Mr. C v. Kingsway General Insurance Company, 2009 ONFSCDRS 35

Commission des services financiers de l’Ontario

Neutral Citation: 2009 ONFSCDRS 35

Appeal P08-00025

Mr. C

Appellant

and

Respondent

BEFORE:

Delegate Lawrence Blackman

Mr. C represented himself

Mr. Darrell March for Kingsway General Insurance Company

HEARING DATE:

March 5, 2009

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

The Arbitrator’s order dated June 27, 2008 is confirmed and the appeal is dismissed.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003).

March 26, 2009

Lawrence Blackman Director’s Delegate

Date

I. NATURE OF THE APPEAL

The Appellant, Mr. C, was involved in three motor vehicle accidents which are the subject of this appeal, namely on March 26, April 13, and October 29, 2001. The Appellant had been involved in an earlier motor vehicle accident on April 23, 2000.

A nine-day arbitration hearing was held before Arbitrator Leitch (“the Arbitrator”) wherein the Appellant claimed against his first-party insurer, Kingsway General Insurance Company (the “Respondent”), income replacement benefits (“IRBs”) pursuant to the Schedule¹ after October 6, 2002. The Appellant’s IRB claim was under both subsection 4(1) (the “own occupation” test) and clause 5(2)(b) (the “any occupation” test) of the Schedule.

The “own occupation” disability test provides an insured person with weekly IRBs for the period that the insured person suffers “a substantial inability to perform the essential tasks” of the applicable pre-accident employment. The “any occupation” disability test provides weekly IRBs for the period that the insured person suffers “a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.”

In addition, the Appellant sought a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8.

The Arbitrator’s June 27, 2008 decision dismissed the Appellant’s claims.

The Arbitrator found that the accidents in 2001 did contribute in a material or significant way to the Appellant’s pain and psychological problems. However, the Arbitrator concluded that the Appellant did not discharge his onus of proving that his complaints rendered him unable to return to his pre-accident employment after October 2002. The Arbitrator held that it followed that the Appellant was not entitled to IRBs under the “any occupation” test that replaces the “own occupation” test after 104 weeks of disability. Having found no entitlement to benefits, the Arbitrator found that there was no entitlement to a special award.

While acknowledging that a September 2002 disability DAC (Designated Assessment Centre) assessment was missing a psychological or psychiatric opinion, the Arbitrator nonetheless found that:

… by the time Mr. C's IRBs were terminated in October 2002, his ability to return to his pre-accident work had been assessed in September 2001, December 2001, April 2002 and September 2002. Each time, the assessment included a Functional Abilities Evaluation. All of the Functional Abilities Evaluations were based on [the Appellant’s supervisor’s] written descriptions of Mr. C's job. The conclusion of three of the assessments was that Mr. C was able to return to his pre-accident employment. The only assessment that concluded that he was not able to return to work took place about a month and a half after his October 29, 2001 accident. Nine months after that accident, in September 2002, the same DAC assessors reached the opposite conclusion.

The Arbitrator noted that the Appellant did not challenge the Functional Abilities Evaluations’ understanding of the physical demands of his job. Rather, the Appellant submitted that he was unable to return to that or any other job due to chronic pain and psychological problems.

The Arbitrator reviewed the Appellant’s evidence as to his efforts after the accidents to keep two, less physically demanding jobs. The Arbitrator concluded that while this did not prove or disprove disability regarding his own job, it effectively countered the Appellant’s expert evidence that he had been rendered completely unemployable by his three accidents in 2001.

The Arbitrator noted that the Appellant had told Dr. H. Berry, a neuro-psychiatrist, that in 2002 he stopped working as a telemarketer because he “lost interest.” The Arbitrator also found that if the Appellant was able to hold down a subsequent office job for four months in 2003, it was likely because he was able to do that job.

The Arbitrator reviewed the evidence of Dr. G.B. Molnar, the Appellant’s family doctor, who testified on behalf of the Appellant. The Arbitrator found a number of weaknesses in this expert’s evidence, including (a) his downplaying of the significance of the September and December 2001 assessments upon which the Respondent relied, (b) his apparent willingness to simply accept the Appellant’s view about his ability to return to work, (c) his lack of clarity on the issue of disability and (d) an absence of a disability certificate or report from him between the October 2002 termination of IRBs and the change in the applicable disability test that, at the latest, took place in October 2003.

The Arbitrator was not prepared to assign a greater weight to Dr. Molnar’s opinion than the above noted disability assessors upon whom the Respondent relied. Further, the Arbitrator noted that Dr. Molnar ultimately deferred to the opinions of those disability assessors.

The Arbitrator also reviewed the medical reports of Drs. V. Ali (psychiatrist), D. Watkins, and E. Grief (the latter two, psychotherapists). He concluded that their combined evidence fell well short of a successful challenge to the opinion of Dr. D.R. Cohen, psychologist, in his April 2002 assessment, that the Appellant was psychologically able to return to his pre-accident work. The Arbitrator also gave reasons why he was not prepared to give greater weight to the opinion of Dr. M. Greenspoon, who specialized in pain control, than the disability assessors.

Dr. Berry testified on behalf of the Appellant. The Arbitrator found that Dr. Berry’s opinion regarding the Appellant’s disability was weakened, first, in that he examined the Appellant three and a half years after IRBs had been terminated, that is, in June 2006. Further, the Arbitrator found that Dr. Berry had overlooked the Appellant’s return to work on two occasions after the 2001 accidents.

The Arbitrator found that Dr. Berry attempted to change his opinion at the hearing regarding the Appellant from complete disability from any type of work to complete disability from any continuous type of work. The Arbitrator found that “the more Dr. Berry attempted to correct his oversight, the further his opinion strayed from both the law and the facts.” The Arbitrator concluded that Dr. Berry’s opinion provided little support for [the Appellant’s] claim for IRBs during the “own occupation” period. The Arbitrator did not make a similar, explicit statement regarding Dr. Berry’s opinion concerning the post 104-week period.

II. The APPELLANT’S SUBMISSIONS

The Appellant submits that the Arbitrator erred in his decision in misapprehending the evidence and in not considering the post 104-week disability test.

The Appellant notes the Arbitrator’s statement in his decision that:

… there is no evidence that Mr. C ever tried to return to his pre-accident job prior to October 2003 or, assuming they were available, to seek modified duties with the same employer.

The Appellant challenges this statement, referring to evidence he submits indicates that while he wanted and tried to go back to work with his pre-accident employer, his employer would not provide modified duties.

The Appellant submits that it would have been detrimental to his recovery and to his condition to return to his unmodified, physically demanding pre-accident duties. The Appellant further submits that the three accidents in 2001 have impaired his body and spirit and have brought him to a level physically and psychologically where he cannot earn a living.

The Appellant also notes the Arbitrator’s statement that:

… the records of Dr. Greenspoon's Headache and Neck Pain Medical Centre indicate that Mr. C only received injection treatments there between December 2, 2003 and February 17, 2005.

The Appellant submits that the evidence, specifically Dr. Greenspoon’s documents dated October 21 and November 21, 2002 and the OHIP records, shows that he had been seeing Dr. Greenspoon in 2002 and 2003. This error, in the Appellant’s submission, is compounded by the Arbitrator using this incorrect information in undermining Dr. Berry’s opinion.

The Appellant submits that Dr. Berry’s oversight regarding his return to work should not be used against him. The Appellant cites Lanctot and Zurich Insurance Company, (FSCO P99-00012, November 9, 1999), that “an insured person who returns to work more than two years after the accident and continues working for more than 90 days will not automatically be disentitled by [the return-to-work provisions in] s.16(2).” The Appellant also submits that the evidence cited by the Arbitrator concerning Dr. Grief shows that work worsened his condition.

The Appellant notes that the Arbitrator acknowledged that the September 2002 assessment noted above did not include an assessment by a psychologist or a psychiatrist. The Appellant submits that the Arbitrator states at page 22 of his decision that he did not need to address the issue of the Appellant’s entitlement to benefits under clause 5(2)(b) of the Schedule, the “any occupation” test. The Appellant argues that this is especially noteworthy as the Arbitrator states, at page 20, that the Appellant’s condition had deteriorated over time, as acknowledged by Dr. Berry and supported by other evidence.

The Appellant relies on Kingsway General Insurance Company and Pereira, (FSCO P05-00031, December 20, 2006) for the proposition that it was an error of law to consider the post 104-week test in relation to an insured person’s physical injuries and fail to consider his psychological disability.

In his reply oral submissions, the Appellant raised for the first time the argument that the absence of a psychiatric or psychological assessment in the September 2002 assessment meant that there was an improper termination of his benefits. The Respondent objected, submitting that this argument was not raised at arbitration. Whether or not that is so, I found that given this ground of appeal was not raised in the Notice of Appeal, the Appellant’s written submissions or in his initial oral submissions, the Respondent was prejudiced such that this ground could not now be advanced. The Appellant clarified that he raised this point only in that he wished to show that the Arbitrator’s findings of fact actually supported his case.

III. THE RESPONDENT’S SUBMISSIONS

The Respondent, in its written submissions, argued that the Notice of Appeal should be dismissed as it raises only questions of fact, not of law. The Appellant, by contending that the Arbitrator misunderstood the evidence, is rearguing the merits of his case and reiterating evidence that was before the Arbitrator that he believes supports his case.

The Respondent submits that the Arbitrator properly considered (1) the criteria for the “own occupation” and “any occupation” tests, (2) the onus and (3) the evidence before him, in dismissing the Appellant’s claims for IRBs after October 6, 2002.

The Respondent further submits that the Arbitrator, while acknowledging that the September 2002 DAC assessment did not include a psychologist or a psychiatrist, “ultimately found that none of the evidence offered by the Appellant discharged his onus to prove on a balance of probabilities that he was unable to return to his pre-accident work due to psychological/

psychiatric problems.”

The Respondent argued that the Arbitrator, after carefully analyzing and comparing the opinions of Drs. Molnar and Berry with the assessments upon which the Respondent relied in terminating benefits, found that none of the evidence presented by the Appellant met his onus. The preference given by the Arbitrator to the Respondent’s medical evidence is a non-appealable finding of fact. Further, the Arbitrator found that the opinions of Drs. Molnar and Berry did not establish that the Appellant was disabled from returning to work.

In oral submissions, the Respondent submitted that the only question of law raised in the appeal was whether the Arbitrator considered clause 5(2)(c) of the Schedule, the “any occupation” test. The Respondent submitted that the Arbitrator did consider the post 104-week test and rejected that claim, indicating in the last paragraph of his decision that there was more than one reason for rejecting the Appellant’s claim.

The Respondent submits that Pereira is distinguishable from this case. In Pereira, Delegate Evans found that the arbitrator had erred in applying the pre 104-week “own occupation” test to the question of psychological disability rather than the more onerous “any occupation” test. In this case, the Appellant was denied post 104-week IRB entitlement because he had failed to meet the less onerous pre 104-week disability test.

The Respondent argues that the Arbitrator did not make a finding that the Applicant’s condition had deteriorated; rather, there was an acknowledgement of the opinion of some assessors that there has been some deterioration. In any event, the Arbitrator rejected the opinions of Dr. Molnar and Dr. Berry in their entirety, specifically because they found that the Appellant was disabled throughout from any occupation.

IV. ANALYSIS

Appeals from the decision of an arbitrator, pursuant to subsection 283(1) of the Insurance Act,

R.S.O. 1990, as amended, are restricted to issues of law. As stated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, "an appeal is not a retrial of a case."

Delegate Evans stated in Pereira that:

… errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. Furthermore, inferences can be attacked at two distinct levels: if the appellant can demonstrate the arbitrator made an error of law when he made the findings of fact on which the inference was based, or if the arbitrator made an error of law in the inference-drawing process itself.

The Appellant attacks several specific findings of fact made by the Arbitrator, namely his efforts to return to work, the availability of modified duties at his prior place of employment, and the number and period of treatments received from Dr. Greenspoon. Regarding certain of these findings, the Appellant raises legitimate concerns.

However, the overall basis of the Arbitrator’s decision was that he preferred the opinion evidence of the assessors upon whom the Respondent relied, for the numerous reasons given, over the opinion evidence of the Appellant’s assessors that the Appellant met the requisite disability tests after October 6, 2002. As stated in Rothwell v. Raes (1990), 2 O.R. 332 (C.A.), it is not for the appellate level “to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony,” nor is it my role as an appellate officer to substitute my findings of fact for those of the hearing arbitrator.

I find that Pereira is distinguishable from this case in that it deals with the opposite situation, where the arbitrator was found to have applied the less strenuous “own occupation” test to the “any disability” period. In this case, the Arbitrator, having found the Appellant not entitled to pre 104-week IRBs under the “own occupation” test, concluded that the Appellant was not entitled to post 104-week IRBs under the more onerous “any occupation” test.

In discussing why he did not accept Dr. Berry’s opinion regarding disability, the Arbitrator stated that:

… Dr. Berry did not examine Mr. C until June 10, 2006, three and half years after IRBs were terminated and two and half years after the outside limit of the 104-week period. While Dr. Berry reviewed earlier medical documentation … his report confirms that his own examination focussed on Mr. C's then current symptoms and ability to work. I note that when addressing the specific issue of Mr. C's ability to return to his pre-accident job, Dr. Berry wrote: "He is now disabled for his former heavy work by the combination of residual musculoskeletal, cervical and lumbar pains which are added to by the ongoing depression and anxiety state…"

This would not be a reason to doubt Dr. Berry's opinion if Mr. C's condition had not deteriorated over time but Dr. Berry himself acknowledged that it had. His report stated: "Overall, his symptoms have increased over the past years" … This observation was supported by other evidence. I note that on November 25, 2005, Mr. C was seen in the Urgent Health Clinic of the William Osler Health Centre where his "presenting problem" was described in the following terms:

Pt reported that he came to the Clinic because he has had difficulty getting on with his life and accepting things since being in 3 MVAs from March-April 2001 leaving him with chronic back, shoulder and neck pain. Symptoms reported by pt were social withdrawal; memories of the MVAs; hypervigilance in cars; difficulty tolerating crowds; sleep disturbance; fluctuating appetite; suicidal thoughts; anger; racing thoughts; boredom; panic attacks and episodes of high anxiety marked by shortness of breath and chest tightness. He described his motivation and interest level to vary and panic attacks to be less frequent/severe. He denied psychotic symptoms. Pt described his mood as "I feel down every day"…

Based on the evidence before me, this was the first time Mr. C had been seen on an emergency basis for his psychological problems and it confirmed that his problems had become more acute than previously reported. This deterioration undermined Dr. Berry's ability to assess Mr. C's ability to return to his pre-accident job between October 2002 and October 2003.

The Arbitrator, in my view, did make a finding of fact that the Appellant’s condition did deteriorate and found that Dr. Berry’s opinion regarding disability (as discussed above) was undermined by this consideration, amongst others. The Arbitrator, however, did not reject Dr. Berry’s evidence in its entirety, as he accepted his opinion regarding causation.

Nonetheless, the Arbitrator, having found that the Appellant did not meet the “own occupation” test during the applicable October 6, 2002 to (at most) October 2003 period, found that the Appellant continued not to meet the “any occupation” test ongoing thereafter, notwithstanding the deterioration in his condition.

Had the Arbitrator concluded, without more, that the Appellant’s failure to meet the less strenuous “own occupation” disability test automatically meant that he failed to meet the more strenuous “any disability” test based on an inconsistent and incorrect inference that the Appellant’s physical and/or psychological condition had remained stable or had improved during the entire post 104-week period in question, that would constitute an error of law.

In the alternative, had the Arbitrator determined that post 104-week “any occupation” test of disability under the Schedule for any period after October 2003 was to be determined exclusively on the basis of the Appellant’s condition between October 2002 and October 2003, that also would be an error in law.

I am not persuaded that the Arbitrator made either of these errors in law. The Arbitrator, on page three of his decision, held that the Appellant did not discharge the onus of proving that his complaints rendered him unable to return to work at his pre-accident job after October 2002. The Arbitrator reiterates that finding at page 22 of his decision, again without limiting the subsequent time period.

The Arbitrator states that he has come to this conclusion “For these reasons.” These reasons, in my reading of the decision, include the prior seven pages of the Arbitrator’s decision in which he critiques the Appellant’s medical expert evidence and finds it wanting, again, in my reading of the decision, regarding the entire claim period both pre and post 104-weeks. Based on multiple reasons, the Arbitrator concludes that the Appellant did not meet his onus for the “own occupation test” after October 2002. As the “own occupation” test is encompassed within, and is less onerous than the “any occupation test,” it follows that the Appellant did not meet the latter test, once it became applicable.

Accordingly, I am not persuaded that the Appellant has established that Arbitrator erred on a

question of law. Therefore, the Arbitrator’s order dated June 27, 2008 is confirmed and the appeal herein is dismissed.

V. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, an expense hearing may be arranged pursuant to Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003). Rule 79 provides that either party may request, in writing, an appointment before an adjudicator to determine expenses if the request is made within thirty days from the date the decision on all other disputed issues was issued, in this case being March 26, 2009.

I wish to thank both parties for their courtesy, helpful submissions and assistance in moving this matter forward through the appeal process.

March 26, 2009

Lawrence Blackman Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.