Wawanesa Mutual Insurance Company v. Mole, 2008 ONFSCDRS 73

Financial Services Commission of Ontario

Commission des services financiers de l'Ontario

Neutral Citation: 2008 ONFSCDRS 73

Appeal P07-00010

OFFICE OF THE DIRECTOR OF ARBITRATIONS

WAWANESA MUTUAL INSURANCE COMPANY Appellant

and

ANGELA MOLE Respondent

BEFORE: David Evans

REPRESENTATIVES: Ian D. Kirby for Wawanesa Mutual Insurance Company Jeremy Solomon for Mrs. Mole

HEARING DATE: March 10, 2008

APPEAL ORDER

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

1. Wawanesa Mutual Insurance Company's appeal from the arbitrator's decision dated February 26, 2007 is dismissed.
2. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

May 7, 2008

David Evans Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

On December 4, 2001, Mrs. Mole was struck by an automobile and suffered a bump on her head and soft tissue neck, back and knee injuries. Mrs. Mole claimed a number of benefits. The arbitrator found she was entitled to non-earner benefits (NEBs) under s. 12 of the SABS–1996,¹ but denied her claims for housekeeping and further attendant care benefits. The arbitrator found that Mrs. Mole was entitled to reimbursement under Part V of the SABS of all of the Paxil prescription medication claimed since the accident. The arbitrator also awarded under s. 24 of the SABS the expense of Dr. Ayoob Mossanen's report of October 16, 2003.

Wawanesa appeals the arbitrator's award of the NEBs, the cost of prescriptions and the cost of the medical examination. However, for the reasons set out below, the appeal is dismissed because it turned exclusively on findings of fact, in particular credibility and the weighing of evidence, and appeals are only on questions of law: Insurance Act, s. 283(1).

II. ANALYSIS

NEBs are payable where an insured person sustains an impairment as a result of an accident, does not qualify for an income replacement benefit, and as a result of and within 104 weeks after the accident "suffers a complete inability to carry on a normal life." The latter is defined as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident" [s. 2(4)]. The arbitrator's decision focused on Mrs. Mole's psychological condition because she alleged that the accident greatly exacerbated her longstanding pre-existing depression and anxiety.²

Wawanesa points out that the arbitrator did not accept much of the evidence Mrs. Mole tendered. The arbitrator noted: "All the health experts agree that both before and after the accident she cannot be relied on to portray her functional state, her health or her history…. Her treating psychologist of many years [Dr. D'Alessandro] characterizes her as histrionic."

Furthermore, in determining Mrs. Mole's entitlement, the arbitrator rejected or gave little weight to much of the medical evidence she relied on, mainly because she gave the assessors inaccurate information. These included: Dr. Ayoob Mossanen, a neurologist who prepared a report in October 2003 (although as noted above the arbitrator allowed the expense of the report); Dr. Fred Langer, an orthopaedic surgeon, who saw her for an assessment in late 2003; Dr. Richard Gladstone, a neurologist whom Mrs. Mole hired to conduct an assessment in 2004; Dr. David Kurzman, a neuropsychologist, who saw her twice in September 2004; and Mr. Terry Kane, the registered nurse Mrs. Mole retained to evaluate her home activities in 2005.

Wawanesa submits that the arbitrator erred by relying on irrelevant in-home assessments of the occupational therapist, Ms. Lyndy Goldlust. It bases this argument on the fact that Mrs. Mole's accident occurred on December 4, 2001, and s. 12(7)(b) of the SABS provides that the insurer "is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life" — that is, not until June 4, 2002. However, Ms. Goldlust did not testify and her evidence consisted only of reports written between December 11, 2001 and April 2, 2002. Accordingly, Wawanesa argues, there are no opinions from Ms. Goldlust from around the six-month point or afterwards. I agree that it is difficult to see how the reports of Ms. Goldlust could have been of much direct assistance, since the issue was Mrs. Mole's condition in June 2002 and not her condition during the first six months. However, the arbitrator found that Mr. Vito Mole's description of his wife's post-accident activities was confirmed by Ms. Goldlust's assessments. In context, he was relying on these assessments to assess Mr. Mole's overall credibility since, as will be discussed, Mr. Mole's credibility was challenged.

Wawanesa makes the same argument regarding Dr. D'Alessandro's evidence. Wawanesa submits that the arbitrator erred in relying on the opinion of Dr. D'Alessandro to conclude that Mrs. Mole met the test for NEBs since he wrote: "Significantly, Dr. D'Alessandro did not present an opinion whether Mrs. Mole suffers the requisite complete inability to carry on her normal pre-accident life as a result of the accident, and his evidence does not provide a professional opinion supporting her non-earner benefit claim."

However, the arbitrator noted that Dr. D'Alessandro's evidence supported Mrs. Mole's claim that her psychological condition deteriorated after the accident as a result of the accident and negatively affected her ability to conduct her normal pre-accident life. The arbitrator also relied on the evidence of Dr. Sam Ozersky, Wawanesa's examining psychiatrist, who, despite having difficulty obtaining accurate information from Mrs. Mole, concluded the accident significantly contributed to Mrs. Mole's pre-existing depression and anxiety. The arbitrator accepted that opinion because it was supported by Dr. D'Alessandro's regular observations both before and after the accident of Mrs. Mole's increased post-accident depression and Mr. Mole's similar evidence. As to Mr. Mole's credibility, the arbitrator found Dr. D'Alessandro's evidence was also generally consistent with Mr. Mole's characterization of his wife's pre-accident condition. Accordingly, Dr. D'Alessandro's evidence was helpful for the arbitrator in providing information about Mrs. Mole's psychological deterioration and about Mr. Mole's credibility.

The arbitrator's decision ultimately rested on Mr. Mole's credibility. As Wawanesa points out, the arbitrator could not rely on the evidence of Mrs. Mole to support her claims. Accordingly, he was left with weighing Mr. Mole's credibility.

Wawanesa submits that the arbitrator erred in accepting Mr. Mole's testimony as being "generally trustworthy" in describing Mrs. Mole's pre- and post-accident life because he had actively assisted his wife in misrepresenting her pre-accident condition to the medical assessors. He had attended with his wife for most of her medical assessments and had assisted with the medical history or interpreted for Mrs. Mole when she provided a history to the various physicians. Mrs. Mole, in the presence of and with the assistance of her husband, advised a variety of medical experts whom she saw either at the request of her family physician, her own solicitor or Wawanesa that she was in good health prior to the accident when — as was found by the arbitrator — that was clearly not the case. Indeed, I note that the arbitrator found that Mr. Mole participated in misleading the doctors. For instance, he wrote that Dr. Langer was not able to determine the impact of the accident on Mrs. Mole "because Mr. and Mrs. Mole gave him wrong information about her condition…." Similarly: "Mr. Mole told Dr. Ozersky his wife was fully functioning despite her depression before the accident…." [My emphasis.]

However, although the arbitrator noted problems with Mr. Mole's credibility, he had an evidentiary basis on which to find Mr. Mole generally credible, when combined with the evidence from Dr. D'Alessandro and Ms. Goldlust. For instance, he found the testimony of Mr. Mole about his wife's pre-accident activities generally trustworthy because it was "fairly consistent with her Canada Pension Plan (CPP) records." He also found that Mr. Mole was more sanguine about his wife's recovery than Dr. D'Alessandro, since the latter's notes "paint[ed] a less functional post-accident woman than Mr. Mole described." This suggests that the arbitrator found that Mr. Mole tended not to exaggerate. The arbitrator found that Mr. Mole's testimony was consistent with Ms. Goldlust's assessments in the immediate post-accident period.

The Divisional Court has recently restated in the unpublished decision Kanareitsev v. TTC Insurance Company Ltd. (February 6, 2008), Court File No. DC-060081917-00, particularly when results turn on the first instance decision-maker's view of the credibility of witnesses and involves a fact-driven analysis, appellate review must take proper account of the decision-maker's distinct advantage and not simply substitute a different view. Accordingly, I have no reason to intervene.

The same comments apply to the arbitrator's review of the surveillance. Although Wawanesa submits he gave it insufficient weight, it was up to the arbitrator to assess its value.

With respect to Mrs. Mole's disability, Wawanesa submits that the arbitrator failed to comment on the opinion of Dr. Irving Grosfield, an orthopaedic surgeon who saw Mrs. Mole at Wawanesa's request. Dr. Grosfield concluded Mrs. Mole had suffered soft tissue injuries that did not, from a musculoskeletal point of view, prevent her from returning to her activities of daily living. However, again as stated in Kanareitsev, the arbitrator did not have to engage in a detailed analysis of each and every aspect of the major points in issue as long as he referred to the principal evidence he relied upon and provided a justification for his conclusion. The arbitrator did so. The fact that he did not specifically refer to Dr. Grosfield was thus not automatically an error, since "[n]ot reciting all the evidence does not mean the arbitrator failed to consider it": State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099.

Wawanesa submits that the arbitrator failed to set out the reasons he found Mrs. Mole met the disability test for NEBs. It submits that she had a limited life before the accident due to her disabilities and that after the initial recovery period there was little change. However, based on Mr. Mole's testimony, the arbitrator found that Mrs. Mole's normal life before the accident consisted of "doing the majority of the cooking, light dusting and house cleaning (70%), some sewing, reading, watching television or listening to radio, light gardening, shopping, taking frequent walks, socializing with friends and family, babysitting her grandchildren and attending church."

As for post-accident, Mr. Mole testified that Mrs. Mole was "far more depressed, fearful and anxious," took shorter walks, had given up babysitting their grandchildren, reading, watching television or listening to radio. The spouses' housekeeping roles were also reversed. The arbitrator recognized that Mrs. Mole had resumed a number of normal pre-accident activities (most of her personal care, a third of the cooking and housecleaning, shopping and modest gardening). However, he found that prior to the accident, Mrs. Mole drew great enjoyment from babysitting her grandchildren, reading, taking long walks and visiting the library, and that her enjoyment of these rewarding interests were "profoundly compromised in quality and quantity as a result of her accident injuries." He found that post-accident Mrs. Mole had virtually stopped reading, ceased babysitting/family socializing, watching television or listening to radio, and walked for shorter distances and less frequently.

The arbitrator then applied what he termed Brockenshire J.'s "realistic approach" in Walker v. Ritchie, 2003 CanLII 17106 (Ont.S.C.)³ of attaching greater weight to the main activities and interests in which a claimant engaged before the accident than to a "shopping list" of activities. He concluded that this qualified as "substantially all" activities of her normal life and entitled her to NEBs. I find that the arbitrator referred to the evidence he relied upon and provided a justification for his conclusion. As with determining entitlement to any benefit, this is a matter of arbitral judgment, and I see no reason to intervene.

The other claims the arbitrator awarded were relatively minor, and so I will address them briefly.

Wawanesa submits that with respect to the s. 24 assessment fee of Dr. Mossanen, the assessment did not relate to Mrs. Mole's SABS claims but to her tort claims, and to the extent it did relate to the SABS claims, it did not relate to those benefits where she was successful. Indeed, the arbitrator gave Dr. Ayoob Mossanen's report of October 16, 2003 little weight because he was unable to perform a complete evaluation due to Mrs. Mole's reluctant participation and his report did not address the non-earner benefit eligibility test. However, the arbitrator found the report directly related to Mrs. Mole's claims for accident benefits because it focused on the health care professionals' analysis and treatment of her psychological problems. Accordingly, he found that Mrs. Mole was entitled to full reimbursement of this amount under s. 24 of the SABS. As noted by the arbitrator, "Dr. Mossanen's detailed physical evaluation and diagnosis ventures an opinion that her physical problems are not the culprit and concludes that her psychological condition is the real problem." In context, I see no reason to intervene in that aspect of his decision.

On a procedural point, Wawanesa submits that it was conceded by Mrs. Mole that no prior approval for the assessment had been sought. Wawanesa submits that s. 24(1.1) of the SABS therefore precludes her from entitlement. This subsection provides that an insurer is not required to pay a s. 24 claim if the expense was incurred "before obtaining the approval of the insurer." The arbitrator declined to consider whether this provision that came into effect on October 1, 2003 applied. Even on appeal, I was given little in the way of submissions regarding the applicability of the section in this case. I am not prepared to find the arbitrator erred in declining to consider the change in the legislation.

With respect to the medication, the arbitrator relied on the evidence from Dr. D'Alessandro and Mr. Mole that Mrs. Mole experienced a greater degree of depression and anxiety as a result of this accident: "Mrs. Mole took anti-depressant medication before the accident, but Dr. D'Alessandro stated that he increased her prescription after the accident to control her symptoms." The arbitrator noted that the prescription summary, which showed that Dr. D'Alessandro increased Mrs. Mole's dosage of prescription Paxil medication from 10 to 20 and then to 30 milligrams, was consistent with his testimony.

Wawanesa submits that with respect to the medication, Mrs. Mole was taking essentially the same medication both before and after the accident for the same symptoms, so it should only be liable for the increased expense. However, the notes of Dr. D'Alessandro and the prescription summary indicate that the Paxil prescription is new after the accident. The summary shows that generally Mrs. Mole had two prescriptions for other medications per consultation before the accident that increased to three after, including the prescriptions for Paxil, of which I find five totaling about $425. I am satisfied that the Paxil prescription was an increased expense and the arbitrator was within his jurisdiction to find Mrs. Mole entitled to the prescription costs for the Paxil arising out of her increased anxiety following the accident.

Accordingly, the appeal is dismissed.

III. EXPENSES

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

May 7, 2008

David Evans Director's Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2As noted by the arbitrator, the Canada Pension Plan records indicated that prior to the accident Mrs. Mole had given up dancing, socializing and swimming. She had received CPP disability benefits since 1994 and "suffered ongoing chronic anxiety/depression, hypertension, arthritis/low back pain, left hip pain, dizziness and bilateral leg pain."
3. 3Upheld on appeal, although the insurer had not appealed the award of NEBs but just the deductibility issue: Walker v. Ritchie, 2005 CanLII 13776, 197 O.A.C. 81.