Janet Zepotoczny Berger v. Gore Mutual Insurance Company, 2010 ONFSCDRS 87

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2010 ONFSCDRS 87

Appeal P04-00018

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JANET ZEPOTOCZNY BERGER

Appellant

and

GORE MUTUAL INSURANCE COMPANY

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Janet Zepotoczny Berger represented herself

Kenneth R. Jones for Gore Mutual Insurance Company

HEARING DATE:

March 3, 2010

VARIATION/‌REVOCATION ORDER

Under section 284 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Berger’s application for variation/‌revocation of the Arbitrator’s order of March 26, 2004 is dismissed.

2. Each party shall bear their own expenses of this variation/revocation hearing.

July 14, 2010

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Janet Zepotoczny Berger seeks a variation/‌revocation of the Arbitrator’s March 26, 2004 order that she is not entitled to further benefits claimed pursuant to the SABS–1996.¹

II. BACKGROUND

On July 14, 1999, Ms. Berger was thrown from her seat on a TTC bus when the bus braked suddenly. She suffered abrasions as well as struck her left shoulder, bruised her clavicle, and had bruises below her right knee on the inner side, on her wrists and on her upper arm.

Ms. Berger applied for and received statutory accident benefits under the SABS from Gore Mutual Insurance Company. Gore Mutual terminated weekly income replacement benefits (IRBs) on September 15, 2000. Ms. Berger received some medical benefits under s. 14 of the SABS, but her claims from April 2001 onward for physiotherapy, massage and chiropractic treatments at Physiotherapy on Bay and Athlete’s Care were denied.

With respect to the IRBs, the Arbitrator noted Ms. Berger’s pre-accident history of working part time at a newspaper and as a critical care nurse at various Toronto hospitals. Ms. Berger testified at the arbitration hearing that although she never stopped working after the accident, it adversely affected her income. Gore Mutual terminated Ms. Berger’s IRBs after receiving a Designated Assessment Centre (DAC) assessment dated August 18, 2000 from Dr. Hugh Cameron, an orthopaedic surgeon.

The Arbitrator reviewed Ms. Berger’s history before the accident that showed she suffered from chronic low back pain and right side pain and had great difficulty doing night shifts. She also noted the medical reports, including that of Dr. Cameron, that suggested it was unlikely that most of her medical issues were a direct result of the accident and contradicted Ms. Berger’s testimony. The Arbitrator found that Ms. Berger did not meet the test for entitlement to income replacement benefits past September 15, 2000.

With respect to medical benefits, at the time of the hearing Ms. Berger was still receiving treatment for the upper left side of her back and for her neck and shoulders. The Arbitrator noted that Ms. Berger attributed all her symptoms to the accident. However, while Dr. Grant Lum, a physician at Athlete’s Care, had encouraged Ms. Berger to continue treatment with her massage therapist and chiropractor, the Arbitrator noted that he did not treat Ms. Berger until January 2000, and so was unfamiliar with her pre-accident condition. By way of contrast, the Arbitrator set out the conclusions by Ms. Berger’s own physician, Dr. Y.D. Verbeeten, that her left shoulder problems were not related to the accident. Further, the view of her treatment providers was that Ms. Berger’s problems were unconnected to the accident and that the pain she experienced was unlikely a direct result of the accident. In addition, a medical/‌rehabilitation DAC assessment conducted on November 27 and December 4, 2002 at St. Michael’s Hospital concluded that the proposed passive modalities and manual therapy were not reasonable and/or necessary because by the end of 2001, Ms. Berger had reached maximum clinical improvement and therapeutic benefit.

Accordingly, in her decision the Arbitrator found that Ms. Berger was not entitled to the further IRBs or medical benefits claimed.

Ms. Berger filed an appeal. She initially sought to have the filing fee waived. The Director of Arbitrations denied this request on the basis that, first, he had no power to do so and, second, her claim was neither obviously meritorious – as her grounds of appeal simply challenged the Arbitrator’s assessment of the evidence – nor had she shown an inability to pay. Ms. Berger ultimately refiled with the filing fee, but the appeal was now late. I denied an extension of the appeal period because I found the apparent strength of Ms. Berger’s appeal weak, seeing very little to suggest an error in law in the Arbitrator’s decision, and Ms. Berger had not pointed out to me any such errors.

III. ANALYSIS

An application for variation or revocation of an Arbitrator’s order is governed by s. 284 of the Insurance Act. Before I can exercise my power to vary or revoke the order or make a new order, at least one of the following three criteria in s. 284(3) must be met:

1. there has been a material change in the circumstances of the insured,
2. evidence not available on the arbitration or appeal has become available, or
3. there is an error in the order.

I have great difficulty in seeing how these criteria apply to any of Ms. Berger’s submissions and evidence presented at the variation/‌revocation hearing.

Much of Ms. Berger’s submissions and evidence deals with supposed errors made by Gore Mutual in its pre-hearing adjusting of the claim. Since this cannot be relevant to criterion 1, a material change in circumstances, I assume it relates to criteria 2 and 3. With respect to criterion 2, evidence not available, I see nothing to show that the evidence relating to the adjusting of the claim could not have been obtained for the hearing by due diligence, or that if allowed to be introduced, the evidence might reasonably be expected to have an important influence on the outcome: see Ready and Progressive Casualty Insurance Company (P‑004768/‌005403 and V-004768/005403, June 25, 1997). This material is therefore irrelevant. With respect to criterion 3, errors in an order, these include mistakes in the order needing correction, such as mathematical or calculation-type errors, or discrepancies between the form of the order and the reasons given for it. An error in the order may also arise where an Arbitrator has overlooked or has not dealt with a matter which, explicitly or implicitly, should have been addressed, or where the adjudicator has misunderstood the submissions made in a material respect: Hart and Allstate Insurance Company of Canada, (FSCO P99-00045, November 7, 2000). However, the material Ms. Berger referred me to might possibly be only relevant to a special award under s. 282(10) of the Insurance Act, and since the Arbitrator awarded no further benefits, no special award would be payable.

The remaining new evidence presented relates to criterion 1, Ms. Berger’s alleged material change in circumstances. However, the Arbitrator essentially found that by the time of the arbitration hearing Ms. Berger’s problems were no longer caused by the accident but by her pre-existing condition. Ms. Berger would have to present evidence that the problems caused by the accident had materially reasserted themselves such that they are again the cause of her disability.

Ms. Berger’s new evidence about her success in obtaining an income tax deduction related to disability and failure in obtaining a disability pension from the Canada Pension Plan is irrelevant. The decisions made by the institutions in both those cases were made in a context different from that of the SABS regime and do not assist in determining the cause of her ongoing disability.

Ms. Berger submits that there is a material change in her circumstances because she has continued to require treatment and because her condition has allegedly worsened. However, to the extent that the new medical reports deal with the causation issue, they simply reiterate Ms. Berger’s own point of view. They are of no assistance in proving her case, as they show no material change in her accident-related injuries and provide no new evidence of other injuries that are related to the accident.

For instance, Ms. Berger relies on a June 26, 2006 report from Dr. Lum in which he states that Ms. Berger is “unable at present to work in her chosen field, acute care nursing, as a result of pain she experiences related to previous injuries.” However, the Arbitrator rejected Dr. Lum’s opinion regarding causation because of his lack of knowledge of Ms. Berger’s pre-existing condition. The Arbitrator’s finding on this point still stands, so this report is of no assistance.

Ms. Berger submits that she has developed a heart condition as a result of the accident and that this is a material change in circumstance. She points to a handwritten report from Dr. Verbeeten, her family physician, dated August 22, 2006, in which he writes that she has a mild to moderate increase in her blood pressure “probably affected by her stress level secondary to her chronic pain.” First, the reference to chronic pain does not tie this condition to the accident, as the Arbitrator had already found Ms. Berger’s ongoing chronic pain complaints were related to her pre-existing condition, so the fact that Ms. Berger’s chronic pain continued since the hearing does not represent a material change in circumstance. Second, this alleged problem was further investigated by Dr. Brian Gilbert in the Sunnybrook cardiology division. In his report of May 22, 2009, Dr. Gilbert notes that Ms. Berger “has no cardiac symptomatology” and “[s]he may (or may not) have coronary disease.” Any connection Ms. Berger draws between any heart condition and the accident is purely speculative.

Ms. Berger also does not point to any specific point since the hearing where her accident-related condition reasserted itself. Indeed, her claim for medical benefits includes treatments she received before the arbitration hearing. Ms. Berger has failed to appreciate the Arbitrator’s finding with respect to causation and simply wishes to receive payment for her treatments as if the Arbitrator’s decision did not exist.

Aside from all of this, with respect to the medical benefits claim, Ms. Berger never submitted another treatment plan after the medical/rehabilitation DAC assessment referred to above. This was a prerequisite under s. 38(2) of the SABS (as it then read) to making any further such claims. As for any future claims, they are precluded by the 10-year time limit in s. 18(1)(a) of the SABS.

For these reasons, Ms. Berger’s application for variation/‌revocation of the Arbitrator’s order of March 26, 2004 is dismissed.

IV. EXPENSES

Ms. Berger was unsuccessful in her application for variation/revocation. I see no basis for her entitlement to any expenses of the hearing. As for Gore Mutual, Mr. Jones is an adjuster for the company and acted on its behalf in order to prevent any further legal expenses from being incurred. In these circumstances, I order that each party is to bear their own expenses of this variation/‌revocation hearing.

July 14, 2010

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.