Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 157

FSCO A08-000880

BETWEEN:

JOSE ESCOBAR URIBE

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Minor error on pg. 12 corrected on October 8, 2008 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Joyce Miller

Heard: September 5, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Nicolas Canizares for Mr. Uribe Paul Kiddey for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Jose Escobar Uribe, was injured in a motor vehicle accident on December 11, 2006. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on May 2, 2007. The parties were unable to resolve their disputes through mediation, and Mr. Uribe applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On September 5, 2008, Mr. Uribe brought a Motion for Interim Benefits pursuant to section 67 of the Dispute Resolution Practice Code. The issues in this hearing are:

Is Mr. Uribe entitled to interim benefits pursuant to subsection 279(4.1) of the Insurance Act?
Is Mr. Uribe entitled to a special award pursuant to subsection 282(10) of the Insurance Act?
Is Mr. Uribe entitled to expenses pursuant to section 282(11) of the Insurance Act?
Is Mr. Uribe entitled to interest pursuant to section 46(2) of the Schedule?

Result:

Wawanesa shall pay Mr. Uribe interim income replacement benefits in the amount of $311.40 from May 3, 2007 until a final arbitration order is made.
The issues of special award, expenses and interest in this motion is deferred to the hearing arbitrator.

THE LAW

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

As pointed out by Arbitrator Feldman in the case of Ananthamoorthy and TD Home and Auto Insurance Company², “The Act itself does not give any guidance as to what factors an arbitrator ought to consider in deciding whether or not to exercise this discretion in favour of an applicant.”

In the Ananthamoorthy decision, Arbitrator Feldman undertook an analysis of the various cases on interim benefits and provided the following analysis with which I agree.

Arbitrators have wrestled with this issue for over a decade. It is extraordinary (even in the realm of consumer protection) to grant monetary relief to a party prior to a full hearing on the merits of the case. Therefore, on a motion such as this, arbitrators have generally considered whether or not the applicant has demonstrated a compelling reason for the Commission to grant interim relief.

As part of this analysis, arbitrators have given some consideration to the apparent merits of the application, the majority of arbitrators finding that the applicant must at least demonstrate a prima facie case.³ Arbitrators have not always agreed on what this means.⁴

Arbitrators have also generally considered whether the applicant has demonstrated some compelling need or urgency.⁵ In other words, “Is there a good reason why the applicant cannot wait until the hearing order is issued to receive any benefits (plus interest) to which he or she may be entitled?”

Ioannidis and Canadian General Insurance Group⁶ was a relatively early decision on this issue in which certain basic principles were enumerated (at pages 6 and 7 of the decision). Over time, different schools of thought began to develop concerning the criteria that ought properly to be considered on motions such as these. Different “tests” have developed and some have been applied rather strictly. More recently, there has been some indication of a shift by the Commission away from the rigid application of any particular “test” or “threshold”. Bearing in mind the principles enunciated in Ioannidis, arbitrators are beginning to return to a consideration of whether or not the applicant has demonstrated a compelling reason or reasons for the granting of interim benefits. The reasons may vary from case to case and the approach adopted must be flexible.⁷ For instance, a blatant disregard of the Insurance Act or the Schedule by the insurer may give rise to an order for interim benefits.⁸

A motion for interim benefits is summary in nature and does not constitute a full hearing on the merits of the application. As such, these motions are determined on limited evidence and submissions. These motions are meant to be resolved expeditiously and ought not to add substantially to the expense of the parties or delay the ultimate hearing. Since the power to grant interim benefits is discretionary, the arbitrator hearing the motion must simply exercise his or her discretion in a reasonable manner. That discretion extends not only to whether or not to grant interim benefits, but also to the amount and duration of those benefits.

I also agree and adopt the statements made in the following arbitration cases:

In the case of Saunders and Royal & Sunalliance Insurance Company of Canada⁹, Arbitrator Wilson, in awarding the applicant interim income replacement benefits, stated that “Poverty is not a pre-condition to the receipt of accident benefits. This is not a welfare scheme where parties must exhaust their assets before becoming eligible to receive payments.”

In coming to this conclusion Arbitrator Wilson relies, in part, on the comments of Arbitrator Mackintosh in the case of Edgar and Wellington Insurance Company.¹⁰ In that case Arbitrator Mackintosh stated that the Schedule is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a “fair and adequate income stream to those who are injured and disabled from work”. The victim is to receive an approximation of wages, and not be compensated more or less.

In the case of Haimov and ING Insurance Company¹¹ in awarding interim attendant care benefits, Arbirator Murray held that “‘Need’ means an absence of cash flow as well as impairment of capital which would jeopardize the Applicant’s future security in order to meet day-to-day living expenses,” and that “‘Urgency’ does not mean that a person must be in extremis before assistance is provided.”

EVIDENCE AND ANALYSIS

The evidence in this interim benefits motion hearing consists of facta from both parties, supporting documentary evidence, an affidavit sworn by Mr. Uribe and the cross-examination at the motion hearing of Mr. Uribe on his affidavit.

On December 11, 2006, Mr. Uribe was injured in a car accident when a car travelling at a fast speed went through a red light at an intersection and struck Mr. Uribe’s vehicle while he was in the process of making a left turn. At the time of the accident, Mr. Uribe was not working. He had been laid off from his job in construction. He had, however, worked in the 52 weeks preceding the accident. In addition, he provided evidence that he had worked in the three years prior to the accident.

Mr. Uribe’s injuries as a result of the accident, as noted in the Disability Certificate dated January 5, 2007, included whiplash, low back strain, insominia, and hypertension. The latter was noted as having been asymptomatic prior to the accident.

At the time of the accident Mr. Uribe had been under the care of his family doctor, M. Jane Pritchard, since 1992. Her clinical notes and records dating back to November 18, 2002 were placed into evidence along with a decoded OHIP summary from January 2003.

Despite the fact that Mr. Uribe had a significant pre-accident record of back, neck, shoulder, hand and wrist pain, wherein he received extensive physiotherapy, Mr. Uribe, nevertheless, did not take any time off from work because of his phyisical problems. Mr. Uribe submits that as a direct result of the accident he has developed a chronic pain disorder, post-traumatic stress, depression and hypertension. He further submits that as a result of his injuries from the accident, he is unable to do his previous construction work or any other work.

Mr. Uribe also submits that as a result of the accident, and his inability to work, he is forced to borrow monies from his family. He submits that he is in debt to his family in the amount of $18,300 based on a promise to repay when he receives his accident benefits.

Wawanesa opposes this motion for interim benefits on the basis that Mr. Uribe is not a credible witness, that he has not provided objective evidence of his financial need, that there is a serious causation issue, and that there is competing medical evidence which can only be resolved at a full hearing.

I disagree with Wawanesa’s submissions. For the following reasons, I find that Mr. Uribe has presented a prima facie case, as well as, compelling reasons as to why he should receive interim benefits.

First, I found Mr. Uribe to be a credible witness.

In assessing credibility there are a number of factors that an adjudicator must take into consideration. These include: the demeanour of the witness; whether there are internal inconsistencies in the testimony; whether the witness’ testimony has been contradicted by other evidence; and whether the testimony is plausible.

In addition, where there are inconsistencies and contradictions in the evidence, the adjudicator must decide when weighing and balancing the evidence, whether these inconsistencies and contradictions impugn the substantial and material elements of the claim being made, or are merely minor in nature.

In this case, I do not find that there are any inconsistencies and contradictions that would impugn the substantial and material elements of Mr. Uribe’s claim for interim benefits.

Under a very rigourous cross-examination by Insurer’s counsel, Mr. Uribe provided his testimony in a very straightforward and credible manner. Although he showed a great deal of frustration regarding his present life situation, I did not find that he exaggerated his case. Most importantly, there were no material or significant contradictions brought out in either Mr. Uribe’s affidavit or his oral testimony that would impugn his credibility.

Second, I am satisfied with the very detailed evidence of Mr. Uribe’s financial needs as outlined in his affidavit that he has made out a case for financial need. In absence of contradictory evidence, there is no reason why I should not accept his affidavit evidence.

Third, regarding the issue of causation, I find there is sufficient credible evidence to show that despite Mr. Uribe’s physical problems prior to the accident, he continued to work on a regular basis. There is some evidence recorded in Dr. Pritchard’s clinical notes and records dated July 31, 2004, that Mr. Uribe had contemplated taking early retirement in four or five years if he could get CPP or WSIB benefits. In her notes, Dr. Pritchard states that she advised him that “it is difficult to obtain either of these.” Mr. Uribe testified that he did not apply for either CPP or WSIB.

Fourth, and what I think is most determinative in my decision to award interim benefits is that, in my view, Mr. Uribe has provided sufficient relevant medical evidence, which was ignored by Wawanesa, that would support his claim at a full arbitration hearing for continuing income replacement benefits.

Medical Evidence

Mr. Uribe’s income replacement benefits were terminated on the basis of a multidisciplinary assessment which included: a Functional Capacity Evaluation by Dean Lurie, a kinesiologist, an orthopaedic surgeon’s assessment by Dr. Stephen Gallay, and a psychiatric assessment by Dr. Brian Hines. These assessments were conducted approximately four months after the accident.

In his assessment, Mr. Lurie rated Mr. Uribe’s work duties “as heavy level of work capacity.” He stated that “Mr. Uribe was pleasant and cooperative during the Functional Capacity Evaluation.” However, Mr. Lurie was unable to provide any meaningful conclusions because Mr. Uribe was unable to complete 10 out of the 13 tasks due to subjective reports of pain. Specifically, Mr. Lurie noted that “Mr. Uribe appeared focused on his pain symptoms during today’s assessment, and limited his performance as a result.”

In his report, Dr. Gallay except for disability certificates, makes no mention of having reviewed any substantial medical reports or clinical notes and records from Dr. Pritchard regarding Mr. Uribe’s past medical history. His report, which was very short, did not reflect an in-depth interview or examaination.

In his conclusions, Dr. Gallay stated:

At four months post-accident,with four months of rehabilitation without significant improvement, and with the clinical history and examination described above, it is my impression currently that Mr. Uribe is suffering from persistent subjective complaints of pain and, if the level of pain continues to be unchanged, it is unlikely that he will have a significant resolution of his symptoms. [emphasis added]

Dr. Gallay determined that he was unable to identify any objective evidence substantiating Mr. Uribe’s subjective complaints of severe pain. Accordingly, he concluded that Mr. Uribe could return to his pre-accident occupation and housekeeping tasks.

Dr. Hines concluded that Mr. Uribe’s “subjectively reported impairments” were not of sufficient severity to cause a disability. From a psychiatric perspective, he was of the view that Mr. Uribe did not suffer a substantial inability to perform his pre-accident employment.

After these assessments, except for an insurer’s assessment in June 2007 regarding a psychological treatment plan submitted by Mr. Uribe, Wawanesa did not conduct any further insurer’s assessments in the light of relevant medical evidence provided by Mr. Uribe to support his claim for income replacement benefits for benefits.

This relevant medical evidence includes Wawanesa’s own psychological assessment by Dr. Morris on June 7 and 11, 2007. This assessment took place as a result of a psychological treatment plan submitted on May 28, 2007, three weeks following the stoppage of benefits.

In his conclusions, Dr. Morris stated that: “Diagnositcally, Mr. Uribe …would appear to meet accepted DSM-TR criteria for Pain Disorder at this time.”; “The main clinical impression is that Mr. Uribe is suffering from unresolved emotional impairments and prudence suggests that these psychological sequelae of the accident should receive professional attention.”

Dr. Morris further states:

Findings of this evaluation seem different from the conclusions of Dr. Hines psychiatric evaluation of Mr. Uribe’s eligibility for income replacement and housekeeping benefits, where no diagnosis was established and Mr. Uribe’s depressive symptoms were rendered to be adequately treated with medications. Despite Dr. Hines opinion that Mr. Uribe’s complaints at the time of his evaluation might not have been proportionate for a clinical diagnosis, it is opined that his current MVA complaints do require psychological attention.

After the treatment plan was approved, Mr. Uribe began therapy with Dr. J Pilowsky. In a clinical note dated July 23, 2007, Dr. Pilowsky stated:

In my professional opinion, Mr. Uribe continues to be disabled from work, by virtue of his suffering from Post Traumatic Stress Disorder (309.81 in the DSM-IV) and a Major Depressive Episode, Moderate (296.32) Mr. Uribe is currently receiving medical treatment from his family physician as well as psychotherapy in my office. His prognosis remains guarded.

As Mr. Uribe remains unable to return to work, he does not have an income. The stress, hopelessness and increased anxiety that this finacially dire situation has created, is causing him to psychologically fall apart. I strongly believe that if Mr. Uribe does not begin to receive financial assistance his psychological vulnerability will exacerbate and he will be placed at risk of decompensation.

On June 27, 2007, in a referral by Dr. Pritchard to University Health Network, a Division of Toronto Western Hospital, Mr. Uribe was diagnosed by with “a moderately severe, chronic C6-8 left sides axonal radiculopathy¹²,” a diagnosis Mr. Uribe did not have before the accident.

On November 11, 2007, Dr. Pritchard, wrote a report of Mr. Uribe’s condition post-accident. In summary, Dr. Pritchard stated: “Mr. Uribe continues to be in constant, severe pain form (sic) injuries sustained in an MVA, involving cervical whiplash, and thoracolumbar strain. Now nearly 12 months post accident, he has developed a chronic pain syndrome.” In addition, Dr. Pritchard diagnosed Mr. Uribe with depression, post traumatic stress syndrome and hypertension. Dr. Pritchard concluded:

… he is sufficiantly disabled form (sic) pain that he certainly will never be able to work in construction again. Given the present level of his incapacity from depression and sleep, his prognosis for being able to work at any other occupation is guarded in my opinion, as he is 54 years old and has worked in construction all of his adult life.

Mr. Uribe underwent a psycholgical and psychiatric assessment on November 30 and December 18, 2007 within treating doctors, Dr. Alicia B. Araujo de Sorkin (a psychologist) and Dr. Ester Elliot (a psychiatrist). In their assessment report, which is not dated, it is noted that Mr. Uribe is suffering from “Major Depression, Mild to Moderate reactive to his MVA;” “Chronic Pain with Psychological features, anxiety, irritability and anger;” “Post-Traumatic Stress Disorder;” “Car Phobia;” “Hypertension and Chronic Pain;” and “Various stressors including, MVA, pain financial costraints, loss of job and physical functions, worries about his future.”

The report also notes that Mr. Uribe is receiving psychological treatment and was offered a short course in “Group Cognitive Behavioural Treatment. (CBT)” In addition it was noted that his “medication [Cipralex] was adjusted to the maximum recommended doses.”

In a follow up report dated July 11, 2008, it is noted that Mr. Uribe did not respond to the Cipralex medication and was started on a new antidepressant, Cymbalta. The report notes that this medication targets “neurovegetative symptoms of depression and anxiety as well as to increase pain threshold.”

The report goes on to say:

Mr. Uribe has been regularly follow up (sic) by psychiartrist to monitor his mental status and medication. He was compliant with his appointments and medication. However, he did not attend the CBT group of anxiety depression offered in our clinic. He attributed it to his finances (sic) constraints. We suggested that he continues with his individual psychotherapy in the community with Dr. Pillowski [sic] and for further benefits he needs to attend therapy.

Mr. Uribe has presented additional relevant medical evidence to support his case, than I have summed up in my decision. Although I have reviewed all of the evidence, for the purposes of coming to my decision, I find that the above summary of the relevant medical evidence is sufficient for the purposes of this motion.

Dr. Hines’ Addendum Report

A little over a week before the motion hearing, on August 27, 2008, Dr. Hines prepared a brief addendum to his April report wherein he stated that he conducted a paper review of Dr. Morris’ report of June 22, 2007, as well as Dr. Pilowsky’s report of July 23, 2007. Without providing any analysis or reasons Dr. Hines concluded: “After reviewing the additonal documentation, the opinions expressed in my Psychiatric Assessment Report dated April 26, 2007 remain unchanged.”

I give little if no weight to both Dr. Hines’ report and addendum. Besides not providing any analysis for his conclusion, Dr. Hines seems to be unaware or, for some unknown reason, does not give any consideration to the reports by Dr. Pritchard or the assessments by Mr. Uribe’s treating pyschologist, Dr. Araujo de Sorkin and his treating psychiatrist, Dr. Ester Elliot.

As well, I find that Dr. Hines April assessment and the paper review addendum when compared to the two day in-depth testing of Dr. Morris and the assessment of Mr. Uribe’s treating psychologist is very superficial. Accordingly, I cannot, in the light of Dr. Morris’ thorough assessment, and the report of Mr. Uribe’s treating psychologist, Dr. Pilowski, give Dr. Hines April report or his addendum much weight.

FINDINGS

In comparing the medical evidence, I find that the medical evidence presented by Wawanesa in support of its defense is negligible compared to the substantial relevant evidence presented by Mr. Uribe. For this reason, it is my view, that it is more likely than not that Mr. Uribe will be successful at arbitration in his claim for income replacement benefits.

I also find that Mr. Uribe has presented a compelling case in his affidavit evidence for his urgent financial need. This is also substantiated by the medical evidence which indicates that the financial stresses in Mr. Uribe’s life is impacting on his psychological health and fueling his depression.

Accordingly, for all of these reasons, I find that Mr. Uribe has presented a prima facie and compelling case as to why he should be awarded interim income replacement benefits.

I note that at the pre-hearing on July 7, 2008, Mr. Uribe had offered an early arbitration date, however, the Insurer’s Counsel was not available until March 23, 2009. I have taken this fact into consideration when making my order that interim benefits should be paid from the date of termination until a final arbitration order is made.

Accordingly, exercising my discretion pursuant to secion 279(4.1) of the Insurance Act, I find that Mr. Uribe is entitled to interim income replacement benefits in the amount of $311.40 a week from May 3, 2007 until a final arbitration order is made.

The issues of special award and interest are deferred to the hearing arbitrator.

EXPENSES:

The issue of the expenses of this motion is deferred to the hearing arbitrator.

September 25, 2008

Joyce Miller Arbitrator

Date