Kenneth Reid v. ING Insurance Company of Canada, 2007 ONFSCDRS 236

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 236

FSCO A05-002870

BETWEEN:

KENNETH REID

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Judith Killoran

Heard: August 13, 14, 15 and 16, 2007 at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on August 25, 2007.

Appearances: James V. Leone for Mr. Reid

Donald G. Cormack for ING Insurance Company of Canada

Issues:

The Applicant, Kenneth Reid, was injured in a motor vehicle accident on September 19, 2003. He applied for and received statutory accident benefits from ING Insurance Company of Canada (“ING”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Reid 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. Reid entitled to receive a weekly income replacement benefit from September 26, 2003 to September 25, 2005, pursuant to section 4 of the Schedule?
If Mr. Reid is found to be entitled to receive a weekly income replacement benefit, what is the amount of weekly income replacement benefit that Mr. Reid is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Reid entitled to receive a medical benefit of $760 for treatment at Gateway Rehabilitation and Health Institute, according to a treatment plan dated September 24, 2003, and $3,042 for treatment at Gateway Rehabilitation and Health Institute according to a treatment plan dated April 28, 2004, pursuant to section 14 of the Schedule?
Is Mr. Reid entitled to receive $2,300 for housekeeping from September 19, 2003 to February 27, 2004, pursuant to section 22 of the Schedule?
Is Mr. Reid entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Mr. Reid is not entitled to receive a weekly income replacement benefit from September 26, 2003 to September 25, 2005, pursuant to section 4 of the Schedule.
Mr. Reid is not entitled to receive a medical benefit of $760 for treatment at Gateway Rehabilitation and Health Institute, according to a treatment plan dated September 24, 2003, and $3,042 for treatment at Gateway Rehabilitation and Health Institute, according to a treatment plan dated April 28, 2004, pursuant to section 14 of the Schedule.
Mr. Reid is not entitled to receive $2,300 for housekeeping from September 19, 2003 to February 27, 2004, pursuant to section 22 of the Schedule.
Mr. Reid is not entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

The Accident

On September 19, 2003, Mr. Reid was traveling to Barrie in his Ford pick-up truck. The roads were slick when he hit his brakes as he saw the Pathfinder in front of him making a left turn. His back and neck hit the windshield with the force of the impact with the Pathfinder.

Mr. Reid, who was 26 years old at the time of the accident, testified that he was dizzy the night after the accident and his neck stiffened up. He felt pain in his neck, back of his head and low back. Each time he stood up he felt dizzy and sick. He went to see an associate of his family doctor on September 24, 2003. The Disability Certificate² diagnosed Mr. Reid as suffering from a WAD II injury with a cervical spasm/upper thoracic spasm, temporomandibular joint dysfunction and vertigo.

Income Replacement Benefits

According to Mr. Reid, the novel issue before me involves the calculation of income replacement benefits. Mr. Reid submitted that the Schedule is ambiguous when someone who works full-time receives a job offer for a second job to supplement his income.

Mr. Reid was employed in the ski industry at the time of the accident. He worked as a ski patrol manager at Snow Valley, a ski resort. He returned to work after the accident on modified duties. During the off season, he took odd jobs sometimes for cash. He testified that he was offered $1,000 a week to work for Northern Lightning, which supplied playground equipment. As a result of the accident, he submitted that he was unable to take the position at Northern Lightning. Mr. Reid claims income replacement benefits of $400 weekly for 2 years following the accident.

Snow Valley is on 46 acres near Barrie. Mr. Reid started working at Snow Valley in 1997 where he was paid as a full-time seasonal ski patroller. He started living on site at Snow Valley in 2002. Before the accident in 2003, Mr. Reid was the ski patrol manager and a seasonal employee who earned $12 per hour. His unpredictable period of employment with Snow Valley was from April to September/October. He testified that he was working as a full-time year round employee at Snow Valley as of 2003. During the summer of 2003, he was also doing renovation work for someone named Jenn Ellis and helping to construct a new lodge at Snow Valley, where he had a full-time position.

From 2002 to 2003, Mr. Reid testified that he spent 90% of his time on the ski hill. His working hours were often from 7 a.m. to 11 p.m. but his core hours were from 7 a.m. to 4:30 or 5 p.m. His rate of pay was $13.25 an hour at the end of November 2003, which was increased to $14 an hour by the summer of 2004, and $14.46 an hour by November 2004.

Mr. Reid testified that someone named Rob, who was Ms. Ellis’ boyfriend, had seen his renovation work and introduced him to Jameson Johnson, the owner of Northern Lightning Inc., who was putting a crew together to build playgrounds. He was offered a job with Northern Lightning Inc. a week before the accident.

The job offer letter from Northern Lightning Inc. is signed by Jameson Johnson and dated September 10, 2003.³ It offers Mr. Reid a position building playgrounds, including sales of woodchips for these playgrounds. The letter states that Mr. Reid would be required to work Mondays to Fridays from 7:30 a.m. to 5:30 p.m. at an hourly rate of $20.00. On September 29, 2003, a letter from Northern Lightning expressed Mr. Johnson’s regrets about the car accident and informed Mr. Reid that his position could not be held open until he recovered.⁴

According to Mr. Johnson’s testimony, Northern Lightning is a subcontracter of Playcare Corporation, which assigned jobs to it. Playcare builds safe playgrounds for children.

Mr. Reid was confusing when he testified. He appeared to have several different versions of his employment plans. One version was that he had been planning to work full-time at Snow Valley while working at Northern Lightning snow plowing and shoveling from 3 a.m. to 7 a.m. He was planning to work such long hours in order to save money to take a 2-year paramedic training course.

Mr. Reid testified that on September 19, 2003, he was scheduled to take one vacation week from Snow Valley. He was supposedly starting his new job with Northern Lightning on Wednesday, September 24, but had not told his employer, Snow Valley. If this version of his employment plans were correct, Mr. Reid would not have been working at 2 jobs.

Mr. Johnson testified that he is the owner of Northern Lightning, which does construction, snowplowing, storage, salvage and playgrounds. He hired Mr. Reid at $20 per hour and wanted it reflected formally in writing. He offered snow plowing in winter with towing available but Mr. Reid was mainly hired to do playgrounds. He was to plow every night with sanding and salting duties as well. For the winter season of 2003 to 2004, he was to work for the North York School board with 45 to 50 schools from midnight to 6 a.m. or 10 p.m. to 6 a.m.

Mr. Reid accompanied Mr. Johnson one night after the accident for training. He was unable to retrieve the sand from the back of the truck. Mr. Reid testified that tarping a truck was required as part of his job duties, which was impossible for him due to his vertigo and neck and back problems. The worksite assessment by A & A Assessments was done a couple of days after Mr. Reid trained with Mr. Johnson. According to both Mr. Reid and Mr. Johnson, there was more work required than snow plowing and driving. Mr. Reid would have needed to use his back and legs to leap out of the truck and remove the sand. He would also have had to shovel walks.

Mr. Johnson testified that Mr. Reid had worked directly for him in the past and not for Playcare, which was owned by a man named “Roger”. In September, October and November, Northern Lightning starts preparing playgrounds for winter. Wood chips are put down to prevent freezing. The playgrounds are taken down for winter and then put up for the summer. Northern Lightning works 6 nights a week on playgrounds.

Mr. Johnson summarized his company as including the playground work, towing and snow removal. Mr. Reid was first introduced to him in 2001 or 2002. He met him socially and then saw the construction he had done around his friends and family’s homes. He claimed Robbie, Ms. Ellis’ boyfriend, was not his business partner. Rather both he and Robbie are subcontractors for Playcare. He knew Roger from Playcare from 2001-2002 when he was doing the plowing for the North York School Board. He was asked by Roger if he wanted to take over some of his overflow work. Now, he does all of the plowing for the North York School Board. Mr. Johnson did not have a contract with Roger as everything was done on a handshake basis.

On September 23, 2003, Mr. Reid consulted with REC Paralegal.⁵ Mr. Reid returned to work at Snow Valley after his one week vacation. He informed his employers that he was injured and his work duties were modified. He continues to be employed at Snow Valley.

Mr. Reid testified that the job at Northern Lightning was heavier than his job at Snow Valley. He had modified duties when he returned to work at Snow Valley. He stayed at the base, managing the office and doing the paperwork. Previously, he was much more hands-on and did skiing on the hill. Although Mr. Reid still manages the ski patrol, he is seldom on the ski hills. Within 2 years following the accident, he testified that he had returned to his normal duties at work.

Conclusion Re: Income Replacement Benefits

Mr. Reid claimed in his Application for Accident Benefits on September 23, 2003 that he was unemployed and had a written agreement to start work within 1 year.⁶ In his statement dated November 5, 2003, Mr. Reid stated that his employment history included renovating a house for Jenn Ellis, whose boyfriend arranged for him to start work with Playcare on September 24, 2003. He states that he met with someone called “Roger” from Playcare on September 2 and 5, 2003 who would put the job offer in writing. He claimed he would be working in a yard loading trucks with wood chips in a loader which would have to be covered. He stated that he would have worked 40 to 44 hours a week at a location at Highway 9 and Highway 27. In his statement, Mr. Reid described himself as doing odd jobs and working as a self-employed framer. He also stated that he was a ski patrol worker at Snow Valley ski resort during the winter, where he earned $13 an hour for 50 hours a week.

In contrast to his statement, Mr. Reid testified that at the time of the accident, he was a full-time employee of Snow Valley, neither unemployed nor a self-employed framer. He claimed that he was planning to leave his employment at Snow Valley but he had not given his employer any notice. The week following the accident was when he was on 1 weeks’ vacation from Snow Valley. Mr. Reid’s testimony was confusing and simply not believable.

The source of the job offer varied from Mr. Reid’s written statement where he claimed it was from Roger at Playcare while the job offer letter is from Mr. Johnson at Northern Lightning. Neither Mr. Reid nor Mr. Johnson claimed to know Roger’s last name.

The nature of the job offer also kept changing. In his statement, Mr. Reid claimed that he would be loading wood chips at a particular location for 40 to 44 hours a week. In the job offer letter, his job duties are described as building playgrounds, including sales of woodchips for these playgrounds. However, both Mr. Reid and Mr. Johnson testified that Mr. Reid would be primarily plowing snow and sanding playgrounds and surrounding sidewalks. Mr. Reid then testified that although he planned to leave Snow Valley, his leave taking would only be temporary as he planned to return in November for full-time work while snowplowing at night. However, his job offer letter stated that he would be working Monday to Friday from 7:30 a.m. to 5:30 p.m.

Mr. Reid had worked for Snow Valley for 7 years prior to the accident and continues to work full-time for Snow Valley. Even though Mr. Reid claims to be almost completely recovered from the accident, he has done very little, if any, work outside his responsibilities at Snow Valley.

While Mr. Reid talks about the overlap in his jobs, it is not clear exactly what he is saying. He never produced any documents, such as income tax returns, from Snow Valley and no witness.

On March 30, 2004, there is a letter from ING asking for details of Mr. Reid’s employment arrangement, his tax returns, his post-accident income and whether he is self-employed. It is not plausible that both Mr. Johnson and Mr. Reid did not know the surname for Roger from Playcare. It is also not plausible that Mr. Johnson who had lucrative contracts with Roger never captured these arrangements in writing but put a job offer to a friend in writing.

Mr. Reid is not entitled to income replacement benefits from September 26, 2003 to September 25, 2005. The threshold for determining whether the Schedule was drafted to accommodate the calculation of income replacement benefits based on both a full-time job and a job offer has to be the existence of both. Mr. Reid and his witness failed to establish on the balance of probabilities that Mr. Reid had both a full-time job and a job offer. I did not find them credible. Their testimony and the documents filed with me at the hearing were riddled with inconsistencies.

Quantum of Income Replacement Benefits

If I had found that Mr. Reid was entitled to income replacement benefits, the parties disagreed about the method which should be used to calculate the quantum of benefits. However, as I have found that Mr. Reid is not entitled to income replacement benefits, the question of calculating those benefits is moot. In the circumstances, I do not propose to engage in a theoretical calculation of income replacement benefits.

Housekeeping Claim

The receipts for housekeeping total $2,300⁷ and were received by ING on March 19, 2004. ING sent to Mr. Reid an Explanation of Benefits Payable (OCF-9) dated March 31, 2004 refusing to pay the housekeeping benefits. ING refused to pay housekeeping because Mr. Reid declared in his statement dated November 5, 2003: “I have not had to pay any money to anybody for housekeeping. I have a roommate that is helping out a bit more than usual. I can do my own personal care. I have not had anyone come into my home to perform assessments. I have not had any assessments only the actual therapy.”⁸

Mr. Reid argued that very little weight should be placed on his statement because he was on medication suffering from headaches, dizziness and vertigo. However, Dr. David Bereznick’s DAC assessment report, dated July 15, 2004, notes that Mr. Reid claimed that although he was given prescriptions for medication after the accident, he did not have them filled because he did not have the money. He also stated later in the interview that he was taking no medication and did not take medication with respect to the accident.

Mr. Reid rents a house from the ski resort which he shares with a roommate. He testified that he did the interior work and his roommate did the exterior. Mr. Reid testified that from September 19, 2003 to February 27, 2004, Ms. Ellis did his housekeeping, which included vacuuming, cleaning, laundry, mopping and making beds as he could not bend due to vertigo which made him dizzy and nauseous.

Mr. Reid testified that he met with someone in his home for an assessment, although he had denied in his statement of November 5, 2003 that he had any assessments. The assessment by A & A Assessments, of which Ms. Ellis was a director, concluded that he was not able to sweep, vacuum or make beds. Ms. Ellis wrote down her hours and filled out invoices for housekeeping. However, no receipts or documents for housekeeping were given to ING until 2004.

Conclusion Re: Housekeeping Benefits

Mr. Reid is not entitled to housekeeping benefits. I find that his application for housekeeping benefits was properly denied by ING on March 31, 2004. Although Mr. Reid filed a Statement of Claim dated November 12, 2004 claiming, amongst other things, $2,300 in housekeeping benefits⁹, that action was dismissed as abandoned on June 29, 2005 and costs were awarded against Mr. Reid on May 18, 2006. Although Mr. Reid filed an Application for Arbitration dated December 12, 2005, housekeeping benefits did not form part of the application. On July 27, 2006, a pre-hearing discussion was held and housekeeping benefits were not included as part of Mr. Reid’s claim. It was not until the first day of the hearing on August 13, 2007 that Mr. Reid’s claim for housekeeping benefits was added with ING’s consent. Whether one considers the date of denial as March 31, 2004 or June 29, 2005, when Mr. Reid’s court action was dismissed as abandoned, more than 2 years elapsed. Therefore, Mr. Reid’s housekeeping claim falls outside the 2-year limitation period found in section 281(5) of the Insurance Act.

If for some reason I am incorrect about the limitation period, Mr. Reid is not entitled to housekeeping benefits on a number of other grounds. There are fatal inconsistencies between Mr. Reid’s original statement and his testimony at the hearing. I did not find Mr. Reid’s testimony to be credible about the housekeeping he alleged was performed by Ms. Ellis. Unfortunately, Ms. Ellis was not called as a witness.

Mr. Reid claimed in his statement that the home and worksite assessment were not done. ING had no knowledge of these assessments until they were received with a bundle of materials, including 2 letters from the purported employer, on March 19, 2004. The adjuster forwarded to Mr. Reid a letter on March 8, 2004 as no claims had been submitted by him. Mr. Reid then applied for mediation on March 11, 2004 without submitting any of his documents and claims.

There was a denial of housekeeping benefits by way of an OCF-9 on March 31, 2004. I find that these denials were proper.

I was also not persuaded that Mr. Reid was disabled from housekeeping. He was working full-time as a ski patrol manager and had little housekeeping to do. I was not persuaded that he was incapable of doing his own housekeeping or rather, his share of the housekeeping as he had a roommate.

Medical Benefits

Mr. Reid was assessed by Dr. Steven Simone, a chiropractor at Gateway Rehabilitation and Health Institute (Gateway), on September 23, 2003. Dr. Simone’s diagnosis was a WAD II cervical sprain/strain and lower back sprain/strain. Mr. Reid is seeking payment of 2 amounts for medical benefits resulting from Dr. Simone’s treatment plans. The amounts claimed are $760 and $3,038.83.

The first medical benefit claimed is $760 under a treatment plan dated September 24, 2003.¹⁰ Dr. Simone claimed $880 for massage therapy and $2,940 for chiropractic, active treatment, and passive modalities. Both treatment plans total $3,820. According to Mr. Reid, $3,060 was approved by ING which leaves $760 owing as there was no proper denial.

ING submits that all invoices submitted by Dr. Simone were paid.¹¹ Only seven treatments totalling $2,484.78 were invoiced by Dr. Simone.¹²

The second medical benefit claimed is $3,038.83 under at treatment plan dated April 28, 2004.¹³ Dr. Simone recommended a work hardening program.

Mr. Reid testified that he had headaches and low back pain. In the couple of months prior to the hearing, he testified that he had no headaches and his low back pain was almost gone. Dr. Simone’s treatment, he testified, helped him to become more functional, particularly the strengthening exercises and work conditioning. However, he was vague about the duration, nature and benefit of the treatments, particularly the work hardening program.

Dr. Bereznick, chiropractor, testified on behalf of ING. He has a doctorate in kinesiology (biomechanics) with postgraduate training in acupuncture. He was an assistant professor at Canadian Memorial Chiropractic College. He was asked to do an assessment of Mr. Reid on July 8, 2004.

Dr. Bereznick was qualified as an expert in chiropractic. ING had requested that he provide an assessment of Mr. Reid and whether Dr. Simone’s proposed treatment plan was reasonable or necessary. Dr. Bereznick’s report contains the history taking and the physical examination of Mr. Reid.¹⁴ Dr. Bereznick concluded that the treatment plan was not reasonable and necessary.

Mr. Reid was diagnosed with a WAD II injury requiring a series of treatments for 6 weeks. Dr. Bereznick agreed with this diagnosis and found that Mr. Reid had no ligamentous injuries. Dr. Bereznick confirmed with Mr. Reid that he had missed no work at Snow Valley. Mr. Reid explained that he had modified duties until the end of April 2004 when he returned to his regular duties.

Mr. Reid described his symptoms to Dr. Bereznick but concluded that he was 85 to 90% recovered. He had minor low back pain “just a little bit”. He also had a headache once every 2 weeks with some dizziness and no vomiting or double vision. Dr. Bereznick recommended that Mr. Reid follow up with his family physician with respect to his headaches. He found “no hint of injury.”

Dr. Bereznick testified that he found no extenuating circumstances to assess Mr. Reid as other than suffering from some initial soft tissue injuries consistent with a WAD II injury. Mr. Reid seemed to be back to his pre-accident physical functions, even according to Mr. Reid himself, by the end of April 2004. The physical examination was unremarkable and revealed no evidence of injury. Mr. Reid told Dr. Bereznick that he returned to Dr. Simone at the end of April 2004 and started a work conditioning program at 2 times per week for a total of 2 weeks. He did not complete the program of 18 sessions. Dr. Bereznick testified that he always asks claimants if they want further care since a treatment plan is an issue of functional restoration. He stated that Mr. Reid told him that he did not want more treatment.

Conclusion Re: Medical Benefits

Unfortunately, Dr. Simone did not appear as a witness to testify about any accounting discrepancies related to the first treatment plan. From the evidence before me, it appears that ING paid all invoices submitted by Dr. Simone related to the first treatment plan, which was approved by ING.

With respect to the second treatment plan, I found Dr. Bereznick’s report and testimony persuasive. Dr. Bereznick found that the treatment plans dated September 24, 2003 provided sufficient therapy for Dr. Reid to attain maximum therapeutic benefit. Unfortunately, Dr. Simone did not appear to testify in defence of his second treatment plan recommending a work hardening program, 7 months after the accident when Mr. Reid had not missed any time at work at Snow Valley.

I disagree with Mr. Reid’s argument that his medical benefits were not denied properly and that Dr. Bereznick was not an impartial witness and lacked crucial information. The denial from ING was 15 pages long together with an OCF-9. While Dr. Bereznick had not reviewed Mr. Reid’s spinal x-ray before he wrote his report, he testified at the hearing that the x-ray would not have changed his conclusions about treatment.

For the reasons outline above, I find that Mr. Reid is not entitled to the medical benefits claimed.

Special Award

Mr. Reid raised the issue of a special award with respect to his claims for the first time at the hearing with no prior notice to ING. I have not found in his favour with respect to his claims. Further, it does not appear that ING was delinquent in dealing with his claims or indeed, treated them without due care and attention. Quite the contrary, ING’s brief provides evidence that each claim was dealt with properly. There appears to have been a long history on ING’s part of requesting further information and supporting documents with no disclosure from Mr. Reid’s earlier representatives. From November 5, 2003 to March 8, 2004, there was no communication from Mr. Reid with ING. I find that Mr. Reid is not entitled to a special award.

EXPENSES:

The parties made no submissions with respect to expenses. If they are unable to resolve this issue, they may apply for an expense hearing before me pursuant to the Dispute Resolution Practice Code.

November 29, 2007

Judith Killoran

Arbitrator

Date