance as a result of his accident-related injuries. Mr. Galati did not submit statements setting out the name and address of his housekeeper or attendant provider, the dates of services with time periods, types of service provided, hourly rate and proof of any payments to or agreement he made with the service provider. I find that Mr. Galati is not entitled to attendant care benefits or reimbursement for housekeeping and home maintenance expenses.

Costs of Examination:

Mr. Galati seeks for reimbursement of $936 for Dr. Gale's August 1999 examination and report, and $500 for Dr. Jarzem's February 2004 assessment. He must demonstrate that these costs were reasonably incurred for the purpose of obtaining potential accident benefits.¹²

I cannot accept that Dr. Gale's report qualifies because there is no evidence Mr. Galati sought any accident benefits from the fall of 1997 until he filed for mediation during the fall of 2003. Dr. Gale's statement that Mr. Galati suffers a permanent injury as a result of the accident, and the lack of any reference to applicable entitlement tests used in establishing entitlement to accident benefits demonstrates that the report was authored for purposes of his tort claim, not for accident benefits.

The title for Dr. Jarzem's report (medical legal) together with its lack of reference to accident benefits entitlements establishes that Mr. Galati used it for his tort claim or for his claim for Quebec social service benefits. Moreover, Mr. Galati failed to formally apply to Aviva for payment of either as section 24 benefits. I find that the reports and examinations of Dr. Jarzem and Dr. Gale were not incurred for purposes of Mr. Galati's accident benefits under the Regulations, and he is not entitled to reimbursement under section 24 of the Schedule.

Special Award:

Insurers may be liable to pay a special award in addition to the benefits if the arbitrator determines there has been an unreasonable delay or denial in the payment of the awarded benefits.¹³ Mr. Galati's claim for a special award is based on Aviva's failure to tell him at the time of its 1997 termination decision that he could apply for mediation and have an arbitrator appointed to determine his entitlement to further accident benefits.

While Aviva's failure to advise Mr. Galati of his right to legal recourse affects his limitation period for mediation and arbitration of his claims, it does not directly relate to Aviva's decision-making about his accident benefits. Mr. Galati does not allege that Aviva's decision to terminate his accident benefits was unreasonable or provide a factual basis for the argument, and I find he is not entitled to a special award.

EXPENSES:

I defer the issue of the parties' entitlement to the expenses of this arbitration until after they have exhausted their attempts at resolution by referring to Rules 75 through 78 of the Dispute Resolution Practice Code (DRCP). They should follow the process in DRCP Rule 79 if they require me to assess entitlement and/or the amount of their expenses.

October 27, 2006

Fred Sampliner Arbitrator

Date