Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 92
FSCO A06-001067
BETWEEN:
R. P.
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before: Susan Sapin
Heard: January 26, 27, 28 and 29, March 6, March 10 and 11, 2009. Resumed March 30, April 1, 2 and 3, 2009, in Kitchener and Toronto.
Appearances: Allan S. Blott for RP Eric K. Grossman for Allstate Insurance Company of Canada
Issues:
The Applicant, a self-employed bagel-maker, claims he lost his business as a result of physical and mental impairments sustained in a motor vehicle accident that took place on May 7, 2003. RP was driving his wife’s car, insured by Allstate Insurance Company of Canada (“Allstate”) when the accident occurred. He did not seek treatment until ten months later, on March 31, 2004, and first applied for statutory accident benefits to his own insurer, ING Canada, on April 28, 2004, almost a year after the accident, claiming an income replacement benefit (IRB) and expenses for active and passive rehabilitation. ING sent RP to an insurer’s medical examination (“IE”) which determined he was not disabled from his employment.1 Accordingly, ING refused to pay IRBs, and it rejected RP’s claim for treatment on the basis that treatment for soft tissue injuries so long after the accident “did not appear reasonable or necessary.”
At an IE in August 2004, assessors found RP’s behaviour so “bizarre,” “unique,” “very unusual,” and “abnormal,” they concluded he required immediate psychological and psychiatric evaluation.2 ING referred RP for another IE with a psychologist, Dr. David Prendergast, who examined him in October 2004 and concluded his presentation suggested significant psychopathology and emotional distress warranting psychiatric and neurological assessments.3
Eventually, in May 2005, Allstate acknowledged liability for RP’s claim on the basis that he was the spouse of their insured, TN.4 Allstate formally accepted priority on that basis and assumed carriage of the file in October 2005.5 It too refused to pay benefits, and continued to investigate RP’s claims.
On September 14, 2007, four and half years after the accident, RP applied to Allstate for a determination that he had suffered a catastrophic impairment as a result of the accident; in this case, a marked impairment due to a mental or behavioural disorder, under paragraph 2(1.1)(g) of the Schedule. Under the Schedule,6 persons determined to have a catastrophic impairment are entitled to request extended medical, rehabilitation and/or attendant care benefits and other expenses.
Allstate’s medical experts concluded that RP did not suffer a catastrophic impairment due to a mental or behavioural disorder as a result of the accident. It is Allstate’s position that RP does not suffer any impairment that prevents him from working or requires attendant care as a result of the accident. Allstate does not believe RP’s symptoms are genuine, and asserts he is in fact malingering.
The parties were unable to resolve their disputes through mediation, and RP applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, on May 12, 2006.
The issues in this hearing are:
Is RP entitled to a weekly income replacement benefit (IRB) from May 14, 2003 and ongoing, under subsection 4(1) and paragraph 5(2)(b) of the Schedule?
What is the amount of weekly IRB that RP is entitled to receive under section 6 of the Schedule?
Is RP disentitled to benefits for any period because he failed to provide information in a timely manner and without a reasonable explanation under sections 31, 32, 33?
Is RP entitled to $3,442 for chiropractic and massage treatment provided by the Pain Rehabilitation Clinic pursuant to a Treatment Plan dated June 14, 2004 under section 14 of the Schedule?
Did RP suffer a catastrophic impairment as defined in paragraph 2(1.1)(g) of the Schedule?
Is RP entitled to housekeeping expenses of $100 per week from May 7, 2003 and ongoing, under section 22 of the Schedule?
Is RP entitled to an attendant care benefit of $6,622.51 per month under section 16 of the Schedule?
Is RP entitled to a special award under subsection 282(10) of the Insurance Act?
Is RP entitled to interest on overdue benefits under subsection 46(2) of the Schedule?
Is either party entitled to its expenses of the arbitration?
Result:
RP is not entitled to an IRB because he did not establish that he earned any income from self-employment.
There is no information from which a weekly amount can be determined.
RP is disentitled to an IRB because he did not provide Allstate with information reasonably required to determine entitlement to the benefit and he did not have a reasonable explanation under subsections 33(1) and (2) for not doing so.
RP is entitled to the treatment costs he actually incurred.
RP did not suffer a catastrophic impairment in the accident.
RP is not entitled to housekeeping expenses.
RP is not entitled to an attendant care benefit.
RP is entitled to a maximum special award of 50% of the amount owing for treatment expenses, to be calculated and paid by Allstate in accordance with the formula as set out in subsection 282(10) of the Insurance Act.
If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
Introduction and Background
RP defected from communist Poland in somewhat dramatic fashion in 1984 when he was seventeen years old, by stowing away in the chimney of a ship bound for Canada. He arrived in Montreal and found work at the St. Viateur bagel bakery, where he learned to make authentic, hand-rolled, wood-fired “Montreal-style” bagels, and where he met his future business partner, Tony, an immigrant from Vietnam. In 1988, he and Tony moved to a town in Ontario about an hour’s drive west of Toronto. Tony designed, and together with RP built a $35,000 wood-burning oven and started a bakery, Royal Bagel, where they made and sold wood-fired bagels to retail and wholesale customers. In 1992, RP married Tony’s sister TN and started a family. The couple have three children, a daughter H aged 16, and sons P and R, aged 10 and 2. RP bought Tony out of the partnership in 1994, about the time H was born. He continued to make the bagels by hand and hired a driver to deliver them to wholesale customers. TN described herself as a housewife, stating that she helped out occasionally, packaging bagels and working at the cash, but for the most part she stayed home to raise the children and had little to do with the business. At the time of the accident, RP no longer employed a driver and worked alone at the bakery, handling all the tasks himself.
To be entitled to benefits, RP must establish, on a balance of probabilities, that he suffered an impairment in the accident, and that the accident contributed significantly to the impairment. Subsection 2(1) of the Schedule defines “impairment” as a loss or abnormality of a psychological, physiological or anatomical structure or function.
RP’s position
The position advanced on behalf of RP is that before the accident, he was a hard-working, productive and engaged husband and father who provided a good living for his family as sole owner and employee of his own successful bakery. The accident was highly emotionally traumatic, and affected RP to the extent he was unable to undertake the physical and mental tasks required to run the bakery, maintain his home, manage his financial affairs, resume his role as engaged family man, or even look after himself. As a result, he lost his business, and his psychological condition deteriorated to the point where he required round-the-clock supervision because of his abnormal, increasingly reckless behaviour.
Allstate’s theory of the case
Allstate submits RP’s lengthy delay in seeking treatment raises issues of causation and credibility. Causation, because there is no objective medical evidence in the ten-month period between the accident and RP’s first visit to Dr. Bui, a chiropractor, that documents his physical injuries or the alleged onset and worsening of his psychological symptoms and dysfunction or establishes a causal link between the accident and his alleged impairments; and, despite numerous assessments, no psychological disorder has been diagnosed to date. Credibility is an issue, because the lack of objective evidence, together with the unusual psychological symptoms displayed and the questionable veracity of family witnesses suggests the only possible diagnosis is malingering, considered not to be a mental disorder per se, but rather a type of volitional behaviour.7 Allstate theorizes that RP has manufactured his psychological symptoms for secondary gain, i.e., to support a claim for IRBs and the extended housekeeping and attendant care benefits available to insured persons deemed catastrophically impaired as a result of a motor vehicle accident.
Allstate alleges the external incentives to support a finding of malingering in this case to be as follows:
RP was unable to provide proof he earned income from his bakery in the year before the accident,8 likely because the bakery had effectively stopped operating before the accident, and little, if any, income was earned;
If the bakery closed its doors two months after the accident, as RP alleges, this was not because RP’s accident injuries prevented him from working, but because his landlord locked him out and sold the building, including the bakery and contents, to a new owner, 9 for reasons unrelated to the accident;
RP and his wife faced claims for significant back taxes and penalties from the Canada Revenue Agency (“the CRA”) because they failed to file income tax returns between 1999 and 2006; and
On March 18, 2008, RP was arrested and charged with possession and trafficking of marijuana, and hopes to mitigate the consequences of a possible conviction on the grounds that he is mentally incapable as a result of the accident.
Allstate further submits there is evidence RP may suffer from a previously undiagnosed Antisocial Personality Disorder which predates the accident and which predisposes a person to malinger.
After reviewing all of the evidence put before me, there is no question in my mind that RP is a genuinely psychologically troubled and dysfunctional individual. However, the evidence strongly suggests this was the case before the accident. I find RP does suffer a psychological impairment, but he has not established that the accident was a significant contributor – not because he is malingering, necessarily, but because the psychological impairment predates the accident and results from unrelated factors.
The accident
The details of the accident are not in dispute. It occurred just after midnight on May 7, 2003, on Highway 401 westbound near Bayview Avenue in Toronto, as RP was returning home from Montreal with his two children, H and P, then aged 10 and 3, who had gone to Montreal with their mother to visit her parents. RP was driving his wife’s car, having left his in Montreal due to a flat tire. It was raining. According to the police interview conducted a couple of hours later,10 RP was driving in the express lane at about 85-90 kilometres per hour when a tractor trailer came up on his right side and pushed his vehicle into the concrete guardrail. He was unable to steer. The car bounced off and spun around, coming to rest sideways across the lanes of traffic. The air bag did not deploy. The tractor trailer ended up upside down on the other side of the median. A second tractor trailer was able to stop in time to avoid hitting RP’s car.11 There were several vehicles involved in the accident and RP testified some people were severely injured enough to be taken by ambulance to the hospital. RP’s vehicle was written off.
Impairment due to physical injuries
There is no dispute RP suffered soft tissue WAD II flexion-extension injuries to his neck and back and a strained or sprained wrist with pain at the base of the thumb in the accident.12 I find his complaints of pain in these areas and headaches have been consistent since the accident. However, there was no compelling evidence to suggest his residual pain symptoms after August 2004 either constituted a pain disorder, or were sufficiently disabling to qualify him for the benefits he claims.
I find the accident, from a physical injury point of view, was not particularly serious for RP or his children, despite the fact that their vehicle was “written off.” Although ambulances and police were called to the scene, and others injured in the accident were taken to hospital, RP testified he and his children did not go to the hospital because of the SARS epidemic in Toronto at the time. Instead, a police officer drove them to a motel. RP called his wife TN in Montreal and she came to pick them up the next morning and drove them to a walk-in clinic in their home town, where RP’s injuries were confirmed, his wrist was casted, and pain medication prescribed. RP never returned to the clinic for follow-up or to have the cast removed. Neither he nor his wife could recall how or when it eventually came off.
There was no evidence presented at the hearing that either child was injured or required or received any treatment as a result of the accident.
As noted, RP did not seek treatment for physical injuries until March 31, 2004, ten months after the accident, when his wife TN persuaded him to see Dr. San Bui, a chiropractor in Toronto. TN testified that after the accident, her husband did complain of pain but would not see a doctor, so she attempted to alleviate his pain with herbs, oils and natural remedies used in Asian culture. Her explanation for the delay in seeking treatment was that RP did not like doctors.13 She stated he became withdrawn after the accident and spent a great deal of time in his room alone. She stated she considered this behaviour “normal for him.” TN stated she only noticed his behaviour becoming abnormal about the time she persuaded RP to visit Dr. Bui; i.e., several months after the accident. She stated the only reason she was able to persuade him to seek treatment at all was because she told him Dr. Bui was a “massage and pain doctor,” and not someone who would lock him up. She testified that RP’s greatest fear was that a doctor would diagnose him “with a crazy disorder” and he would be locked up.
A Disability Certificate prepared by Dr. Bui on April 27, 2004 indicated a diagnosis of back pain and migraine, inability to perform caregiving and housekeeping tasks, and duration of disability beyond twelve weeks because of “complicated” soft tissue injuries. Dr. Bui’s June 14, 2004 Treatment Plan indicated RP was unable to work because he could not stand or walk longer than a half hour, a comment based on RP’s subjective report. I heard no evidence to corroborate these substantial physical limitations. RP testified he tried to bake bagels after the accident but could not recreate the recipes accurately nor do the physical work involved. I find the physical tasks of baking as RP described them to be physically heavy work, and it would have been unlikely RP could have resumed them for a reasonable time after the accident due to his soft tissue injuries. 14 RP also stated he tried some construction jobs after his landlord locked him out of his bakery in July 2003, but he could not do the work. There was no evidence to corroborate this.
TN testified that after a few sessions with Dr. Bui, RP did not want to go anymore, and stopped attending.
Dr. Ato Sekyi-Otu, conducted an orthopaedic IE on August 11, 2004. His report described “present symptoms [of] headaches, low back pain, neck pain, and right wrist pain.” Despite RP’s complaints, and contrary to Dr. Bui, Dr. Sekyi-Otu observed no objective signs of any ongoing impairment due to musculoskeletal injuries, to prevent RP performing his essential tasks of employment as a baker.
I find from his report that Dr. Sekyi-Otu conducted a thorough physical examination of RP and asked a number of pertinent questions. In the absence of any objective medical or other evidence to corroborate RP’s subjective statements that pain from his soft tissue injuries prevented him from working, I place no weight on Dr. Bui’s opinion of the extent of RP’s physical disability, and prefer the evidence of Dr. Sekyi-Otu.
There was no medical evidence that RP suffered from chronic pain, other than the opinion of Dr. Mortimer Mamelak, neuropsychiatrist, who suggested for the first time at the hearing, six years after the accident, that his patient had developed a mild chronic pain disorder. This is possible, of course, but I find it unlikely in this case, given RP’s lengthy delay in seeking treatment and his unwillingness to continue with it once begun. In any event, I find there is no medical basis or reliable evidence to conclude that RP suffered any physical impairment after August 2004.
There was some speculation in early psychological reports, that one explanation for RP’s alleged cognitive and emotional difficulties was that they might have been the result of a traumatic brain injury (“TBI”) in the accident. However, there was little evidence RP hit his head in the accident. He did not mention hitting his head when describing his other injuries to the police officer who interviewed him at the scene of the accident, and the clinical notes of the walk-in clinic he attended the next day specifically note no loss of consciousness, nausea, vomiting or known head injury. 15 It was only later that RP began to tell examiners, beginning with Dr. Bui, that he hit his head on the steering wheel and may have lost consciousness “momentarily.” I find the evidence nearest in time to the accident itself to be the most reliable. In any event, as more information became available, the consensus among the psychologists and psychiatrists who attempted to assess RP, including Dr. Mamelak, who saw him seventeen times since his first visit in 2006, was that RP’s presentation, and the onset and history of his symptoms and behaviour were not consistent with the aftermath of a TBI. The lone exception was Dr. Marie Piskopos, a psychologist who assessed RP’s mental capacity to manage property under the Substitute Decisions Act, 1992 (SDA) in August 2008. However, given the 5-year gap between the accident and Dr. Piskopos’ assessment, and in light of my finding that RP did not hit his head in the accident, I prefer the opinions of Drs. Mamelak, Richard Hershberg and Lawrie Reznek, who ruled out a TBI as a cause of RP’s psychological difficulties.
Catastrophic Impairment
RP’s claim for benefits rests primarily on the assertion that he developed a psychological impairment due to the highly traumatic nature of the accident, severe enough to render him unable to work at any occupation, to require round-the clock supervision, and to qualify as a catastrophic impairment under paragraph 2(1.1)(g) of the Schedule.
Paragraph 2(1.1)(g) defines catastrophic impairment as “ . . . an impairment that, . . . in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, [“the Guides”] results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.” Diagnoses of mental disorders under this edition of the Guides are made in accordance with the DSM III-R.16
Dr. Mamelak, the neuropsychiatrist who saw RP more often than any other health practitioner in his attempts to diagnose and treat RP, did not provide a formal DSM diagnosis in his reports of June 21, 2006 and September 16, 2008. Based on his interactions with RP, who was never coherent in their meetings, and with family members, Dr. Mamelak felt he did not have enough information for a firm diagnosis, and stated only that RP appeared to be suffering from “overwhelming fear,” outbursts of anger, sleep disturbance, generalized anxiety, and a “posttraumatic paranoid illness.” He hoped a trial of antipsychotic medication would stabilize RP to the point he could be engaged in therapy.
At the hearing, Dr. Mamelak amplified his opinion to include “motor vehicle injury syndrome,” mild chronic pain syndrome, “elements of” Post-Traumatic Stress Syndrome (“PTSD”), as PTSD is described in the DSM-IV-TR, and fear of authority, including doctors. “Motor vehicle accident injury syndrome,” about which Dr. Mamelak has written a paper, 17 includes symptoms of depression, irritability, panic, anxiety, aches and pains and memory loss that he states are “virtually guaranteed” after a motor vehicle accident of significant magnitude, despite the absence of objective signs. The theory is that the symptoms result when the entire nervous system becomes more sensitized because of injuries sustained in the accident. I note this syndrome is not a recognised disorder or diagnostic category in either the DSM-III or IV to date. On the basis of his symptoms and behaviour, Dr. Mamelak opined that RP met the criteria for catastrophic impairment under the Schedule.
I agree with Allstate’s experts, Drs. Hershberg and Reznek, that there has been, at least up until the hearing, no diagnosable mental or behavioural disorder in this case. I find there are several reasons for this. One, the significant nineteen-month gap between the motor vehicle accident and the first assessment by a mental health professional, psychologist Dr. D. Prendergast, on October 8, 2004, a period during which no objective reliable information about onset or development of symptoms was available. Two, RP either would not or could not cooperate with attempts at clinical evaluations or objective psychometric testing, or gave non-responsive, irrelevant, even nonsensical answers to queries, thus limiting the information required for a firm diagnosis. Three, RP’s bizarre behaviour and symptoms during assessments did not conform to any known DSM-IV diagnosis. Four, RP’s presentation during assessments and his behaviour under surveillance were not consistent. Finally, the various family members who brought him to different appointments – his wife TN, his daughter H, his sister-in-law HN, his in-laws – were not a source of consistent, reliable or, at times, truthful information.
Faced with this information, Dr. Hershberg, who conducted the Psychiatric Evaluation portion of a Multidisciplinary Catastrophic Impairment Determination assessment under section 42 of the Schedule on February 5, 2008, was unable to determine whether RP met the criteria for catastrophic impairment under the Guides at that time. Nine months later he carried out an extensive file review that included surveillance evidence conducted on behalf of Allstate between March and November 2008. This prompted him to conclude:
[RP’s] documented history, x-ray findings, mental status examinations, and surveillance reports all strongly indicate that his behavior is a conscious manifestation of what he likely believes is the way in which a head injured individual would present himself. The differential diagnosis being one of malingering with hoped for financial rewards versus a factitious disorder where the goal is more one of being loved or cared for.
In the consensus opinion of the Multidisciplinary CAT assessment, Dr. Hershberg concluded: 18
RP’s post-accident symptoms are inconsistent with the accident. There is no evidence that the motor vehicle accident resulted in any genuine impairment. RP’s condition is attributed to malingering or factitious disorder. The motor vehicle accident was the event that offered the opportunity for RP to misrepresent his condition for secondary gain.
Malingering – the intentional production of false or grossly exaggerated symptoms motivated by external incentives – is not considered a mental disorder and is, by definition, volitional behaviour.
Dr. Reznek testified that malingering is not a diagnosis, but in fact the absence of one. He further testified that the determination of a diagnosis, or the existence of a mental or behavioural disorder in accordance with the DSM-IV, is an indispensable first step in assessing catastrophic impairment using the Guides. If there is no diagnosable disorder, there can be no catastrophic impairment. And, submits Allstate, without an impairment, there is no entitlement to benefits.
I accept Allstate’s argument and Dr. Reznek’s uncontradicted opinion, but only to the extent they apply to catastrophic impairment as the Schedule defines it, as opposed to impairment generally, as it is defined under subsection 2(1). This is because paragraph 2(1.1)(g) of the Schedule specifically states that a catastrophic impairment: 1) must be caused by an accident; and 2) must be an impairment that is due to a mental or behavioural disorder in accordance with the Guides. That wording is unambiguous – there must be a diagnosable disorder, and one which accords with the DSM, before a determination of catastrophic impairment can be made.
Without a diagnosable mental or behavioural disorder, therefore, there can be no finding of catastrophic impairment in this case.
That is not to say that RP does not suffer a “loss or abnormality of psychological function,” as impairment is defined under subsection 2(1) of the Schedule. It was not explained at the hearing, despite the testimony and reports of several psychiatrists and psychologists, why either a finding of malingering by a qualified expert, or the lack of a DSM diagnosis, would necessarily preclude the co-existence of true physical and psychological symptoms, which could constitute an impairment. I find the Guides themselves distinguish between a disorder and an impairment, and allow for a finding of impairment in the absence of a DSM diagnosis, as evidenced by this passage under the heading “Diagnosis of Impairment:”
The Diagnostic and Statistical Manual of Mental Disorders, Revised Third Edition, commonly known as DSM-III-R, is a widely accepted classification system for mental disorders. It is similar to another system, the International Classification of Diseases (ICD), which also is in widespread use. The criteria for mental disorders include a wide range of signs, symptoms, and impairments. Most mental disorders are characterized by one or more impairments. However, an individual may have a mental or behavioral impairment without meeting the criteria specified in DSM-III-R or the ICD. [emphasis added].19
I do not disagree that the criteria for malingering20 as set out in the DSM-IV-TR are present in this case – three of the four, at least, arguably are, and must be taken into account as factors in assessing the credibility of RP and his family. My point is, neither the fact that RP may be malingering, nor the lack of a DSM diagnosis, precludes an enquiry into whether RP also suffers from genuine psychological symptoms that amount to an impairment under the Schedule. I find this enquiry to be necessary.
Psychological impairment
Credibility concerns aside, and there are many, there is evidence of genuine psychological distress that would reasonably cause some of RP’s reported symptoms and dysfunctional behaviour in the six years since the accident, and which I find amount to a psychological impairment, in the sense of a loss or abnormality of psychological function as the Schedule defines it. However, I find RP’s psychological difficulties predate the accident and it was these difficulties, and not the accident, that led to the eventual loss of his business and the consequences that have flowed from that loss.
Chapter 14 at page 294 of the AMA Guides contains criteria for evaluating levels of impairment that result from mental and behavioural disorders and the Schedule requires their use to determine catastrophic impairment. They are also useful for assessing mental or behavioural impairment generally, as they identify five levels of impairment, increasing in severity from Class 1, “no impairment,” to Class 5, “extreme impairment” in four aspects of functioning – activities of daily living; social functioning; concentration, persistence, and pace; and deterioration or decompensation in worklike settings.21
The Guides describe the functional areas and give examples of impaired functioning in each area:
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities . . . the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. . .
Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals . . . [it] includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation . . .
Concentration, persistence, and pace . . . refer to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete everyday household tasks. . .
Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers . . .
Despite my concerns with the reliability of information provided by RP and TN to third parties since the accident and at the hearing itself, and despite the volume of conflicting, disputed and irrelevant lay, medical and surveillance evidence, I find there is sufficient credible evidence on a balance of probabilities to conclude that RP suffered from varying levels of impairment in the last three of the four aspects of functioning described above. I find he exhibited poor emotional control; inability to manage his finances; inability to manage many aspects of his business or interact appropriately with others as one would reasonable expect of a person who runs his own business; poor judgment; social withdrawal; and reckless and antisocial behaviour. I find these impairments existed both before and after the accident.
I find the evidence indicates RP’s impairments reflect an inability to deal with or adapt to stressful circumstances, what the Guides refer to as “decompensation,” which was due to the cumulative effects of marital strife, a failing business, significant disputes with his landlord and public authorities such as municipal health inspectors and the Canada Revenue Agency, and run-ins with the law, which began before the accident and continued afterwards.
RP and his family attribute his psychological difficulties to the psychotraumatic nature of the accident. Dr. Mamelak and Allstate’s psychiatric assessors, Drs. Hershberg and Reznek, agreed that the circumstances of this accident would have been highly psycho traumatic.
I find RP’s descriptions of the emotions provoked by the accident were consistent. In a statement taken two months after the accident on July 15, 2003 by Bill Dobson, an Allstate adjuster,22 RP described how he hit the concrete median almost head on, spun around, and hit the median again, and how he feared for his children because he was unable, at first, to open his door.
At the hearing, RP testified that he saw the second tractor trailer bearing down on his stopped car and was terrified because he could not open the door to free his children in time: “I saw a bloody devil coming at me, with red eyes, and I could not open the door and I stared at him and he got scared and moved away, I was trying to open [my son’s] door, I was outside the car, no shoes, I was pulling the door, he was coming like that at me, what was I supposed to do, I did not get the door open, another door got open, and a fireman got the children out.”
RP’s daughter H, ten years old at the time of the accident, recalled her father being unable to open the car door on her brother’s side, that she was covered with shattered glass, and she and her brother were shaken up and crying. Her testimony confirms the frightening and upsetting nature of the incident.
Psychological impairment - evidence in the first year post-accident
Despite the testimony of RP and his daughter, however, there was no evidence of any psychological effects until many months after the accident. As noted, there was no evidence that either child was injured or required treatment, or that RP, or TN for that matter, had any concerns in that regard, 23 and RP himself did not seek treatment until TN made him go to Dr. Bui for soft tissue therapies in March 2004. There is no evidence that Dr. Bui noted any psychological symptoms, and TN testified that in fact she did not discuss any with him, because Dr. Bui was not a “doctor for the head.”
I find neither TN nor H noticed any changes in RP’s behaviour until several months after the accident. TN testified that immediately after the accident, RP was very quiet, kept to himself and stayed in their bedroom, drawing. She stated, however, “I thought that was just normal for him,” and that she assumed “everything was fine.” During this same period, evidence from Allstate’s files indicated RP was actively, even aggressively engaged in seeking compensation from them for his wife’s vehicle, damaged beyond repair in the accident. There is no indication in the July 23, 2003 Allstate statement that RP had any psychological symptoms. I find there was nothing his family considered unusual in RP’s behaviour in the first several months after the accident.
TN stated that it was not until several months after the accident that her husband became increasingly withdrawn, unresponsive, and forgetful, spent time alone in his room, talked to himself several times a day, and was either quiet and unhappy most of the time, or yelling and throwing temper tantrums, sometimes throwing and breaking objects. (Only two incidents of the latter behaviour in the five-year period since the accident, both four years later in 2007, were described.) TN emphasised that RP was never violent towards anyone in the family, and that when it came to his children, he loved them very much and was “very good.”
TN testified RP began to complain of pain, headaches, and nightmares 2-3 times per week, beginning about 2-3 months before she took him to see Dr. Bui in March 2004, which would make the alleged onset of noteworthy symptoms about January 2004, eight months after the accident.
Even RP’s daughter H, who was ten years old at the time, testified that she did not notice any change in her father’s behaviour until the September after the accident, when she stated he appeared to lose interest in her and her schoolwork. He no longer helped her with her homework every day, or school projects, or took her to movies or the park, or bought her presents as he had done before the accident. She felt lonely and sad because of his unresponsiveness. I find it reasonable that RP would not feel like engaging in these activities if he was in pain, had a headache or was not sleeping well. I agree with the opinion of Dr. Reznek that this would be consistent with the after-effects of a whiplash injury. There is no evidence this reaction was an indication of anything more.
I find none of this testimony establishes that RP suffered any psychological symptoms his wife and daughter would consider unusual, in the first five to eight months after the accident, and I accept the uncontradicted evidence of Allstate’s experts, that the late onset of pronounced and disturbing psychological symptoms and alleged behavioural changes, first observed in August 2004 and described as “bizarre,”24 is not consistent with the expected psychological sequelae to a traumatic accident, such as symptoms of PTSD, a driving phobia – even a potential TBI. There was no evidence RP suffered from symptoms corresponding to these conditions, or any symptoms unusual for him, in the several months after the accident. It was only much later, beginning in August 2004, that obviously dysfunctional behaviour was observed by medical professionals.
That is not to say RP was without symptoms in the year after the accident. He testified he felt tired and depressed in May 2003 and gave up his business at that point, because he could not bake bagels, although he paid his rent for the month of June. He stated his landlord changed the locks and locked him out of the building in early July. He stated his landlord never told him why. RP and TN both maintained they were never able to retrieve any of his equipment, including the $30,000 wood-burning oven he built with his partner Tony when they started the business in 1988, or any of his business records, which they claimed remained in the basement of the building. The landlord later sold the premises to a new owner who operates a bagel bakery under a new name. Apparently, RP never took any action against the landlord, and testified that “no one would have been able to do that [take his business from him] to him before.”
I find there is no evidence RP’s landlord locked him out of his bakery and effectively sold his business out from under him, simply because all of a sudden RP could not bake bagels. It is a very unlikely scenario. TN testified they did not get along with the landlord and in particular were having difficulty getting him to agree to pay for needed improvements required by the municipal health inspector before the accident. There is ample evidence RP’s bakery was not doing well, and RP had difficult dealings with customers, municipal health inspectors, and the Canada Revenue Agency, as well as a strained relationship with his wife, before the accident.
These will be discussed in more detail below; suffice it to say at this point that I find these difficulties, and not the accident, were more likely than not responsible for depression and anxiety, which appear to be the only psychological symptoms RP suffered in the year after the accident, and which I find would likely explain other symptoms such as sleep and mood disturbances and cognitive impairments he claimed.
Psychological impairment – one year after the accident
There is no dispute that RP presented as impaired in his psychological functioning to those outside his family, beginning over a year after the accident. Steve Cooper, an independent adjuster investigating RP’s claim on behalf of ING, recalled his interview with RP at RP’s lawyer’s office on July 13, 2004.25 Mr. Cooper stated he found RP’s behaviour and his casual and indifferent responses, as well as non-responses to his questions unusual, and he had to probe to get the information he needed. He recalled that RP became increasingly agitated, stood up, yelled at him, slammed both fists on the table and stormed out. He returned eventually to complete the interview. Mr. Cooper was so shocked by RP’s behaviour he was able to recall it clearly five years later.
Dr. Marie Piskopos, a neuropsychologist and certified Capacity Assessor under the SDA, accurately summarized in her August 18, 2008 report the behaviour RP presented to virtually every psychological assessor26 beginning with Dr. Prendergast in October 2004:
[RP] did not engage with the assessment process and manifested very bizarre behaviours during their individual attempts to assess him. These behaviours included, but were not limited to, verbal perseverations, staring, stamping his feet, refusing to answer questions, getting up and leaving the examining room when being assessed, not wanting to return to the office, manifested phobia about needles, removing his clothing in a public place because he was warm, agitation, mumbling in Polish, hearing knocking on the office doors when being assessed when in reality no one was knocking, and so forth.
She herself described RP’s behaviours and interactions during their session as regressive, childlike and bizarre, and, recorded that when asked questions, he either did not respond, refused to respond, or gave a response unrelated to the question.
I note RP behaved in a similar fashion in the course of his testimony, over two days, at the hearing. There was less of the more bizarre behaviour observed by previous assessors, although he became agitated and angry at one point during the hearing, pacing, shouting and gesticulating. On another occasion he abruptly rushed out to the restroom adjoining the hearing room, announcing he needed to eat his lemons. (He did return). At one point he appeared to ignore the proceedings entirely and scribbled in his notebook about matters unrelated to the hearing.27
RP was nevertheless able to testify coherently on select, concrete subjects (the actual tasks involved in baking bagels, for example), and display a wry sense of humour. When asked, his explanation for why he appeared better able to cooperate and engage in the hearing process than in previous psychological assessments, was that he realized after his wife returned from Vietnam with their youngest son in the spring of 2008 that he needed help and was not proud of his past behaviour or things he had done. He felt he had lost the love of his children, which had always “kept him going.” He also said he realized he should cooperate with Dr. Mamelak’s attempts to treat him, because he liked and trusted him and realized he needed his help.
Allstate’s take on RP’s change in behaviour was that, having recently seen the surveillance videos of himself engaging in normal day-to-day activities such as driving and shopping in 2007 and 2008, which TN maintained RP did not and could not do, respectively, and after finding himself the subject of criminal charges, RP had no choice at the hearing but to try and come up with a believable explanation for the discrepancies. This is not an unreasonable position on Allstate’s part given the numerous outright lies and half-truths told by the couple over the years to Allstate representatives, assessors and at the hearing. However, given the straitened circumstances to which his life has been reduced, I find RP’s acknowledgement of what he has lost and that he needs help, to be a reasonable and realistic explanation for his efforts to cooperate at the hearing.
I find support for this point of view in the report of Dr. John Gilman, a psychologist who twice attempted to assess RP at his counsel’s request (once at RP’s home with Mr. Blott, when RP “hid and refused to come to the door,” and the second time successfully, in his office), and who reported on March 7, 2007 28 that RP’s “bizarre behaviours in clinical interviews with health professionals involving paranoid and delusional like behaviours . . . suggest a notable loss in mental and emotional control that preclude psychological assessment with [standardized tests] . . . and suggest anxiety and depression.” Dr. Gilman felt that RP appeared “unaware of the necessity for him to participate in the medical legal system to have his injuries and losses sustained addressed.” I find this assessment to be accurate, and that it further casts doubt on Allstate’s malingering theory.
Although RP did not specify, I find, based on evidence presented, that what he was likely “not proud of” were speeding violations, sometimes with the children in the car; a break and enter charge in August 2008, and being discovered by a police officer in a parking lot, asleep in his father-in-law’s vehicle containing 400 marijuana plants on March 18, 2008, an incident for which he faces serious criminal charges. His explanation for having broken into a home in Mississauga through a basement window in the middle of the night, was that he was looking for his sister-in-law’s dog, who had gotten away from him when he took him out of the car to do his business on his way home from Montreal. Regarding the marijuana plants, RP testified he did not know what they were, or how the little “trees” got there, and explained he had been in the company of an unemployed Vietnamese gentleman his family had advertised for in a newspaper, to take him to medical appointments and keep him occupied. According to RP, this “minder” allegedly left him alone in the car with the plants on the day he was arrested, and has not been seen since.
There was no mention by TN, HN or H, the only family members to testify, that they or anyone else advertised for or hired such a person. I find it implausible that TN, at least, would not have known about such an arrangement if it in fact existed, in which case her failure to mention it at the hearing is surprising in light of her claim that RP requires round-the-clock supervision. This is just one example of facts in this case that just do not “add up” and reflect poorly on the credibility of RP and TN overall.
The lack of believability of RP’s explanations led me to two findings: one, the explanations are so childish and implausible I do not find them to be of the type I would reasonably expect to hear from a “normal” adult witness in complete possession of all his mental faculties, even a potentially dishonest one. In other words, I find no reasonable, mentally healthy person, even an untruthful one, would offer these explanations and expect them to be taken seriously. Two, questionable mental capability aside, I find RP is not above making up stories when required to provide explanations. I do not agree with Allstate’s suggestion, however, that a propensity to lie and mental difficulties are necessarily mutually exclusive.
Although RP was more cooperative and coherent overall at the hearing than he had been during almost all assessments, or at the pre-hearing, for that matter, I would not consider his behaviour at the hearing, in terms of emotional volatility, self-control, the exercise of judgment, the ability to behave appropriately according to context, and the ability to anticipate the consequences of his behaviour, compared to what one normally sees in such a context, as “normal.” I found his behaviour to be that of a troubled and dysfunctional person.
I agree with the opinion of Dr. Piskopos, that RP is not capable of managing his affairs. Based on a review of previous medical assessments, her own observations and an interview with his wife, Dr. Piskopos determined RP did not pass the legal test to manage property decisions and handle finances independently under section 6 of the SDA. 29 The test reads as follows:
- A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.
Accepting the information before her as “reality-based,” i.e., taken at face value, and the fact that RP did not and would not produce any information about his financial status, Dr. Piskopos concluded:
. . . there appears to be compelling evidence that [RP] cannot take responsible steps to manage his financial matters at this point in time. Whether this behavioural presentation is organically caused or functionally based is independent of the fact that he has not and will not meaningfully engage to handle financial matters relating to property and take financial responsibilities as he did premorbidly. This has been the situation since 2003 and has not changed since that time. [emphasis added].
As Dr. Piskopos pointed out at the hearing, a diagnosis is not required under the SDA for an assessor to determine whether a person has the mental capacity to handle finances. Nor did she concern herself with the underlying reason. Although I find Dr. Piskopos was misinformed on a number of points, and deliberately so on some – she was not aware, for example, that RP was able to, and did, drive and shop on his own, because TN did not tell her so (“she did not ask”) – I agree with the basis of her opinion, that RP’s refusal to “meaningfully engage to handle finances matters . . . and take financial responsibilities . . .,” without regard to the consequences of his behaviour for himself or others, means someone else must take over that responsibility. On that basis she found RP mentally incapable.
Refusing to accept adult responsibilities is not, in my opinion, “normal” behaviour as any ordinary reasonable person would understand it. The simple refusal to engage in activities of a normal adult life, and in the sustained fashion RP has done so, over several years, regardless of the reason for it, is not “normal,” and itself indicates moderate to marked psychological impairment.
As Dr. Mamelak opined, RP has jeopardized his chances of ever returning to a normal family or working life. I find this to be an indicator of psychological dysfunction.
I find that RP’s failure to file income tax returns or pay income taxes between 1999 and 2004, for which no explanation whatsoever was provided, and his inability to deal with the resulting involvement of the CRA, are further examples of his financial irresponsibility/incompetence. It also indicates this irresponsibility and incompetence predates the accident by several years. For a purportedly successful business to simply stop filing returns or pay taxes for a number of years, without explanation, is not a normal course of events.
The failure to file returns or remit taxes led to an audit by the CRA, communicated to RP by way of a letter dated September 30, 2003, four months after the accident. In the letter, the CRA went so far as to impute significant income to RP and his wife, with potentially hefty tax consequences and penalties. There was no evidence about whether this was the first notice to RP and TN of the impending consequences of not filing tax returns. This seems unlikely, as they failed to file returns beginning in 1999.
TN categorically denied that the CRA audit, the imputing of a high level of income and corresponding tax liability, and the threat of stiff penalties, would be a source of stress for RP, a denial I find preposterous under the circumstances. Had the CRA followed through, it would have ruined the family financially. Furthermore, as discussed above, TN’s evidence was that she did not even notice any unusual psychological symptoms in RP until eight months after the accident, which would be after the CRA’s September 30, 2003 letter. I find it much more likely that RP’s symptoms developed in reaction to the CRA’s audit than to the alleged trauma of the accident, and I find that TN deliberately attempted to downplay the consequences of the tax audit, to make it seem more likely that the accident was a significant contributing factor to her husband’s mental condition.
Not until late 2005 did RP and TN retain a tax lawyer, Mr. J. D. Byote, to assist them in resolving these matters with the CRA. Mr. Byote, a forthright individual, testified that RP was evasive, contradictory, and generally very difficult to deal with, and had “the attention span of a gnat.” He testified RP brought him a box of business documents which were later taken away by the CRA. He stated RP told him he did not have an accountant. From Mr. Byote’s description, I find these were the same business documents Allstate has been requesting from the beginning of RP’s claim for IRBs, and which RP told Allstate he was unable to provide because he was unable to get them out of the bakery after his landlord locked him out in July 2003. TN stated the same at the hearing. I find they both lied about the existence of these business documents. I further find RP lied to Mr. Byote about not having an accountant – TN testified that RP had always had an accountant for his business. Mr. Byote testified that he had to turn to TN for coherent instructions, and the couple’s tax situation was eventually resolved in January 2009.
I find Mr. Byote’s evidence significant because it corroborates RP’s inability to concentrate and/or refusal to deal with stressful circumstances (“decompensation” as defined in the Guides) and is yet another example of RP’s and TN’s propensity to either lie outright or withhold important information when they feel justified in doing so for reasons not explained in this proceeding.
With respect to RP’s post-accident ability to engage in activities of daily living and to function socially, two of the four functional categories in the Guides noted above, there is disagreement among the experts. Dr. Mamelak accepted RP’s symptoms as genuine and attributed his functional limitations to “overwhelming fear,” outbursts of anger, sleep disturbance, generalized anxiety, elements of PTSD, a mild chronic pain syndrome, “posttraumatic paranoid illness,” and a fear of authority, including doctors. 30
Allstate’s experts, Drs. Hershberg and Reznek, on the other hand, based their opinion that RP was not impaired on their conclusion that his symptoms and behaviour were not genuine. While Dr. Hershberg agreed that RP’s presentation, if genuine, “would reflect behaviour, representative [sic] marked impairment in multiple realms of functioning (ADL, socialization, adaptation)”, he concluded that “his resultant disability state is not considered to be motor vehicle related, secondary to volitional elements (malingering and/or factitious disorder).” 31
I agree that these experts initially had reason to suspect malingering based on the first and third criteria for identifying the condition listed in the DSM-IV at page 739, which states:
Malingering should be strongly suspected if any combination of the following is noted:
Medicolegal context of presentation . . .
Marked discrepancy between the person’s claimed stress or disability and the objective findings
Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen
The presence of Antisocial Personality Disorder
Dr. Reznek believed RP’s inability to engage in or correctly complete the two psychological tests which Dr. Prendergast attempted to administer in October 2004, the Rey and TOMM memory tests, was further evidence of malingering. He disagreed with Dr. Prendergast’s opinion that RP’s “level of emotional distress and problems” were simply too extreme for him to participate properly, and felt RP was not motivated to properly complete the tests because he wanted to portray himself as more cognitively disabled than he really was. Dr. Mamelak, on the other hand, agreed with Dr. Prendergast that RP was not able to engage in the tests, and this was not per se an indicator of malingering, nor was it fair to draw such a conclusion. He felt more information was required, and RP should first be confronted with the allegation that he was malingering, before it could be determined that he was.
Dr. Reznek and Dr. Hershberg were more certain than ever that RP was malingering after viewing the surveillance evidence and considering RP’s testimony at the hearing. According to Dr. Reznek, if RP could drive, present evidence at arbitration, focus and “wisecrack,” get out of bed, manage his personal hygiene, go for coffee, maintain relationships at home, including intimate relations with his wife,32 go for walks, and drive his children to school, he was not significantly impaired under any of the AMA guidelines, and this evidence satisfied the second of the four criteria for malingering. Dr. Reznek also felt RP’s periods of normalcy or lucidity, corroborated by TN’s evidence that sometimes her husband was “normal” and sometimes he was not, as further evidence of malingering because the symptoms and behaviour RP displayed during assessments would not just “come and go” if they were real.
Dr. Mamelak, who saw RP on more occasions than any other professional, although there were often lengthy gaps between visits, and who admittedly did not get a full or accurate picture of RP’s pre- or post-accident symptoms from family members, was not deterred in his belief that RP nevertheless suffered from genuine mental and behavioural impairments. I agree. I find Allstate’s experts were so preoccupied with their conclusion that RP was malingering, particularly after they reviewed surveillance videotapes taken in 2007 and throughout 2008, and so tenacious in defending that point of view in the hearing, that they did not adequately address the question of whether RP might also be genuinely functionally impaired for psychological reasons.
Causation – evidence of pre-accident impairment
However, there is no doubt in my mind that RP was functionally psychologically impaired before the accident, and the accident itself contributed very little, if anything to his later psychological impairments.
Although it was RP’s evidence that he did not know why his landlord locked him out of the bakery and kept all his equipment, his position at the arbitration proceeding was that he lost his bakery business because he was unable to bake bagels after the accident and unable to keep it going due to accident-related psychological impairments.
The evidence does not support this position. On the contrary, I find the available evidence indicates both RP and his business were in difficulty before the accident.
For example, RP was not able to provide any proof that he earned any income from the bakery before the accident (discussed below under “Entitlement to IRBs”). CC, owner of a specialty food shop and a wholesale customer of RP since the bagel bakery opened in 1988, testified on behalf of Allstate that RP had consistently supplied him with bagels over the years, even after RP’s partner Tony left the business, and the product was excellent, but the supply was erratic since 2001, and this reflected poorly on CC’s business. CC testified that RP kept odd hours and often closed his bakery by 10:00 a.m., sending his customers to CC’s establishment for bagels. CC’s customers complained RP was rude. According to CC, RP’s lack of customer service skills earned him an unfortunate (and potentially offensive) nickname descriptive of a short and dismissive manner with customers.
CC also stated RP always delivered the bagels himself and insisted on being paid in cash, an inconvenience to CC. CC testified that in the 15 years he had done business with RP, he had never had more than one very brief conversation with him, which he found unusual, and RP never told him he had been in a car accident, which I find unusual given their longstanding business relationship and the effect on CC’s business of RP’s inability to continue supplying bagels.
When confronted with CC’s evidence about his antisocial behaviour at the hearing, RP did not deny that he behaved antisocially to his customers, but attributed it to the fact that “maybe I worked too hard.” Although counsel for RP argued that CC’s evidence should not be accepted because CC was a competitor and therefore adverse in interest to RP, I find this makes no sense so many years after the fact. I found no reason to disbelieve CC’s evidence and accept his testimony about the desultory state of RP’s business before the accident and his assessment of RP’s behaviour towards customers and business associates as credible and consistent with the testimony of MR, the municipal health inspector, who also dealt with RP on a professional level before the accident. I find RP’s behaviour fits within the Guides’ description of impaired social functioning and deterioration/decompensation in a work setting and would indicate a moderate impairment in both categories that existed before the accident.
MR testified she found a number of health infractions in the course of a routine inspection of RP’s bakery in December 2002, and she insisted RP remedy them. Despite her persistent visits to the bakery to follow-up, RP did not remedy all of them to her satisfaction and she issued two “tickets” in January 2003 which eventually led to a court date of May 13, 2003. RP missed the date and was convicted and fined $520 as a result. More importantly, MR testified she found the bakery closed when she attended on January 10, February 13 and 26; March 3, 6, 10 and April 4, 2003; on one occasion, she confronted RP attempting to leave by the back door without her seeing him. To be fair, she did observe him serving customers on January 31, 2003.
MR stated she “stopped chasing” RP by the end of April because she understood from what the landlord told her on April 26 that the business was closed down. I found MR to be a straightforward, conscientious, perhaps even somewhat officious inspector and witness, and I had no reason to doubt the truthfulness of her evidence. I further find her uncontradicted evidence and that of C.C., indicates the bakery was operating very sporadically in early 2003, and more likely than not on a cash-only basis. There was no evidence to suggest otherwise.
For his part, RP testified he felt MR was relentless and unreasonable. He did not deny that he signed an agreement with his landlord that he would vacate the premises by April 26, 2003; he said he had signed a “number of such agreements.” He further testified he “had to move his business after January to Toronto,” because his landlord was “not cooperating” with him, and he was keeping only his wholesale customers. This contradicted TN’s testimony that a year earlier “they” (she and RP, presumably, although this was not consistent with her testimony that she was not involved with the bakery before the accident) had renovated the bakery to focus more on retail customers. I find there was no evidence that RP had any wholesale customers other than CC, evidence that could easily have been provided if it existed.
I conclude from this evidence that RP’s business was, at the very least, on shaky grounds since at least 2001, and possibly earlier given the unexplained non-filing of tax returns since 1999. I find it more likely than not the bakery had ceased operating in any truly remunerative sense by April 2003. I further find TN, and to a lesser extent RP, deliberately attempted to conceal or downplay this reality at the hearing.
I find they also attempted to downplay other significant stressors. According to the Guides, repeated failure to adapt to stressful circumstances can lead to mental or behavioural impairment.33 There was ample evidence of marital strife and separation before the accident, which both TN and RP attempted to deny at the hearing.
In December 2002, TN applied for her own policy of insurance on her own vehicle, and told Allstate she was separated from her husband and she was the only driver of her vehicle. She provided her home address. RP confirmed the couple were going through a bad time, TN wanted more independence, and she did not want RP driving her vehicle. At the hearing, TN vehemently denied that she and RP had ever been separated, and stated that in her culture, when a couple says they are “separate”, it means they are “fighting”, not that they are actually separated, and “when they fight, they leave.” She testified she and RP were always fighting, but never separated. In the absence of any expert evidence about cultural norms, I reject this explanation. I find it simply disingenuous. I find that at the very least, by TN’s own admission, the couple were “fighting” to a significant degree.
Either TN lied to Allstate so that she could get her own insurance, or she and RP really were separated. I find it more likely, given the preponderance of evidence, that the couple were separated. RP testified he told Allstate in the statement taken on July 15, 2003 that he had been separated from his wife “for the past few months” and that he lived at the bakery, giving that address as his residence. He also advised Allstate he had his own insurance policy.
A year later, in the July 13, 2004 statement taken by ING’s adjuster, RP reiterated that he was separated from his wife on the day of the accident but not legally separated, and described the “little apartment” he had at the bakery where he claimed he often stayed.34 He said he just decided to go there for a few months to take a break. TN denied this was ever the case.
At the hearing, RP denied he had ever lived apart from TN, and stated he felt compelled to tell ING he lived at the bakery because he had lied to them when he listed the bakery as his home address for his insurance policy, and he was afraid he would get into trouble if ING found out. He expressed remorse for this.
TN insisted at the hearing, and to assessors who specifically asked about it, that her marriage was a happy one. She testified she did not tell Dr. Mamelak about any marital difficulties, because “it was none of his business.” Dr. Mamelak testified RP told him he felt isolated and excluded by TN’s family because they all spoke Vietnamese. TN denied this, stating her family spoke English when RP was present, because otherwise it would be “rude.” However, RP testified his father-in-law did not speak English. TN’s English language skills were so poor she required an interpreter at the hearing and she testified she would rely on her daughter H when H was as young as ten to read and answer letters for her, sometimes keeping her home from school to do so. Yet English was the only language in which she could communicate with her husband. On the whole, I find it more likely than not that the marriage was a stressful one.
I further find TN’s portrayal of a happy normal pre-accident life with her husband to be deliberately untrue. She supported her testimony that RP worked very hard and provided a good living for her and their children from the time he started the bakery with her brother Tony in 1988 until the accident, with newspaper clippings heralding their hard work and early success. These articles dated from 1988 and 1991, more than ten years before the accident, and I found them too remote to be relevant or helpful in assessing RP’s pre-accident psychological functioning. I find a more reasonable period of time for an accurate assessment would have been in the year or two leading up to the accident. However, TN volunteered very little information about RP’s business and family life during that time frame, and I find that significant. She insisted she and RP enjoyed a happy and stable marriage and family life, RP was particularly engaged with the children, and the bakery provided them with a good living.
TN’s testimony was supplemented by video footage of a vacation she, RP and H took with her (TN’s) parents in Vietnam in 1998, H’s second and third birthday parties in 1995 and 1996, and various other photographs. Again, much of this evidence predates the accident by several years, and I find it unhelpful for that reason.
As discussed, cross-examination, documents and the evidence of other witnesses left a very different impression of RP’s pre-accident life, which was revealed to include marital strife, business and financial difficulties, and trouble with the law, all of which I find to be at odds with the positive image of RP’s pre-accident life TN, in particular, attempted to portray at the hearing.
A final important example that belies TN’s version and which I find indicates that RP’s propensity to engage in antisocial or criminal behaviour is nothing new, was provided by KW, head of security for a membership warehouse that sells bulk household and food items at wholesale prices. KW testified that he personally apprehended RP shoplifting at his store in August 2001, after following him around the store for over an hour. I accept KW’s evidence that this was not a minor incident and RP went about stealing relatively expensive items, such as steak and children’s DVD’s in a deliberate and methodical way, by concealing them in packaging for less expensive items. RP was charged but according to RC, a private investigator who looked into the matter on Allstate’s behalf, the charges were “diverted” from the criminal justice system. I further accept KW’s evidence that the discovery of RP’s shoplifting and his banning from the store marked the end of a series of such incidents at that location.
Dr. Reznek suggested that this occurrence, together with other evidence presented at the hearing, suggested that RP might suffer from Antisocial Personality Disorder, a disorder that predisposes the sufferer to engage in malingering behaviour, and the last of the four criteria that would support a finding of malingering under the DSM-IV-TR. Perhaps. But I agree with Dr. Mamelak that not enough is known about RP’s personal history for any reliable diagnosis to be made at this point.
The best evidence in favour of RP as “normal” or untroubled before the accident was that of his daughter H, who described her relationship with her father before the accident as “very tight.” I do not doubt her testimony that she felt lonely and sad because of his unresponsiveness after the accident.
However, I did not find her testimony helpful regarding the alleged changes in her father’s behaviour, not because she was untruthful, but because I was not persuaded her recollection of events six or seven years ago when she was only ten years old, was particularly accurate or reliable. As with the testimony of her mother and aunt, dates, times and details were vague, and a great deal of questioning and prompting were required to obtain responses. She provided no account of how the family spent the summer of 2003. Also, I find the photographs of RP and herself in connection with a school play, a visit to the zoo and another unknown location predated the accident by several years, except for one, a photograph of a Grade 3 school project in 2001 which RP helped build.35 A single snapshot and the recollection of a person who was only nine years old in the year before the accident, is simply not enough to counteract the weight of evidence I find clearly establishes that RP was psychologically impaired before the accident.
Furthermore, I find Dr. Reznek’s alternate explanation, that RP would be less likely to engage in activities with his daughter after the accident if he were suffering from headaches and pain, to be reasonable.
Entitlement to IRBs
To be eligible for IRBs up to 104 weeks after the motor vehicle accident, under section 4 of the Schedule, RP must establish on a balance of probabilities that he sustained an impairment as a result of the accident, and the impairment rendered him substantially unable to perform the essential tasks of his employment. The accident need not be the sole cause of the substantial inability, but must have materially or significantly contributed to it.
Two years after the accident, the test for entitlement changes. The insured person must establish that there is no work for which he would be reasonably suited by education, training or experience. If RP meets this test, he would be entitled to the greater of the net weekly IRB calculated, or $185.36 As I understand these provisions, if RP could prove any pre-accident employment income at all as prescribed by the Schedule, and if he met all other eligibility requirements, he would be entitled to $185 per week from two years after the accident.
As a self-employed individual, RP must first show that he earned income from his business in the 52 weeks preceding the accident.37 For purposes of the Schedule, a person’s income from self-employment is determined “in the same manner as the person’s profit from the business in which the person was self-employed would be determined under the Income Tax Act (Canada) and the Income Tax Act (Ontario),” but without taking into account such items as capital cost allowance, capital gains or losses or other tax deductible losses; in other words, under paragraphs 62(1)(a),(b) and (c) of the Schedule, income from self-employment for IRB purposes is determined differently than earnings from a business under the Income Tax Act. Furthermore, an insurer “is not bound by whatever was ‘reported or determined in accordance with the Income Tax Act,’ nor is it bound to rely on any tax return for the purpose of determining an income from which to calculate an IRB.” 38 I find Allstate was entitled to original source business documents from Royal Bagel before it was required to retain an accountant to calculate an IRB, and this essential information was, as we have seen, available and never provided.
Finally, under subsection 33(1) of the Schedule, the insured person must provide his insurer with “any information reasonably required to assist the insurer in determining the person’s entitlement to a benefit.”39 Subsection 33(2) relieves insurers from paying a benefit for any period in which the insured person fails to provide timely information, unless the insured person has a reasonable explanation.
Allstate submits RP’s IRB claim fails on all counts, in that he has not established that he earned any income from his business, or an income amount from which an IRB could be calculated; he does not meet either the pre-104 or post-104 week disability test to qualify for an IRB; he has never provided Allstate with sufficient information for it to be able to calculate the amount of IRB he would be entitled to even if he did meet either test; and he would be disentitled in any event for any period for which he failed to provide the information, because he does not have a reasonable explanation to excuse his failure to comply with subsection 33(1).
For his part, RP submits that Allstate had sufficient reasonable information to determine his entitlement to an IRB and that its failure to retain an accountant to calculate the amount was unreasonable. He submits that Allstate is responsible for his delay in submitting his application for accident benefits, because it did not provide him with the appropriate application forms or information about the benefits available or assist him in applying in the first place, contrary to section 32 of the Schedule. RP’s explanation for his failure to provide Allstate with business records to substantiate his income, was that his landlord locked him out of the bakery sometime in July 2003, about two months after the accident, and he was unable to retrieve his business records from the basement of the bakery.
I find RP’s position to be completely without merit, on the basis that: a) he did not establish he earned an income from this bakery; b) he is disentitled under section 33 because he has yet to provide the information requested, despite the fact it has been available; and c) he does not meet either disability test. I reject RP’s argument that either Allstate or ING were to blame for his delay in applying for accident benefits in the first place because one or the other failed to provide him with application forms or assistance in applying. I find the testimony of RP and TN, that they did not receive any forms, unlikely to be true given their history of deception in their dealings with their insurance companies. In any event, whether or not the delay could be laid at the Insurers’ door has no bearing on the outcome of this arbitration.
a) No proof of income
The onus is on the Applicant to provide proof of his gross weekly pre-accident income, for the Insurer to then be able to calculate an IRB. I find none of the evidence put forth at the hearing is sufficient to establish that RP earned income from Royal Bagel as its owner and sole employee in the 52 weeks before the accident, or the amount of income earned.
The only documents tendered by RP as proof of earned income at the start of the hearing were as follows:
income tax returns for 1998 to 2001 produced to Mr. Blott by the CRA in March 2006, with a letter advising RP did not file tax returns for 2002 to 200440 (Tab 1);
Printouts of tax returns for 2000 to 2005 as reassessed by the CRA, provided to Allstate’s Legal Services by the CRA September 18, 200741 (Tab 2);
Copies of tax returns for 2002 to 2005 provided by the CRA to Allstate Legal Services on March 6, 2008 (Tab 7); 42
a rent cheque dated November 2, 2002 for $1,150 from RP to his landlord;43
a $96.21 telephone bill for the Royal Bagel Shop dated May 7, 2003;44
A $220 hydro bill for January 31 – April 3, 2003 and utility bill of $115.42;45
Two invoices, each for five 40-kg bags of flour, dated May 2 and May 16, 2003.46
The tax returns were not helpful. Standing alone, they did not establish that the business income reported on the returns came from Royal Bagel. The first set (tab 1) appeared to indicate widely varying business income from year to year: for example, “total earnings” of $13,000 and “net business income” of $74,945 for 2000; and “total earnings” of $11,400 and “net business income” of $271,000 for 2001. The last line of the 2001 return states “Income omitted knowingly/gross negligence - $271,927.”
The second set of returns as reassessed by the CRA (tab 2) contained different numbers for 2000 and 2001 from the previous set of returns. This was not surprising given they were CRA’s reassessments, but this set of tax returns also included returns for 2003 and 2005, which reported net self-employment income of $99,999 for those two years. There does not appear to have been a return for 2004. Assuming this information was accurate, there would appear to be no income loss after the accident, at least not in 2003 and 2005, and any IRB would necessarily work out to zero. With that information, and no return provided for 2004, it is difficult to understand how RP expected Allstate to be able to calculate, or pay, an IRB, as of September 2007.
TN explained that neither she nor RP filed income tax returns from 1999 to 2004, but she did not explain why, and neither did RP. TN testified that she was a housewife before the accident and, other than helping out at the cash register from time to time, she left the running of the business entirely to her husband. She explained that when her husband lost the business after the landlord locked them out sometime in July 2003, she had to go to work for her family in a sewing factory in Montreal and at a café in Vietnam of which she was part-owner, in order to support the family. It was not clear when she started earning income from these activities. She stated the business income on her and her husband’s tax returns for 2003 and 2005 came from those sources, and not the bagel shop, and her income was split equally between her and her husband for tax purposes. She also stated she received income from property her parents, who were wealthy, sold for her in Vietnam. It does not appear that any of this information was provided to Allstate at any time before this arbitration proceeding.
TN also proffered the explanation that she and her husband were unable to retrieve Royal Bagel’s business records because they had been locked out of the premises. She stated RP had an accountant for his business but did not explain why financial statements or other business records could not have been obtained from that source.
After the start of the arbitration hearing, Mr. Blott advised that RP and TN had retained a tax accountant, Mr. J. D. Byote, in January 2006 to object to the CRA’s assessments. Mr. Blott suggested Mr. Byote testify to clarify the couple’s situation with the CRA, as this was not evident from the tax returns and correspondence already in evidence.
Mr. Grossman advised that, as the tax returns provided up to the start of the hearing were clearly faulty and showed post-accident income that in effect would wipe out RP’s IRB entitlement, his firm had requested updated information directly from the CRA. On March 6, 2009, three months after the start of the hearing, the CRA produced a letter and two schedules, A and B, purporting to explain how the CRA had eventually reassessed income for TN and RP for the taxation years 2000 to 2005.47 Mr. Grossman, reasonably, objected to Mr. Byote testifying when he had no notice of what his evidence would entail.
In the end it was agreed that both counsel should interview Mr. Byote as to what clarification, if any, he could provide, in general terms, about how the CRA attributed income to RP in Schedule B.
When he arrived to testify, Mr. Byote brought with him a “worksheet” purportedly containing specific and detailed numbers attributing self-employment income from Royal Bagel to RP and his wife, based on business records – a worksheet apparently not previously disclosed to counsel during their interview with him.
Mr. Grossman objected to this evidence, on the grounds of lateness and surprise, in that it amounted to the first specific and detailed numbers from any source to be tendered as proof of an actual earned income amount from Royal Bagel, in the six years since the accident. As no such proof had been forthcoming despite Allstate’s repeated requests, this was unfair and prejudicial to Allstate. Mr. Blott felt that as it was Allstate who had pursued clarification from the CRA in the first place, after the start of the hearing, it should be prepared to accept the resulting evidence.
I ruled Mr. Byote could testify to explain CRA’s tax auditing process, its March 6, 2009 letter, and the process by which RP’s “income” was determined for the purpose of Schedule B, but that the worksheet itself should not be admitted nor could Mr. Byote’s testimony be used to prove a precise pre-accident self-employment income amount from Royal Bagel. As it now appeared the source business documents used to prepare the worksheet were in fact available well before the start of the hearing, and neither RP nor TN chose to advise their counsel of this absolutely essential information until after the hearing had commenced, I found it would be unfair to allow RP to rely on the worksheet for the purpose of establishing his claim to an IRB.
That aside, Mr. Byote was a straightforward and helpful witness. He had no interest in these proceedings and no reason not to tell the truth. I accept his evidence. He explained that RP and TN retained him early in 2006 to object to the CRA’s assessments for 1999, 2000 and 2001. After the couple failed to file tax returns for those years, the CRA conducted a “net worth assessment,” a process whereby the agency conducts an audit of a taxpayer’s assets and deemed expenses and attributes an income to the family unit based on their lifestyle. The CRA then sent RP a letter dated September 30, 2003 (Exhibit 6, filed January 26, 2009 at the hearing), advising it had completed an audit of his personal T-1 income tax returns and had reassessed his income for those years on a “net worth basis.” The income was assessed to be $140,256.56 (1999), $74,945.62 (2000) and $282,590.88 (2001).
The letter is self-explanatory, and states:
. . . due to your inability to provide requested documentation the Agency was required to obtain documents from third party sources regarding your banking and financial affairs in order to determine if the income you reported on your 1999, 2000 and 2001 T-1 returns was accurate. Based on the audit conducted the Agency is proposing to increase your income in each of the taxation periods of 1999, 2000 and 2001. Since, in our initial interview, you stated that your only source of income was the Royal Bagel Shop, it has been assumed that any unreported income was appropriated from that business. Thus, the Agency is proposing the following adjustments be made on your 1999, 2000 and 2001 T-1 returns.
I note it appears that in September 2003 the CRA did not have any source business documents from Royal Bagel, and took RP at his word that the bakery was his only source of income. The agency advised it was considering a penalty of up to 50% of the unreported income, a considerable sum, especially as RP claimed not to be working or earning any money in September 2003, due to the accident four months previous. Clearly, at that point, RP was in serious trouble with the CRA. There was no evidence about when TN returned to work to support her family or whether the couple were receiving financial assistance at that time. In her testimony, TN flatly denied that the couple’s difficulties with the CRA were a significant source of stress for RP. Given the facts, I find this very difficult to believe.
Mr. Byote went on to explain that for the tax years 2002 to 2005, the CRA did not even conduct an audit, but simply arbitrarily assigned income to RP and TN (split equally between them), which it is entitled to do when a taxpayer does not file returns and the agency does not receive any response to its requests to file. Mr. Byote, a former employee of the CRA, testified that the agency employs this tactic when it has suspicions about the source of a taxpayer’s income, and when it wants to “get the taxpayer’s attention.” Mr. Byote testified he advised RP to get an accountant to prepare and file returns for those years, and RP told him he did not have an accountant. RP then retained the tax filing firm of H and R Block to file the returns for 2002 to 2005,48 and Mr. Byote filed a notice of objection to CRA’s assessments for those years on the couple’s behalf.
In January 2009, almost three years after RP filed his Application for Arbitration49 and three years after he retained Mr. Byote, the matter was resolved when the CRA accepted the returns as filed. The T1 General 2002 return shows “RSP income” of $17,400, no employment income, and spousal income of $16,780, despite TN’s claim that she was a housewife and did not work before the accident. RP’s T1 General 2003 shows “other employment income” (the line for “self-employment income” is blank), and spousal income of $19,300. Without source documents, however, nothing in either of these returns, produced in March 2008, establishes that RP earned income from self-employment in the 52 weeks before the accident, or links any of the reported income to Royal Bagel.
A noteworthy piece of Mr. Byote’s evidence is his testimony that RP in fact did have financial statements and other business documents from Royal Bagel, which RP brought to his office in a box in 2006 and which Mr. Byote says the CRA took away with them. This directly contradicts the testimony of TN that she and her husband could not provide any business source documents to Allstate because they could not retrieve them from the bakery after the landlord changed the locks. I accept Mr. Byote’s testimony and find the documents have been available at least since 2006. In the absence of any other explanation for why they did not disclose these business records to Allstate or this tribunal, I find RP and TN chose not to disclose them. I further find TN lied about their existence, for reasons that remain unexplained.
Mr. Byote’s testimony also contradicts that of TN, who testified that RP did in fact have an accountant for Royal Bagel. Finally, it further indicates RP did not tell Mr. Byote the truth when he told him he did not have an accountant.
b) Delay
Subsection 33(2) of the Schedule relieves insurers from paying a benefit for any period in which the insured person fails to provide timely information reasonably required, unless the insured person has a reasonable explanation. I have found that the information required by Allstate was reasonable, and the explanation proffered by TN and RP, that the business documents required were not available, to be untrue. To date, no IRB would be payable under these circumstances, even if other eligibility requirements were met.
c) Disability
To qualify for an IRB on the merits of his case RP must establish he was substantially unable to carry out the essential tasks of his work due to impairments resulting from the accident. At issue is RP’s physical and mental ability to carry on business as the sole operator of a bagel bakery serving wholesale and retail customers. It was submitted on RP’s behalf that, before the accident, he was a very hard-working individual who earned a good income as well as being an engaged family member in a happy and stable marriage. As noted, the evidence tells a different story.
As described previously, RP started Royal Bagel with Tony in 1988, when they were both barely out of their twenties. By all accounts, the business enjoyed early success. According to an October 30, 1991 article in a local newspaper, the pair won a Junior Achievement Award for young entrepreneurs that year, in recognition of an increase in production from 50 to 500 dozen bagels a day.50 The article noted the pair had invested $35,000 to build the wood-burning oven required for authentic “Montreal-style” bagels and that they worked “16 hours a day, seven days a week.”
Asked to describe his daily tasks at the hearing, RP responded by outlining a typical day’s work for him and his partner Tony, referring to “we” throughout his testimony. As Tony did not work at the bakery after 1994, and as there was other evidence tending to suggest that the actual output of the bakery in the year or two before the accident was nowhere near what it was when RP and Tony were partners, or what it may have been when RP worked alone in the first few years after Tony left the business,51 I accept RP’s testimony as accurate regarding his essential daily tasks in general terms; however, I do not accept that he engaged in those tasks in the year or two before the accident to the extent he had in the past.
According to RP, the essential tasks were to load a dump truck by hand with three weeks’ worth of hardwood for the oven and unload and stack it in the yard at the bakery. He would fill the oven with wood once or twice a day, for a continuous fire, starting around 3:00 or 4:00 a.m. every day, to have the bagels ready by 5:00 a.m. for the first customers. He worked throughout the day, eating bagels as he went, because there were so many customers all day long. I note this does not appear to have been the case between January and April 2003, according to the evidence of MR, the health inspector who found the bakery closed on many occasions during that period, though apparently open to customers sporadically.
To bake the bagels, RP would lift and empty 40-kg bags of flour into the dough mixer, which he described as “the same height as me,” together with water, yeast and a small amount of sugar. After mixing, the dough was removed by hand and put on a wooden surface, and pieces cut off for each bagel. Each bagel was rolled by hand, boiled briefly in water and honey and loaded into the oven to bake. The baking continued all day, except when RP would have to put the fire out and close the shop while he delivered the bagels to wholesale customers.
RP stated he baked 7 days a week and was open in the mornings. If he ran out of dough, sold out of bagels, or had to deal with a school emergency with his children, he would close early. When he and Tony were partners, RP handled the retail customers and Tony handled the wholesale customers, including delivering bagels to other businesses. Some wholesale customers picked up their own orders at the bakery. After Tony left, RP hired a driver to deliver to wholesale customers. He did not employ a driver at the time of the accident, though, and did not say how long he was without a driver before the accident, or why he did not require one. A reasonable inference would be the volume of business did not require an extra driver.
I find the physical aspects of running the bakery, as RP described it, would have involved fairly heavy work demanding physical strength and stamina. I also find RP’s essential tasks would necessarily have included the usual administrative activities required in the running of one’s own business, such as handling money; paying bills; ensuring wholesale customers paid up; ordering sufficient supplies; keeping records; remitting taxes; observing health and food preparation regulations and municipal by-laws; and dealing with retail customers, the bank, and, when required, health inspectors or other officials.
RP testified that after the accident, he tried to work but could not do the physical work because of back pain, headaches and right wrist pain. This I find reasonable, given the consistency of his complaints about his neck, back and wrist from the time of the accident; that he worked alone; and the work was heavy and required constant use of his arms, shoulders and back.
RP also said he could not concentrate, and could not get the mix right. He would forget to add yeast or sugar to the dough, and the bagels would not turn out right. He stated his Vietnamese father-in-law came from Montreal to help him, but the gentleman did not speak English and was no use at all. RP claimed he lost a lot of customers, many businesses owed him money, and one wholesale customer in particular, CC, was “upset.”
For reasons discussed elsewhere, I find it likely RP would have qualified for IRBs on the basis of his accident-related physical injuries, at least for a reasonable period after the accident, but at the most, no later than Dr. Sekyi-Otu’s report of August 2004. However, I found no IRBs are payable because RP was not able to prove he earned any income from his business and he failed to provide Allstate with information it required to determine his entitlement, without a reasonable explanation, under section 33 of the Schedule.
As noted earlier, I found RP to be a genuinely psychologically troubled and dysfunctional individual. The evidence indicates he is not, to my mind, psychologically capable of the many demands involved in running his own bakery. However, I also found the evidence strongly suggests this was the case well before the accident. It is simply not reasonable that a purportedly successful self-employed businessman would not file income tax returns for several years in a row (since 1999, four years before the accident, in his case); engage in risky behaviour such as repeated significant shoplifting from a single retailer; lie about his address to his insurer; be unable to deal with a city health inspector or his own landlord; and allege he was separated from his wife and essentially lived at the bagel shop, if in fact he was living the normal, productive, and successful business (and family) life he claimed. For his wife to deny that any of these factors could possibly have caused her husband any stress or contributed to his psychological symptoms or behaviour, is simply not believable.
Attendant Care
RP claims attendant care expenses of $6,622.51 per month on the basis of an In-Home and Attendant Care Assessment conducted by October 8, 2008 by Dr. Duilio Bertolo, a chiropractor, on October 3, 2008 and an undated Assessment of Attendant Care Needs form (“Form 1”).52
Under subsections 18(2) and (3) of the Schedule, no attendant care benefit is payable more than two years after the accident unless the insured person sustains a catastrophic impairment as defined in section 2(1.1) of the Schedule as a result of the accident. As RP’s claim arises more than two years after the accident, and I have determined he did not suffer a catastrophic impairment as a result of the accident, he is not entitled to an attendant care benefit.
In any event, I find the attendant care expenses claimed on behalf of RP are completely unsupported by any objective evidence, unnecessary and unreasonable. Dr. Bertolo based his assessment entirely on his review of medical documentation and what he was told by TN during a single visit to her home, including that RP did not drive, which is untrue. He determined that RP required 749.42 hours per month (24 hours per day) of “basic supervisory care,” a category on the Form 1 for an applicant who “lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.”
Dr. Bertolo has no psychological training and I find that the Form 1 category he endorsed is clearly intended to apply to persons whose basic supervisor care needs due to behavioural changes, result from spinal or head injuries, not mental or behavioural disorders. In any event, I find Dr. Bertolo completely unqualified to conclude RP required attendant care on the basis of RP’s abnormal behaviour due to psychological impairments that had not even been diagnosed.
I also reject the evidence of TN’s sister HN. I found her testimony vague and unconvincing. She stated she would leave her jobs as a seamstress and manicurist in Montreal to come and look after RP for two to three months at a time when her sister was away in Vietnam or in Montreal working after the accident, alternating with their parents, who would come and stay up to four months at a time. She stated RP talked to himself in Polish, stayed in his room and was often angry and once threw a cup at a wall. She was unable to provide details of how often she herself made the trip, or how long this rotational arrangement continued, only that she did not go at all in 2007, the year TN took both children with her to Vietnam and enrolled them in school there. She stated that while at RP’s home she cooked, attempted to give RP his medicine, occasionally went with him and the children shopping (he drove); but otherwise avoided him. She provided no further details. Her parents did not testify. She stated that she visited her sister in Ontario pre-accident and RP behaved normally and drove her and her sister to clubs and restaurants. She did not say how long before the accident that would have been.
I was not persuaded that when HN went to RP’s home, it was to look after or “watch over” him. Given the lack of detail; her admission that she did not go there when the children were away in Vietnam with their mother; her admission that she had no control or influence over RP’s behaviour, whereabouts or driving habits; the ages of the children; and in light of TN’s testimony that she often left the children behind when she went to work in family businesses in Montreal and Vietnam to earn income to support her husband and children, I find common sense dictates it was far more likely HN came to Ontario, not to look after RP, but to look after the children while their mother was away. In any event, her evidence added nothing to the accounts of RP’s pre- and post-accident behaviour given by her niece and sister. From the sparseness and similarity of detail to the evidence of her niece and sister and her reluctance to testify, I find HN’s evidence appeared to be rehearsed. Her evidence was not helpful and I give it little weight.
Given my finding that RP engaged in reckless and antisocial behaviour prior to the accident, such as shoplifting, evidence that RP continued to drive his children to school after the accident, and TN’s admission she could not control her husband’s behaviour, I find there was no accident-related reason for 24-hour supervision.
Housekeeping
As with the attendant care benefit, there is no entitlement to housekeeping expenses more than 104 weeks after the accident unless the insured person has been found to be catastrophically impaired as a result of the accident, and I find RP not entitled for the same reasons. Furthermore, no evidence was presented to establish what, if any, housekeeping tasks RP engaged in before the accident. Nor was any persuasive medical evidence presented to refute Dr. Sekyi-Otu’s finding that RP was not disabled from performing housekeeping tasks.
RP claims $3,442 for chiropractic and massage provided by Dr. Bui pursuant to a Treatment Plan dated June 14, 2004. Allstate denied this treatment on the basis that soft tissue therapy was not reasonable so long after the accident, despite the findings of the August 20, 2004 Med/Rehab DAC assessment that RP sustained a WAD II injury, lumbar spine strain/sprain and right wrist dysfunction in the accident and the impairments were therefore accident-related. Despite their clear finding of accident-related physical injury, the chiropractor and physiotherapist who conducted the assessment concluded “we do not support the OCF-18/59 dated June 14, 2004 recommending active and passive rehabilitation because it appears that the claimant is in psychological distress that requires immediate attention prior to any further physical treatment.”
I find this conclusion makes absolutely no sense. The report contains no explanation whatsoever for why psychological difficulty would rule out physical treatment, nor why persons with no qualifications in mental health assessment would be entitled to make such a recommendation.
I find the recommendation completely unsupportable, so much so that I find it unreasonable – egregious even, for Allstate to have relied on it to deny the treatment. Without the recommendation, the treatment would have been reasonable and necessary.
I am mindful of TN’s uncontradicted testimony, however, that after June 2004, after only a few treatments, RP did not want to go for any more treatment with Dr. Bui. I find RP is entitled to be paid for the treatments he did attend.
Special Award
Under subsection 282(10) of the Insurance Act, an arbitrator may award an amount of up to 50 per cent of the value of benefits and interest found to be owing if he or she finds that an insurer has unreasonably withheld or delayed payment of those benefits.
RP submits Allstate should pay a special award because it did not advise RP he was entitled to apply for accident benefits and consistently denied him assessments and treatment.
I find RP is entitled to maximum special award of 50% of the treatment expenses owing from the Treatment Plan discussed above, for the sessions RP attended, on the basis that Allstate should never have denied the treatment in the first place. I require Allstate to calculate and pay the amount owing in accordance with the formula set out under subsection 282(10) of the Insurance Act.
RP further submits Allstate should pay a special award on the basis that it did not inform RP of his entitlement to apply for accident benefits. As there must be benefits found to be owing before a special award can be attributed, and I have not found any benefits to be owing other than some treatment expenses, there is no further special award payable in this case.
EXPENSES:
If they are unable to resolve the issue of expenses, either party may make an appointment before for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
July 23, 2010
Susan Sapin Arbitrator
Date
Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2010 ONFSCDRS 92
FSCO A06-001067
BETWEEN:
R. P.
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Allstate shall determine the amount owing for incurred treatment costs as per a Treatment Plan (OCF-18) dated June 14, 2004 prepared by the Pain Rehabilitation Clinic in Toronto and pay that amount to RP together with interest in accordance with section 46(2) of the Schedule
Allstate shall calculate and pay a maximum special award of 50 % of the amount in paragraph 1 of this Order, in accordance with the provisions of subsection 282(10) of the Insurance Act
The remaining claims in this arbitration proceeding are dismissed.
If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
July 23, 2010
Susan Sapin Arbitrator
Date
APPENDIX 1
Mental Capacity
During the pre-hearing process, on the basis of an Order of Master Peterson of the Ontario Superior Court of Justice, several psychological reports, the agreement of counsel and RP’s presentation at the Commission, Arbitrator Blackman determined RP did not appear to have the mental capacity to proceed in the dispute resolution process under Rule 10 of the Dispute Resolution Practice Code:53
In my relatively brief meeting, [RP] struck me as an individual who unfortunately seemed to have a different consciousness than the other persons in the room. [RP] failed to demonstrate that he had any idea why he was at the Commission or what this process involved. He did not appear to have the ability to understand the information relevant to making decisions in this arbitration process, including that he had been in an accident . . . nor did he appear to have the ability to appreciate the reasonable foreseeable consequences of a decision or the lack of a decision regarding this proceeding.”54
Ultimately, RP’s wife, TN, was appointed to proceed in the dispute resolution process at the Commission on his behalf. Arbitrator Blackman directed TN to take RP for a capacity assessment under the Substitute Decisions Act, 1992. RP was assessed by Dr. Marie Piskopos, a certified Capacity Assessor under the SDA, on August 14, 2008. Dr. Piskopos determined RP did not meet the legal test set out in the SDA to manage property decisions and handle finances independently. The test reads as follows:
- A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.
At the start of the hearing, counsel for RP expressed concern about whether RP would be able to testify, given the numerous accounts of his irrational, abnormal and bizarre behaviour in various settings since the accident. Despite these misgivings, however, RP testified at this hearing for an extended period over two days. Although there were instances of what one would consider unusual behaviour in the context of a hearing, and I find it was plainly evident that RP is psychologically disturbed, he was able to provide rational, coherent and responsive, although not always necessarily reliable, helpful or truthful answers to a great many questions. Based on RP’s presentation at the hearing over two days, the evidence of medical experts (including Dr. Piskopos, and despite the flaws in her assessment, discussed elsewhere in this decision, and surveillance evidence beginning in November 2006, I found RP’s psychological functioning appeared to have improved since Arbitrator Blackman issued his Order in April 2007 and Dr. Piskopos assessed him in August 2008.
Despite this improvement, however, on the basis of that same evidence and the testimony of Mr. J. D. Byote, a lawyer retained by RP and his wife for their tax matters, who testified he was unable to obtain instructions from RP, I agree with Arbitrator Blackman’s finding that RP was not mentally capable of proceeding on his own behalf in this arbitration proceeding, applying a test similar to that set out in section 6 of the SDA. On the basis of the evidence as a whole and my observation of RP at the hearing, it did not appear to me that RP was able to make sound decisions in his own or his family’s best interests, relevant to this arbitration proceeding or otherwise, or to be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. In any event, RP’s wife, TN, proceeded in the arbitration proceeding on his behalf.
APPENDIX 2
Language
RP was provided with the services of a Polish interpreter, not because he required one particularly, as he was able to answer most questions articulately in English, but because he felt more comfortable in the presence of a countryman who spoke his mother tongue and who could provide assistance where necessary. To the extent RP’s responses to some questions were less than satisfactory, I did not find this to be due to language issues or to the quality of the interpretation, or to any inability on the part of RP to understand the questions put to him in either English or Polish.
As with RP, the difficulty in obtaining reliable, factual answers from family members was not due to language difficulties. RP’s sixteen-year-old daughter H was fluent in both Vietnamese and English. As RP’s sister-in-law HN spoke little English and no Vietnamese interpreter could be arranged for the day she was available to testify, H was permitted to interpret her aunt’s testimony. AM, a Vietnamese-speaking Rehabilitation Service Advisor with Allstate who also testified at the hearing agreed the interpretation provided by H was accurate.
Although RP’s wife TN does speak English, and this is the only language in which she has ever communicated with her husband, I found her command of the language to be fairly basic and not up to the demands of testifying on matters that were not concrete. She confirmed this herself when she testified that she would keep her daughter H home from school to write letters for her in English. We were fortunate to have the services of an excellent Vietnamese interpreter, however, and I do not find that the difficulty in obtaining clear or detailed answers to questions from TN was due to any linguistic misunderstandings or deficiencies in the interpretation services provided.
APPENDIX 3
TABLE. Classification of Impairments Due to Mental and Behavioral Disorders55
Area or aspect of functioning
Class 1: No impairment
Class 2: Mild impairment
Class 3: Moderate impairment
Class 4: Marked impairment
Class 5: Extreme impairment
Activities of daily living Social functioning Concentration Adaption
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all, useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Footnotes
- Exhibit 1, Book 3, tab 4, Explanation of Benefits Payable (‘OCF-9’) dated August 27, 2004.
- Medical Rehabilitation Designated Assessment Centre (DAC) assessment Team Report of Dr. Cal Keil, chiropractor, and Sue Morell, physiotherapist, dated August 23, 2004, Exhibit 1, Book 2, tabs 1A and B.
- Report dated October 8, 2004, Exhibit 1, Book 2, tab 2
- Despite his representations to the contrary, it turns out RP did not have a valid policy with ING.
- Handwritten note dated October 7, 2005, Allstate’s Internal Correspondence Brief, Exhibit 11, p.116.
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, DSM-IV-TR, (“DSM-IV”), published by the American Psychiatric Association, Arlington VA, 2000, describes malingering as, “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.” (p.739)
- A separate ground in and of itself supporting Allstate’s denial of IRBs – see below.
- Who now operates the bakery under a new name.
- Ontario Provincial Police Interview Report dated May 6, 0325 hrs, Exhibit 14
- In a statement taken on behalf of ING by Steve Cooper, an independent adjuster, on July 13, 2004, RP stated a tractor trailer “just passed me by inches” before he got out of the car. This is another example, albeit a minor one, of remembered details changing as time went by in this case.
- Clinical notes and records, Urgent Care Clinic, Book 1, Tab 6
- An OHIP summary for the years 1997 to 2004 and clinical notes and records confirm RP indeed rarely visited even his own family doctor, and even then, mostly for recurring sinus headaches and high blood pressure.
- RP’s essential tasks of employment are discussed more fully under “Entitlement to IRB’s,” below.
- See footnote 10
- The edition previous to the DSM IV-TR. In RP’s case, assessors used the more recent version. I find nothing turns on this.
- Exhibit 22B, unpublished as at the date of the hearing.
- Multidisciplinary Consensus Summary Opinion Concerning Catastrophic Impairment and Entitlement to Benefits, December 18, 2008, Book 2, “Medicals – Insurer’s Examinations,” tab 11, (incorrectly labelled in the Arbitration Brief Index as Dr. B. Meikle’s report)
- Guides Chapter 14, p 292
- Described on pages 27 of this decision
- See chart in Appendix 3
- RP was driving his wife’s car at the time, which was insured by Allstate. Allstate at first believed RP was insured under a policy on his own vehicle, through ING, and did not accept priority from ING until May 2005. As it turned out, RP’s policy with ING had been cancelled due to misrepresentation, as per uncontradicted correspondence and documents from ING, Exhibit 1, Book 2, “Liability/Coverage,” tabs 5 – 9.
- Transcript of interviews with Bill Dobson, Allstate adjuster, dated July 15, 2003, and Steve Cooper, independent adjuster for ING, July 13, 2004. In fact, on two occasions when the subject came up, RP professed to be unaware of, and unconcerned by, any injury to his children in the accident, stating his wife was the one who would know.
- See f/n 2
- Exhibit 11, Tab 5
- Dr. D. Prendergast, Dr. R. Hershberg, Dr. L. Reznek, Dr. M. Mamelak and Dr. Gilman
- According to the Polish interpreter to whom RP agreed to show his writings.
- Book 2, tab 2A
- I understand a litigation guardian was appointed by the Superior Court of Justice for the purpose of RP’s tort action, but that no application has been made to the court for the appointment of a guardian of property under section 22 of the SDA on the basis of Dr. Piskopos’ capacity assessment.
- At p.11 of this decision
- November 19, 2008 Psychiatric File Review s.42 Report
- A second son, RP, was born to the couple in October 2005
- Chapter 14, p. 294
- Exhibit 1, Book 2 “Liability,” tab 9.
- Exhibit 5A
- Paragraph 6(1)(b).
- Subsection 8(2)
- As stated by Director’s Delegate Evans in Uribe and Wawanesa Mutual Insurance Company, (FSCO P09-00021, February 5, 2010), at p. 4
- As RP’s accident occurred before the changes to Section 64 that now stipulate that only income reported for tax purposes can be taken into account to calculate an IRB, the new provisions do not apply to him. However, RP would still need to provide Allstate with proof of any unreported income, for it to be able to calculate an IRB, and there is no evidence he did so.
- Exhibit 1, Book 2, ‘Income/Employment,’ Tab 1
- Tab 2
- Exhibit 1, Book 3, tab 7
- Exhibit 8A
- Exhibit 8B
- Exhibits 8C and 8D
- Exhibit 8E
- Exhibit 6. Mr. Byote explained these numbers resulted from a settlement with the CRA he negotiated for the couple.
- Exhibit 1, Book 3, tab 7 – the copies of returns for 2002 – 2005 provided to Allstate Legal Services on March 6, 2008.
- May 12, 2006
- Exhibit 9
- Testimony of CC, owner of a gourmet food store that RP supplied with bagels since opening his bakery.
- Exhibit 20
- Order dated May 18, 2007 and reasons set out in Arbitrator Blackman’s pre-hearing letter to the parties dated April 27, 2007.
- Pre-hearing letter dated April 27, 2007, at p. 5
- American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 – Chapter 14/301