Shamraaj Thavagnanathiruchelvam v. ACE INA Insurance, 2007 ONFSCDRS 252

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 252

FSCO A14-006191

BETWEEN:

SHAMRAAJ THAVAGNANATHIRUCHELVAM

Applicant

and

ACE INA INSURANCE

Respondent

REASONS FOR DECISION

Before: Arbitrator Barry S. Arbus, Q.C.

Heard: In person on October 3, 4, 6 and 25, 2017

and by written submissions completed on October 25, 2017

Appearances: Ms. Faranz Siganporia, counsel for the Applicant

Ms. Tamara Tomomitsu and Mr. John Hunter, Counsel for the Insurer

ISSUES

The Applicant (Shamraaj Thavagnanathiruchelvam) was involved in a motor vehicle accident which occurred on April 17, 2011 (the “2011 Accident”). The Applicant applied for and received statutory accident benefits from the Insurer payable under the Statutory Accident Benefits Schedule, (the “Schedule”)¹. The parties were unable to resolve their disputes through mediation and the Applicant, through his representative, 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 the Applicant entitled to Non-Earner Benefits from October 17, 2011 to date and ongoing?
Is the Applicant entitled to receive $226.04, the cost of an orthopaedic assessment by Rehabilitative Ergonomics dated April 15, 2013?
Is the Applicant entitled to receive $904.00 for a physiotherapy assessment by Rehabilitative Ergonomics dated February 21, 2013?
Is the Applicant entitled to receive $380.36 for the costs of transportation to the physiotherapy and orthopaedic assessment conducted by Rehabilitative Ergonomics?
Is the Applicant entitled to claim for a Special Award?
Is either party entitled to its expenses of the arbitration?

RESULT

The Applicant is not entitled to receive Non-Earner Benefits from October 17, 2011 to date and ongoing.
The Applicant is not entitled to receive $226.04 for the cost of an orthopaedic assessment by Rehabilitative Ergonomics dated April 15, 2013.
The Applicant is not entitled to receive $904.00 for the cost of a physiotherapy assessment by Rehabilitative Ergonomics dated February 21, 2013.
The Applicant is not entitled to receive $380.36 for transportation expenses incurred in travelling to Rehabilitative Ergonomics.
The Applicant is not entitled to a Claim for Special Award.
If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE & ANALYSIS

BACKGROUND

On April 17, 2011, the Applicant was a pedestrian in a private parking lot in a plaza on Lawrence Avenue West in Toronto. The accident in question occurred while the Applicant was walking through the parking lot and was struck by a Police vehicle. Shortly before the accident, the Police records show that the Applicant was involved in a fight where the Applicant reported that he had been assaulted by four individuals and admitted that he had been drinking. The hospital records identified the Applicant’s blood alcohol level as “potentially toxic”.

On May 16, 2010, the Applicant had been involved in a prior motor vehicle accident (the “2010 Accident”) for which he also received accident benefits and received treatment for physical and psychological issues.

The Applicant claims that as a result of the 2011 Accident, he has had ongoing complaints of memory loss, headaches, forgetfulness, neck pain, back pain, shoulder pain, depression and generalized weakness, left leg pain and sleeping problems where he wakes up frequently and finds it difficult to fall back to sleep. The Applicant claims that he has tried his best to return to work, but has been unable to maintain gainful employment due to his injuries, has been unable to carry on the demands of daily life, and accordingly is entitled to Non-Earner Benefits from October 17, 2011 onwards to date, together with the medical rehabilitation benefits claimed.

The Applicant’s Position

The Applicant was born in Sri Lanka, came to Canada when he was 8 years old, lived in Montreal, completed Grade 10, subsequently moved to Toronto. He started working at the age of 18 and was 21 years of age at the time of the April 2011 accident. He acknowledges there was a 2010 Accident but has no memory of the accident, nor does he have any memory of the 2011 Accident. He did acknowledge that prior to the 2011 Accident he had stopped working because of the pain he was suffering from the 2010 Accident. He also states that he has had difficulty in his relationships with people, suffering from mood swings, depression, anxiety and has moved homes many times. He acknowledged that he lived with his uncle but following the 2011 Accident, his uncle insisted he move out because of the difficulty he was creating with his interpersonal relationships. The Applicant stated that as a result of the 2011 Accident, he suffered from a concussion, memory loss, depression, anxiety, chronic pain, loss of sleep and pain in his back, neck and left leg. He also felt that none of the problems he suffered existed before the 2011 Accident. He did acknowledge that although he attempted to work after each of his accidents, he was unable to maintain any jobs because of his poor attendance record resulting from the pain that he suffered. He also maintained that with respect to household tasks and chores prior to the 2011 Accident, he was able to assist but after the accident, he was unable to participate in household tasks and chores resulting in his uncle and aunt forcing him to move out of their home.

In his social life and family relationships, he stated that before the accident, he had an active social life, maintained good relationships with people but the 2011 Accident changed him and he is not the same person and was unable to participate with family, friends in soccer and skating, all of which he participated in before.

Dr. Romeo Vitelli, the Applicant’s witness, provided a neurological assessment for the Applicant on February 13, 2017. He opined that the Applicant was incapable of carrying on with the demands of daily living.

The Insurer’s Position

The Insurer takes the position that the onus clearly rests on the Applicant to establish and validate his claim for Non-Earner Benefits and the medical treatment plans in dispute. The Insurer states that the Applicant has failed to provide any expert evidence substantiating the Applicant’s claim for an impairment caused as a result of the 2011 Accident. The Insurer argues that the Applicant has a longstanding history of behavioural difficulties going back to an arrest in November 2006. In addition, less than one year prior to the 2011 Accident, the Applicant received benefits for physical and psychological issues from the 2010 Accident. The Insurer in its evidence produced confirmation that between June 2010 and the time of the 2011 Accident, the Applicant had complained of headaches, neck pain, lower back pain, all related to the 2010 Accident. His treating chiropractor, in March 2011, opined that the Applicant was unable to return to work and was substantially disabled from performing his pre-accident housekeeping and home duties which he performed prior to the 2010 Accident. In addition, at the time of his admission to the hospital on April 17, 2011, the records show that the Applicant had been assaulted by four individuals, he reported being assaulted with a pool cue, punched in the face and had neck pain, and there is no mention of the motor vehicle accident or loss of consciousness at that point. The Insurer maintains that there is no evidence of a head injury being caused as a result of the motor vehicle accident but rather any physical injuries, if any, were caused as a result of the fight.

The Insurer also argues that Dr. Vitelli, the Applicant’s neuropsychologist, admitted during cross-examination that there were key assessment reports and medical records which he had not been aware of or in possession of prior to his assessing the Applicant, and his being made aware of this information would possibly have altered his report. Dr. Vitelli indicated that if he had been apprised that the Applicant had been suffering from chronic pain and related sleep disorder from the 2010 accident, he possibly would have changed his diagnosis.

The Insurer also relied on the evidence of Dr. Jeremy Frank and Dr. Julian Mathoo, a psychologist and physiatrist, both of whom felt that the Applicant’s impairment would likely not have been caused by the 2011 Accident and, as Dr. Vitelli acknowledged, that the Applicant’s injuries and pain had been ongoing from the 2010 Accident.

The Insurer further points out that although the Applicant testified that his life had “completely” changed as a result of the 2011 Accident, there is no evidence presented by him corroborating this suggestion.

Analysis and The Law

Non-Earner Benefits

The relevant sections of the Applicable legislation are Section 3(7)(a) and Section 12(1) of the Schedule which is set out below:

“3(7)(a) a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident;”

“12(1) the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.”

In order to be successful in this case, the Applicant must establish that as a result of the accident, the Applicant sustained an impairment that continuously prevents them from engaging in substantially all of the activities which the person ordinarily engaged in before the accident. Once the Applicant established that, he must also establish that within 104 weeks after the accident, he has suffered a complete inability to carry on a normal life and they do not qualify for income replacement benefits.

The Insurer submits that the Applicant has failed to provide any expert opinion that he has suffered an impairment as a result of the 2011 Accident. I agree with this opinion. The Applicant has a longstanding history of behavioural difficulties going back to 2006. In addition, the evidence emanating from the 2010 Accident demonstrates that the Applicant suffered physical and psychological trauma at that time. His medical records prior to the 2011 Accident demonstrated mixed anxiety and depressive disorder as well. The Police records and hospital records and ambulance call report at the time of the accident also show that, in addition to the accident, the Applicant was involved in a serious fight immediately prior to the incident in question. I am satisfied that there is no evidence before us to support the Applicant’s claim that he suffered a head injury as a result of the motor vehicle accident, none of which is sufficient to satisfy me as to the 2011 Accident being the cause of the Applicant’s impairment.

Second, in determining whether or not there has been a complete inability of the Applicant to carry on a normal life, I must examine the activities that the person ordinarily engaged in before the accident. To meet this test, we must see a qualitative deterioration in the comparison of the activities and life circumstances of the Applicant before the accident to those post-accident. To satisfy this test, the Applicant must establish that the changes amount to him being prevented from engaging in substantially all of his pre-accident activities. Although the Applicant testified that his life has completely changed as a result of the 2011 Accident, we have little or no evidence offered to clarify what these changes were, nor did we receive any corroborating evidence to support his statement.

Section 12 of the Schedule requires that the insured person demonstrate a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. I am not satisfied that the Applicant has satisfied the onus on him to establish that he has suffered this complete inability to carry on a normal life within the 104 week period.

With respect to the medical treatment plans and the costs of transportation claimed, there does not appear to be any treatment plans filed in evidence, nor did any of the providers of these treatments provide evidence. I have no evidence to support the reasonableness and necessities of the assessment and transportation costs in question. In addition, there has been no evidence introduced before me that the amounts in question were actually incurred.

CONCLUSION

Although I have sympathy for the Applicant and the circumstances in which he has found himself, I am satisfied that he has failed to meet the tests required, either with respect to establishing a claim for Non-Earner Benefits or with respect to his claims for the treatment plans in question. Similarly, because the Applicant was not successful with respect to a claim for either Non-Earner Benefits or with respect to the claim for the treatment plans in question, I find that in the absence of finding any benefits payable to the Applicant, there are no benefits which have been unreasonably withheld and accordingly no Special Award may be awarded. Because I have not found the Applicant entitled to any benefits, the claim for Special Award is dismissed.

EXPENSES

If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, they may schedule an Expense Hearing before me according to the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

December 18, 2017

Barry S. Arbus, Q.C.

Arbitrator

Date