Yi Qin v. Perth Insurance Company, 2012 ONFSCDRS 5

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 5

FSCO A10-000812

BETWEEN:

YI QIN

Applicant

and

PERTH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: William Renahan

Heard: October 11 and 12, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Miguel Maruszki for Mr. Qin

Nicholaus de Koning for Perth Insurance Company

Issues:

The Applicant, Yi Qin, was injured in a motor vehicle accident on March 22, 2008. He applied for and received statutory accident benefits from Perth Insurance Company, payable under the 1996 Schedule¹ and the New Regulation.² Perth terminated weekly housekeeping benefits on November 14, 2008 and refused to pay for certain medical and rehabilitation benefits and certain costs of examinations. The parties were unable to resolve their disputes through mediation, and Mr. Qin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Qin entitled to $933.72 for medical services provided by Crystal Healthcare Centre?
Is Mr. Qin entitled to $849.85 in medical benefits for relaxation CDs provided by Fairview Assessment Centre?
Is Mr. Qin entitled to housekeeping and home maintenance services from November 14, 2008 to November 7, 2009, and if so, in what amount?
Is Mr. Qin entitled to $63.72 for completion of an OCF 22 (Application for Approval of an Assessment or Examination) for a psychological assessment?
Is Mr. Qin entitled to $63.72 for completion of an OCF 22 for a follow-up functional abilities evaluation?
Is Mr. Qin entitled to $200 for a family and social file review by Sofia Balanovsky?
Is Mr. Qin entitled to $263 for a Gait Scan Analysis Report?
Is Mr. Qin entitled to $200 for an Initial Assessment by Dr. Angel Russi, chiropractor?
Is Mr. Qin entitled to $200 for an assessment by Sofia Balanovsky?
Is Mr. Qin entitled to $325 for an orthotics rebuttal report by Dr. Angel Russi, chiropractor?
Is either party entitled to expenses of the arbitration proceeding?

Result:

Mr. Qin is not entitled to $933.72 for medical services provided by Crystal Healthcare Centre.
Mr. Qin is not entitled to $849.85 in medical benefits for relaxation CDs provided by Fairview Assessment Centre.
Mr. Qin is not entitled to housekeeping and home maintenance services from November 14, 2008 to November 7, 2009.
Mr. Qin is not entitled to $63.72 for completion of an OCF 22 (Application for Approval of an Assessment or Examination) for a psychological assessment.
Mr. Qin is not entitled to $63.72 for completion of an OCF 22 for a follow-up functional abilities evaluation.
Mr. Qin is not entitled to $200 for a family and social file review by Sofia Balanovsky.
Mr. Qin is not entitled to $263 for a Gait Scan Analysis Report.
Mr. Qin is not entitled to $200 for an Initial Assessment by Dr. Angel Russi, chiropractor.
Mr. Qin is not entitled to $200 for an assessment by Sofia Balanovsky.
Mr. Qin is not entitled to $325 for an orthotics rebuttal report by Dr. Angel Russi, chiropractor.
The issues of entitlement to and amount of expenses are deferred in accordance with these reasons.

EVIDENCE AND ANALYSIS:

Applicable Law:

At the outset of the hearing I asked the parties to make submissions as to the application of the 1996 Schedule and the New Regulation to the claims arising from this accident of March 22, 2008. They did not address my request.

The relevant changes to the 1996 Schedule that came into force on September 1, 2010 are as follows:

(1) In this section,

"New Regulation" means Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act. O. Reg. 35/10, s. 1.

(1.1) Subject to subsection (1.3), the benefits set out in this Regulation shall be provided under every contract evidenced by a motor vehicle liability policy in respect of accidents that occur on or after November 1, 1996 and before September 1, 2010. O. Reg. 35/10, s. 1.

(1.2) Section 24 and Parts X, XI, XII, XIII and XV do not apply after August 31, 2010. O. Reg. 35/10, s. 1.

(1.3) No amount referred to in this Regulation shall be paid after August 31, 2010. O. Reg. 35/10, s. 1.

(1.4) An amount that would, but for subsection (1.3), be paid under this Regulation after August 31, 2010 shall be paid under the New Regulation, but in the amount determined,

(a) under this Regulation, other than section 24; or

(b) under subsections 25 (1), (3), (4) and (5) of the New Regulation. O. Reg. 35/10, s. 1.

Also relevant to the interpretation of the changes is section 2(2) of the New Regulation.

(2) Subsections 25 (1), (3), (4) and (5), Parts VIII and IX, other than subsections 50 (2) to (5), and Parts X, XI and XII apply with such modifications as are necessary in respect of benefits provided under the Old Regulation³ with respect to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and, for that purpose, the following rules apply:

References in paragraph 2 of subsection 25 (1), subsections 38 (1), (5), (7), (9), (10), (11), (12) and (14), sections 40 and 41 and subsection 44 (3) to the Minor Injury Guideline shall be read as references to the Pre-approved Framework Guideline referred to in the Old Regulation that would apply.
An amount that would, but for subsection 3 (1.3) of the Old Regulation, be paid under the Old Regulation after August 31, 2010 shall be paid under this Regulation in the amount determined,

i. under the Old Regulation, other than under section 24 of that Regulation, or

ii. under subsections 25 (1), (3), (4) and (5).

An amount described in paragraph 2 that is paid under this Regulation shall not include any amount previously paid under the Old Regulation. O.Reg. 34/10, s. 2 (2).

The section numbers applicable to Mr. Qin’s claims under the 1996 Schedule are as follows:

s. 14 medical and rehabilitation benefits;

s. 22 housekeeping and home maintenance expenses; and

s. 24 cost of examinations.

Under s. 3(1.3) of the 1996 Schedule, these amounts are not paid after August 31, 2010.

However, under s. 3(1.4) of the 1996 Schedule, amounts that would otherwise be payable under the 1996 Schedule are paid under the New Regulation in amounts determined under the 1996 Schedule. Costs of examination are payable under the New Regulation in amounts determined under subsections 25(1), (3), (4) and (5) of the New Regulation.

The September 1, 2010 amendments of the 1996 Schedule contained in subsections 3(1)(1.3) and (1.4) of that regulation, set out a three-part test for the medical benefits and housekeeping benefits at issue in this case. First, if it were not for subsection 3(1)(1.3) of the 1996 Schedule, would medical benefits and housekeeping benefits be payable under the 1996 Schedule? If so, are the benefits payable under the New Regulation? If so, what is the amount that is payable as determined under the 1996 Schedule?

This interpretation is as cumbersome as subsection 3(1) and results in a retroactive application of the substantive provisions of the New Regulation to fact situations that existed before the regulation came into force. In the case of Mr. Qin, the test for entitlement to housekeeping benefits changed under the New Regulation by adding the requirement that the claimant prove he sustained a catastrophic impairment. “It is obvious that reaching into the past and declaring the law to be different from what it was is a serious violation of rule of law.” ⁴ However, the presumption against the retroactive application of law does not apply to procedural legislation. Therefore, the retroactive application of the law in subsection 3(1) must refer to procedure and the meaning of the word “paid” in “shall be paid under the New Regulation” in section 3(1)(1.4) of the 1996 Regulation must be limited to mean “shall be paid according to the procedures set out in the New Regulation.” This interpretation is consistent with section 2(2) of the New Regulation, which, except for costs of examination, deals with changes to the procedure for claiming benefits and the payment of benefits, not with changes to substantive rights. It is also consistent with FSCO Superintendent’s Bulletin No. A-04/10 which provides that “Entitlement to caregiver, housekeeping and home maintenance benefits will continue to be governed by the Old SABS.”

Costs of examination are payable under the New Regulation in amounts determined under the New Regulation.

Background:

At the time of the accident, Mr. Qin was 30 years old, married and the father of a one-month old child. His wife did not work outside of the home. Mr. Qin testified that after the birth of his child he took care of his wife and child. At the outset of the hearing, he withdrew his claim for caregiver benefits.

He and his wife and child lived in a two bedroom apartment. After the accident they moved to a two bedroom basement apartment. At the time of the accident, Mr. Qin worked about 60 hours a week, five days a week in a restaurant. A few weeks after the accident, he obtained another job working in a meat packing plant where he worked five days a week. He testified that he made a little more at the meat packing plant. It was not clear how much he earned. He described his net pay as $400 to $500 to $800 per week. Unlike the restaurant, the meat packing plant was unionized and he had medical benefits.

Mr. Qin’s testimony as to how the accident occurred was not clear. I find it likely that Mr. Qin was at an intersection in the City of Toronto facing west and attempting to turn left. He struck an eastbound vehicle attempting to turn right. The centre of his vehicle came in contact with the left front corner of the other vehicle.

Mr. Qin claims that he continues to suffer low back pain and irritability as a result of the accident.

Mr. Qin did not take any time off work. His representatives referred him to many specialists, some of whose accounts are in issue. Mr. Qin did not tell his family doctor about his injury until two years after the accident when the family doctor received a lawyer’s request for Mr. Qin’s medical records. I did not hear any evidence connecting Mr. Qin’s treatment after the accident with his family doctor. Mr. Qin’s only explanation for not mentioning his motor vehicle accident symptoms to his doctor was that he did not feel he had to tell him because the pain comes and goes.

Mr. Qin testified that he hired a friend to help take care of his child at $250 per week and to clean the apartment at about $200 per week. He paid her until November 7, 2009. The friend was not able to testify as she has returned to China.

Individually, these three pieces of evidence may not be remarkable. However, taken together, they make me question Mr. Qin’s testimony. By itself, I do not believe Mr. Qin’s testimony that any impairment he suffered was significant because he did not take any time off work and he did not tell his family doctor of any problems he was having on any of the five occasions he saw him after the accident. By itself, I do not believe that he paid more than half his modest salary to a friend to help him with housekeeping and caregiving.

Medical Benefits:

The test for entitlement to medical benefits under section 14 of the 1996 Schedule is whether the expense is reasonable and necessary.

Mr. Qin claims a balance of $933.72 for services provided by Crystal Healthcare Centre between October 30, 2008 to January 2009. He testified that the treatment was massage, electronic treatment, pads on his back, training and exercise and that it helped. He did not say what it helped or how it was related to any impairment he suffered in the accident. Given that Mr. Qin’s impairments were not significant enough to warrant him telling his family doctor, I find that this treatment was not reasonable or necessary.

Mr. Qin claims $849.85 for a set of relaxation CDs prescribed by a chiropractor at Fairview Assessment Centre. The invoice dated September 18, 2009 includes $150 for administrative services and $141.13 for delivery, installation and explanation. Mr. Qin said they helped him to sleep and relax. Mr. Qin testified that he listened to most of them. I heard no evidence of what was on the CDs. On the evidence I heard, I am not satisfied that Mr. Qin suffered an impairment that required relaxation CDs. As well, I find the cost of five CDs and related expenses excessive.

Housekeeping Benefits:

Under section 22 of the 1996 Schedule the insurer shall pay reasonable and necessary additional housekeeping benefits if the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. This is the test for entitlement, although as stated earlier, the procedures for paying this benefit are set out in the New Regulation.

Perth paid housekeeping benefits up to August 18, 2008. Mr. Qin claims benefits up to November 7, 2009. He claims that he did the dusting, mopping and grocery shopping before the accident and that after the accident his wife paid his friend, Jane Zhou, about $100 a week to do this work. Before and after the accident he lived in a two bedroom apartment. Jane Zhou was in China at the time of this hearing.

On September 15, 2008, Mr. Qin’s own chiropractor reported that Mr. Qin said that he was able to perform all housekeeping tasks when not in pain. When his lower back pain was exacerbated by such tasks he would avoid them for a period of time. On October 8, 2008, Mr. Qin told the Insurer’s chiropractor that he could perform all of his home care and caregiving activities.

I received no documentary evidence, such as receipts, invoices, cancelled cheques or notes by Ms. Zhou as to hours she spent working to support payments to Ms. Zhou. Mr. Qin’s wife did not testify and I heard no evidence to explain what she did while Ms. Zhou cleaned the apartment and cared for the child. As well, I do not believe Mr. Qin’s testimony that he paid over half his modest salary to his friend. I find that Mr. Qin did not suffer a substantial inability to perform the housekeeping tasks he normally performed when Perth terminated these benefits.

Costs of Examination:

Pursuant to section 3(1)(1.4) of the 1996 Regulation the cost of examinations are payable under section 25 of the New Regulation. The first requirement is that the fees be reasonable.

I find it significant that Mr. Qin saw his family doctor three times in 2009 and twice in 2010 and did not mention the motor vehicle accident or any symptoms arising from the accident. For his annual physical examinations on March 4, 2009 and April 7, 2010, his doctor crossed out all medical problems that could possibly relate to the accident, including back pain and psychological issues.

I look at the assessments Mr. Qin received after the accident in the context of this evidence:

$63.72 for completion of an OCF 22 (Application for Approval of an Assessment or Examination) for a psychological assessment

This application was made nearly two years after the accident. I heard no persuasive evidence that Mr. Qin suffered any psychological symptoms as a result of the accident, particularly two years after the accident.

$63.72 for completion of an OCF 22 for a follow-up functional abilities evaluation

This application was made two years after the accident when Mr. Qin had no issues with his function. I heard no evidence to justify the first functional abilities evaluation. This application for a follow-up functional abilities evaluation was unreasonable.

$200 for a family and social file review by Sofia Balanovsky

This one page report prepared one year after the accident identifies social, personal, behavioural, family and executive function problems as a result of the accident without providing believable particulars and is therefore not reasonable.

$263 for a Gait Scan Analysis Report, Dr. Angel Russi, chiropractor

This half page report does not explain in a persuasive manner any connection between the motor vehicle accident and Mr. Qin’s need for orthotics. I heard nothing from Mr. Qin to indicate that he had a lower back impairment which affected his gait. The assessment is not reasonable.

$200 for an Initial Assessment by Dr. Angel Russi, chiropractor

The assessment was not included with the invoice and I cannot say whether it was a reasonable expense.

$200 for an assessment by Sofia Balanovsky, social worker

The difficulties coping that Ms. Balanovsky identified were not brought out in the hearing and is not credible. The assessment was not reasonable.

$325 for an orthotics rebuttal report by Dr. Angel Russi, chiropractor

Dr. Russi again found a recurrent, unresolved impairment of the lumbar region which was not supported by Mr. Qin’s testimony. The assessment was not reasonable.

EXPENSES:

If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, the party seeking expenses may make written submissions to me. The other party has 30 days from receiving the submissions to respond.

If the parties cannot agree on the amount of expenses after agreement or order on entitlement, they may make written submissions in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition).

January 26, 2012

William J. Renahan

Arbitrator

Date