Deborah Turner v. State Farm Mutual Automobile Insurance Company, 2008 ONFSCDRS 126

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 126

Appeal P06-00025

Appellant

and

Respondent

BEFORE:

David Evans

David S. Wilson for Ms. Turner

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

August 3, 2007

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal from the arbitrator’s order dated June 16, 2006 is dismissed.
If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 24, 2008

David Evans Director’s Delegate

Date

I. NATURE OF THE APPEAL

Ms. Deborah Turner appeals the arbitrator’s order that she is not entitled to rehabilitation and care services benefits claimed from State Farm Mutual Automobile Insurance Company (State Farm) under the SABS–1990.¹

II. BACKGROUND

Ms. Turner was injured in a motor vehicle accident on June 16, 1993. She applied for and received certain statutory accident benefits from State Farm that were later terminated. She applied out of time for arbitration of most of her claims, as ultimately found by the Court of Appeal in Turner v. State Farm Mutual Automobile Insurance Co., 2005 CarswellOnt 381.² She was allowed to proceed to arbitration on her claim for the rehabilitation services of Therapeutic Rehabilitation Services Inc. (“TRSI”), the parties agreed to add a claim for care services to be rendered by Rehabilitation Management Inc. (“RMI”), and Ms. Turner also sought the cost of attendant care services rendered by Ag Ta Home Health Care and Nursing Inc. (“Ag Ta”).

However, the arbitrator found she was not required to decide whether the rehabilitation and care benefits were reasonable and necessary for Ms. Turner’s treatment. That is because Ms. Turner did not persuade her that the physical, cognitive and psychological conditions for which she claimed rehabilitation and care services were caused or contributed to by her motor vehicle accident. Accordingly, I will deal with the claims only to the extent necessary to consider the arbitrator’s conclusion regarding causation.

The arbitrator noted that Ms. Turner’s medical evidence revealed “a complex and very unfortunate picture of physical, cognitive and psychological conditions. She has undergone many years of assessments, medical and rehabilitation treatment and personal care services. There is no dispute that the Applicant’s health has continued to decline over the nearly 13 years since the accident. Assessors retained by both parties have been in agreement that the Applicant suffers from pronounced and persistent physical, cognitive and psychological problems.”

With respect to Ms. Turner’s pre-accident life, the arbitrator noted that she received little evidence other than a few undisputed facts, such as that Ms. Turner was 37 at the time of the accident, had taught, supervised and coached various sports, had worked in shoe sales, and two or three years before the accident began working as a cashier and salesperson for Canadian Tire. She also stated that she received little information on Ms. Turner’s pre-accident health, noting scattered references in the medical reports to various pre-accident injuries, including a work-related back injury at Canadian Tire in the months before the accident. However, no employment dossier from Canadian Tire or documentation of a possible Workers’ Safety and Insurance Board claim was filed. Ms. Turner’s Canada Pension Plan medical records were also not filed, although she had been receiving disability benefits for some years before the arbitration hearing. The arbitrator did not find Ms. Turner’s uncorroborated testimony about her pre-accident health reliable, and she also had concerns about Ms. Turner’s credibility as she heard no explanation why she did not call oral or written evidence to support her account of her pre-accident health.

With respect to the accident, Ms. Turner stated at the arbitration hearing that she was on her way to Women’s College Hospital for an appointment with her family doctor, Dr. Randall Lee, whom she first began to see some months before the accident. She stated that her boyfriend came to the accident scene and took her to the appointment with Dr. Lee, but she did not recall how she got there. She ceased seeing Dr. Lee shortly after the accident.

As discussed below, the arbitrator noted that assessors retained by both Ms. Turner and State Farm expressed concerns about not having a documented medical history, particularly the medical records of Dr. Lee. Instead, it was Dr. Peter Dux, Ms. Turner’s post-accident family doctor, who recommended a number of treatments. For instance, MEDEX Vocational Management Group was asked by State Farm with Dr. Dux’s support to perform a vocational evaluation and to assist with Ms. Turner’s rehabilitation from October 1994 until March 1995.

Ms. Turner alleged that she hit her head in the accident, leaving a red welt. Many of the diagnoses of Ms. Turner’s post-accident conditions assumed this occurred. However, the arbitrator noted that the Women’s College Hospital Urgent Care Centre Report dated June 16, 1993, recorded a question mark beside the words “hit head” and noted no loss of consciousness, and that neither Dr. Lee nor Dr. Ernest Perry, her pre-accident chiropractor, recorded any red welt. (Dr. Perry provided post-accident treatment only from June to September 1993.) The arbitrator did not find pictures taken shortly after the accident helpful in determining if there was a head injury. The arbitrator therefore did not find Ms. Turner’s uncorroborated evidence about hitting her head reliable.

With respect to her post-accident life, Ms. Turner claimed the cost of reports, meetings and other hours expended in relation to rehabilitation recommendations from TRSI. As for care services, Ms. Turner testified that relatives and friends assisted her in the first few years with household tasks until 1999 when Bellwoods Centres for Community Living Inc. (“Bellwoods”) and Toronto Community Care Access Centre (“CCAC”) began to provide a total of 28.5 hours of government-funded care services. She asserted that she required the services recommended by RMI to fill in the gaps of chores that do not get done. Ms. Turner also sought the cost of attendant care services rendered by Ag Ta for assisting her with moving from her apartment to a new residence. However, the arbitrator noted that Ms. Turner called no independent evidence to substantiate her post-accident disabilities, such as her inability to work, participate in sports or perform her household chores, although the arbitrator noted that she could have done so. Moreover, because of Ms. Turner’s memory problems, the arbitrator did not find her evidence about her post-accident life reliable, which then raised a credibility issue for the arbitrator as she did not explain the lack of supporting evidence.

The arbitrator noted that the lack of pre-accident medical records available to the assessors required them to rely on Ms. Turner’s self-report, as in the following examples:

Dr. Raphael Chow, physical and rehabilitation medicine specialist, who initially saw Ms. Turner on July 22, 1993, at Dr. Dux’s request.
The Rothbart Pain Management Clinic (“Rothbart”), which provided treatment from April 26, 1995 at the recommendation of Dr. Dux.
The Accident Management Group, which was retained by State Farm in early 1994 to assess Ms. Turner’s disability. The arbitrator noted that AMG accepted that the accident caused Ms. Turner’s complaints based solely on her account of an unremarkable pre-accident medical history.
Dr. Marek J. Gawel, neurologist, who conducted a neurological assessment on November 20, 1993, and saw Ms. Turner again in 1996, 2002 and 2003.

In addition, the arbitrator found that some of the reports were not helpful regarding causation or the determination of a diagnosis:

Dr. Leon Steiner, registered psychologist, conducted a psychological assessment at Dr. Dux’s request and also treated Ms. Turner, but the arbitrator noted that the report did not offer a clear opinion on causation.
Dr. Peter Rowsell, psychiatrist with Rothbart, whose report dated September 22, 2003, concluded that Ms. Turner’s physical conditions resulted from the accident but, as the arbitrator noted, gave no opinion on the cause of her cognitive and emotional problems.
Dr. Allyson Harrison, psychologist with Health Recovery Group, whose report dated July 29, 1996, provided no opinion as to the role, if any, that the accident might have had in Ms. Turner’s clinical picture, according to the arbitrator.
Dr. M. Mamelak, a psychiatrist, completed a psychiatric assessment of Ms. Turner conducted on May 27, 1996, with a follow-up requested by her current counsel dated August 2, 2005. The arbitrator concluded, with respect to Dr. Mamelak’s opinion that Ms. Turner’s accident had had a devastating effect on her life: “I did not find that opinion of much assistance on the causation issue because it does not directly speak to the impact of the accident on the Applicant’s health.”

The arbitrator also had before her several insurer reports that uncovered no causal link between Ms. Turner’s condition and the accident:

The occupational medicine report dated August 21, 1996, by Dr. C. J. Potyrak, occupational medicine physician with AssessMed.
The reports dated July 2, 1996, and October 20, 2005, by Dr. A. I. Margulies, psychiatrist.
The report dated December 18, 1997, by Dr. W. Gary Snow, psychologist, prepared for the insurer in the companion tort action.
The report dated April 24, 1996, by Dr. Henry Berry, psychologist.

In the result, the arbitrator found that she could not determine which, if any, of Ms. Turner’s disabilities were contributed to by the accident. She found that Ms. Turner therefore failed to establish a material contribution by the accident to her disabilities, and so she dismissed the claims on that basis.

III. ANALYSIS

Ms. Turner’s submissions can be summarized as follows: The insurer medical examinations should not have been admitted because they were improperly obtained. In any event, the arbitrator should not have admitted them because the insurer did not cross-examine any of Ms. Turner’s assessors. In the absence of that cross-examination, the arbitrator should have simply considered whether her evidence was inherently improbable and on its face unworthy of belief. Since the arbitrator did not do so, she therefore erred in her assessment of the burden of proof. And, absent that error, the arbitrator would have found that the accident materially contributed to Ms. Turner’s post-accident condition.

With respect to the first point, the SABS–1990 did not provide for insurer medical examinations with respect to medical, rehabilitation and care benefits, the benefits at issue here. Ms. Turner submitted that the reports of Dr. Berry, Dr. Margulies, and Dr. Potyrak, as well as Dr. Ezra Silverstein’s orthopaedic report dated January 18, 1994, should have been excluded as they related to those benefits. Furthermore, they were used for a different purpose than initially.

The arbitrator first noted that, since the insurer’s reports had long been part of the medical record, many of Ms. Turner’s reports could only be understood with reference to them. Ms. Turner submitted that the arbitrator did not identify any of the reports that she intended to include in this reference. However, the arbitrator’s decision is about 40 pages long, and she was not required to list every piece of evidence she relied on. In any event, I note for instance that Dr. Mamelak’s report of August 20, 1996 discusses the reports of Dr. Silverstein and Dr. Berry, among others.

The arbitrator accepted that the insurer’s examinations in question were generated for a purpose not contemplated by the SABS in place at the time. However, she did not find the assessments inadmissible for that reason because they were not privileged and were highly relevant. Ms. Turner submits that the arbitrator should have focused on consumer protection and fairness to the insured and recognized that the reports were simply bolstering the insurer’s case. However, arbitrators have a great deal of discretion on what evidence to admit. I am also not persuaded that there was or is any blanket prohibition to the admission of the reports. Accordingly, I am not persuaded that the arbitrator erred in admitting them.

For similar reasons, the arbitrator admitted a report dated December 18, 1997, by Dr. W. Gary Snow, a psychologist, retained by the insurer in a related tort action. I am not persuaded that was an error, either.

I will now turn to the issue of the insurer’s failure to cross-examine Ms. Turner’s experts. I will quote what the arbitrator said on that point:

Further, I do not accept the Applicant’s counsel’s argument that I should draw an adverse inference – from State Farm’s failure to call the Applicant’s expert witness for cross-examination – that State Farm would not be successful in challenging the opinions in those reports; and for this reason, according to that argument, State Farm should not be allowed to put the opinions in question into evidence. I agree with State Farm’s position that the Applicant’s counsel has misapplied the adverse inference rule. As State Farm’s counsel submitted, the purpose of the rule is to preclude a party that chooses not to call evidence from saying that it would have helped that party’s case. The rule does not extend to barring a party from calling their own expert opinion evidence if that party chooses not to cross-examine the experts of the opposing party. Applying adverse inference in the way suggested by the Applicant, I find, would run counter to the adversarial process where parties are permitted, within evidentiary and procedural rules, to call the witnesses they feel will best support their case. It is clear, as State Farm’s counsel submitted, that requiring the parties to cross-examine expert witnesses with adverse opinions in order to avoid an adverse interest being drawn, would unnecessarily lengthen and complicate arbitration proceedings and negate the Commission’s goal of being a more expeditious alternative to the courts. The Applicant’s counsel’s submission is also contrary to Rule 42.4 of the [Dispute Resolution Practice] Code which limits the parties to calling two expert witnesses each at the hearing.

I will deal with the last point first. Ms. Turner submits that Rule 42.4 does not apply to calling a witness for cross-examination. I am not aware of any case that speaks directly to that point. There is relatively little case law on Rule 42.4. In Esterreicher v. Non-Marine Underwriters, Members of Lloyd’s, (FSCO A04-001750, October 28, 2005), the arbitrator analyzed when to allow more than two expert witnesses, but not this issue. In any event, the spirit of Rule 42.4 would be breached if the insurer had to cross-examine an applicant’s experts if it wished to rely on its own experts, as it would considerably lengthen the hearing, a point I will return to.

Ms. Turner submits that in the passage quoted the arbitrator misunderstood the adverse inference rule. However, on appeal, Ms. Turner states that, where evidence is not inherently improbable, the failure to cross examine invites its acceptance. I find that indeed analogous to making an adverse inference. To support her position, Ms. Turner relies on one comment by one judge in one case that has been relied on by one arbitrator. In Biss v. Van Egmond, 2004 CanLII 48876 (ON SC), [2004] O.J. No. 5200, a motion to set aside a default judgment, Quinn J. stated: “Although a court is not obliged to accept uncontradicted sworn evidence (whether given orally or by affidavit), where that evidence is not inherently improbable the failure to cross-examine invites its acceptance.”

This passage from Biss was cited in Nguyen and State Farm Mutual Automobile Insurance Company, (FSCO A05–000305, December 22, 2005). This was a motion under s. 279(4.1) of the Insurance Act for interim benefits. The arbitrator found that the existing case law on interim benefits developed at the Commission – which is already divided on whether interim benefits should be granted based on a prima facie or some higher standard – is incorrect because the use of the prima facie test is unjustified. For our purposes, what is relevant is how the arbitrator in Nguyen considered the applicant’s statutory declaration in support of his interim benefits claim. The arbitrator did not find the statement “inherently improbable” and did not find that the insurer had properly put the contradictory material to the applicant, so he accepted it as some credible evidence of entitlement. While that arbitrator continues to apply the Nguyen approach,³ I am not aware of it being followed by other arbitrators.⁴ In any event, I am not persuaded that this approach applies to hearings on the merits.

Furthermore, the proposition advanced that evidence that has not been cross-examined on has to be accepted if it is not inherently improbable is apparently wrong as black-letter law. As the Canadian Encylopedic Digest on Evidence at §361 states: “The consequences, if any, of failing to cross-examine an opponent’s witness are uncertain. The party who should have cross-examined may lead evidence on the very topics on which he failed to cross-examine. Also, an inference that he necessarily accepts the truthfulness of the opposing testimony may not be drawn from the party’s failure to cross-examine. A failure to cross-examine does not necessarily give rise to an inference that the party sees no contradiction or inconsistency in the testimony.” [Footnotes omitted.]

I also agree with the statement from Thiyagarajah and ING Insurance Company of Canada, (FSCO A05–001520, October 26, 2006) that “Biss is support only for the proposition that failure to cross-examine on a sworn affidavit, ‘invites’ its acceptance. In any event, to accept the proposition advanced by the Applicant would merely force parties in every proceeding before this Commission to require the author of every report it did not agree with, to attend for cross-examination. That, by itself, would defeat any possibility of this Commission being cost and time efficient.”

Accordingly, I find the arbitrator did not err in considering the insurer’s medical reports despite the lack of cross-examination of Ms. Turner’s experts. I also reject Ms. Turner’s submission that in the absence of that cross-examination her medical reports could not be shown to be inherently improbable or incapable of belief, and the arbitrator should therefore have accepted them. I find that this is not the standard the arbitrator was required to apply. Instead, the burden of proof rested on Ms. Turner, regardless of whether or not the insurer cross-examined the experts who prepared reports on her behalf.

This leads me to the submissions by Ms. Turner on the burden of proof. These reflect not only the erroneous proposition just discussed but also the logical error of assuming that, since B followed A, then A caused B: that is, since Ms. Turner deteriorated after the accident, then the accident must have caused her deterioration.

These errors are exemplified in Ms. Turner’s submission that the onus was on State Farm to show that her post-accident disability was due to some pre-existing condition. In that regard, she relies on this statement in the arbitration expenses decision K and Liberty Insurance Company of Canada, (FSCO A02–000780, August 30, 2005): “Liberty relied on Mr. K’s pre-existing medical condition and therefore it had the onus to establish that any post-accident disability was due to that condition.” Ms. Turner submits that the arbitrator in this case made no reference to that issue and that, relying on the appeal decision of TTC Insurance Company Limited and Kanareitsev, (FSCO P05–00021, November 2, 2006), she was required to provide a properly considered decision with respect to this issue. In the same vein, Ms. Turner submits that the arbitrator failed to consider that once she had put forth sufficient evidence with respect to causation, it was up to the insurer to establish that the accident had not materially contributed to her impairments. However, the arbitrator did not even arrive at finding that Ms. Turner had prima facie been disabled as a result of the accident, so the onus had not shifted and the arbitrator’s reasons were not inadequate.

The mention of Kanareitsev brings me to another faulty aspect of Ms. Turner’s submissions on burden of proof and material contribution. Although the essential point of the appeal delegate’s decision in Kanareitsev – that a party is entitled to a reasoned decision – stands, the Divisional Court in Kanareitsev v. TTC Insurance Co., 2008 CanLII 26262 (ON SCDC), [2008] O.J. No. 2132 found the delegate’s application of the principle too strict. As noted by the court at para. 28, the factors to be considered in determining the adequacy of reasons include the decision-maker setting out its findings of fact and the principal evidence upon which those findings were based: “The reasons must address the major points in issue; it is insufficient for the decision-maker to summarize the parties’ positions and ‘baldly state its conclusions’; and the reasoning process followed must be set out and reflect consideration of the main relevant factors.” However, where the credibility and reliability of the evidence is in issue, the arbitrator is charged with the responsibility of determining these issues. Essentially, in her submissions on burden of proof and material contribution, Ms. Turner seeks for me to assume that responsibility, which is not my role. What matters is that the arbitrator’s reasons refer to the principal evidence she relied upon and provide a justification for her conclusions.

I will now turn to the heart of the arbitrator’s decision, where she found that, without a pre-accident medical baseline to compare to Ms. Turner’s post-accident physical, psychological and cognitive status, and without evidence corroborating her description of her pre-accident life, she could not determine if the accident contributed to any disabilities.

Ms. Turner submits that the arbitrator failed to refer to evidence substantiating her pre-accident health, such as income tax returns and employment documentation, and that the only reasonable inference that could be drawn from the employment records was that she was reasonably functioning up to the time of the accident. However, the arbitrator justified her concerns about the evidence and, as set out below, reasonably drew inferences.

For example, the arbitrator found it problematic that the Applicant called no witnesses, such as friends, past co-workers, her ex-boyfriend, or any of her family members who helped her after the accident, to substantiate the differences the accident made to her life. The arbitrator found unhelpful brief letters from past co-workers in the absence of their being called as witnesses, and she noted that Ms. Turner “did not call any contemporaneous evidence – her care providers from Bellwoods, CCAC or Ag Ta – to testify about her post-accident abilities.” Accordingly, she drew the reasonable adverse inference that, more likely than not, they would not have been able to support her evidence in this area.

Ms. Turner submits that the arbitrator erred in not acknowledging that the insurer should have called the witnesses and that she apparently gave less weight to written than oral evidence. However, this submission is based on the error discussed above regarding the onus of proof. Weighing the evidence was the arbitrator’s role, especially in light of her concerns about the unreliability of Ms. Turner’s evidence and the relative paucity of the evidence about her pre-accident state. Similarly, it was up to the arbitrator to weight the value of the documentary evidence provided by Bellwoods and the other service providers, and so it was no error to find that it would have been helpful to hear from witnesses to give contemporaneous evidence.

While the arbitrator recognized that Ms. Turner’s condition had deteriorated since the accident, she found the evidence deficient and unreliable in certain critical areas, especially the lack of pre-accident medical records or independent information from which to establish a medical baseline to assess her post-accident health. She expected that Ms. Turner’s counsel would have presented written or oral evidence from her pre-accident family doctors, particularly Dr. Lee, and her pre-accident chiropractor, Dr. Perry, to give evidence that might have clarified her pre-accident medical picture. In their absence, the arbitrator found it reasonable to infer that the records and doctors more likely than not would not have assisted Ms. Turner’s claims, and I see no error in her having done so.

With respect to the records of Dr. Lee, Ms. Turner submits that at the hearing the insurer’s counsel advised that Dr. Lee was not important and could be dropped as a witness and that, furthermore, as the insurer had failed to request the records, no consequences should accrue. However, the insurer essentially gave up trying to summon Dr. Lee because of Ms. Turner’s resistance, and in any event the arbitrator was in no way bound by the insurer’s statement. Ms. Turner essentially submits that in any case where an insurer does not ask for documentation, the applicant does not have to provide it at the hearing, and the arbitrator should find in her favour. Again, Ms. Turner fails to appreciate the roles of the parties and the requirement for her to prove her case to the arbitrator.

With respect to the records of Dr. Perry, Ms. Turner submits that the arbitrator erred when she stated there was no evidence to establish a baseline. Ms. Turner refers to Dr. Perry’s disability certificate dated June 29, 1993 and correspondence from him dated November 28, 2004. However, the certificate contains essentially one line on the point, and the correspondence contains one paragraph, most of which relates to chiropractic treatment. It may have been a technical error by the arbitrator to use the phrase “no pre-accident medical information.” However, the arbitrator was faced with a small mountain of post-accident medical records, based – as she frequently noted – on self-reports by Ms. Turner, against which the appellant places these few lines from her chiropractor. That is hardly enough to constitute legal error. The arbitrator’s point regarding the dearth of evidence remains valid.

Ms. Turner submits that the arbitrator erred in her assessment of the medical reports. She submits that some assessors were not concerned about the lack of pre-accident documentation. However, as set out above, the arbitrator noted the concerns that other assessors raised, and she was clearly concerned about it herself. Ms. Turner submits that the arbitrator did not give a fair review of the reports of Dr. Mamelak when she stated that they did not directly speak to the impact of the accident on Ms. Turner’s health. However, as set out by the arbitrator, Dr. Mamelak in his first report stated that he required further diagnostic data and a neuropsychological assessment before he could arrive at an opinion on Ms. Turner’s medical status, and nine years later he still expressed confusion. In light of the contradiction between that and Dr. Mamelak’s final statement that the accident had a clear impact on Ms. Turner, it is understandable that the arbitrator did not find the reports of much assistance.

Ms. Turner submits that the arbitrator ignored earlier “findings” that she was disabled as a result of the accident in the initial arbitration decision on the limitation period, (FSCO A99–000578, July 24, 2000). The arbitrator in that decision noted that Ms. Turner filed an application for mediation stating that she received weekly disability benefits until June 16, 1996 at $250 per week. However, that is not a finding but a mere recitation. Furthermore, the arbitrator in the decision under appeal was entitled to assess the evidence and make her own findings.

Finally, Ms. Turner submits that the arbitrator failed to consider the issue of material contribution, since the arbitrator’s finding is essentially that the accident was simply a coincidence and that her medical condition would have been the same had the accident not occurred. However, the arbitrator clearly set out why she was not persuaded that Ms. Turner’s condition was contributed to by the accident. I see no error in the arbitrator’s reasoning on this point.

The appeal is therefore dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 24, 2008

David Evans Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule – Accidents Before January 1, 1994, Regulation 672 of R.R.O. 1990, as amended.
Restoring arbitration and appeal decisions that had been reversed in Turner v. State Farm Mutual Automobile Insurance Co., 2004 CarswellOnt 3220 (Ont. Div. Ct.).
Wilson and TD Home and Auto Insurance Company, (FSCO A03–001091, March 10, 2006), Akehurst and Aviva Canada Inc., (FSCO A06–001680, March 27, 2006), and Saunders and Royal & SunAlliance Insurance Co. of Canada, (FSCO A07–000499, June 20, 2007).
Nguyen was not followed in Ayoub and Aviva Canada Inc., (FSCO A05–001045, May 12, 2006), and was only mentioned in Ananthamoorthy and TD Home and Auto Insurance Company, (FSCO A06–001533, March 21, 2007).