Financial Services Commission of Ontario

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 206

FSCO A12-001626

BETWEEN:

COMERT TOPRAK

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers May 2-6, 10 & 11, 2016

Appearances: Mr. Comert Toprak participated Mr. Brian Cintosun participated for Mr. Comert Toprak Ms. Sonia Fabiani for participated Economical Mutual Insurance Company

Issues:

The Applicant, Mr. Comert Toprak, was injured in a motor vehicle accident on August 24, 2008 and sought accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Did the Applicant sustain a catastrophic impairment as a result of the accident within the meaning of the Schedule?

2. Is the Applicant entitled to receive a weekly income replacement benefit from December 10, 2010 and ongoing?

3. What is the amount of the weekly income replacement benefit that the Applicant is entitled to receive?

4. Is the Applicant entitled to receive medical benefits in the amount of $1,400.00 for an orthopedic mattress per an OCF-18, dated November 24, 2010?

5. Is the Applicant entitled to attendant care benefits in the amount of $716.20 per month for the period of August 24, 2008 to August 24, 2010?

6. Is the Applicant entitled to payment for housekeeping and home maintenance services in the amount of $100.00 per week for the period of August 24, 2008 to August 24, 2010?

7. Is the Applicant entitled to payments for the cost of examinations by Psychology Associates in the amount of $2,238.00 per an OCF-18, dated December 27, 2011?

8. Is the Applicant entitled to interest for overdue payments?

9. Is either party entitled to its expenses of the Arbitration?

Result:

1. The Applicant did not sustain a catastrophic impairment as a result of the accident within the meaning of the Schedule.

2. The Applicant is not entitled to receive a weekly income replacement benefit from December 10, 2010 and ongoing.

3. The Applicant is not entitled to receive medical benefits for $1,400.00 for an orthopedic mattress per the OCF-18, dated November 24, 2010.

4. The Applicant is entitled to attendant care benefits in the amount of $716.20 per month for the period of August 24, 2008 to August 24, 2010.

5. The Applicant is not entitled to payment for housekeeping and home maintenance services in the amount of $100.00 per week for the period of August 24, 2008 to August 24, 2010.

6. The Applicant is entitled to payments for the cost of examinations by Psychology Associates for $2,238.00 pursuant to an OCF-18, dated December 27, 2011.

7. The Applicant is entitled to interest on any overdue payments.

8. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, any party requesting expenses shall file with me and with the opposing party a written submission setting out the request for expenses and any supporting material within 30 days of the issuance of this decision. The opposing party shall file with me and with the party requesting expenses its responding submissions within 20 days of receipt of the request for expenses. The party requesting expenses shall file with me and the opposing party its reply material within 10 days of receipt of the responding material. I will determine the entitlement and quantum of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The witnesses who testified were:

1. The Applicant
2. The Applicant’s wife
3. The Applicant’s son, Okan
4. Tayfun Turhan, a friend of the Applicant
5. Dr. Lionel Gerber, BSc, MB, ChB, FRCP(C)
6. Dr. Lawrie Reznick, MD, BSc, BPhil (Oxon), PhD (Oxon), MRCPsych (UK), FRCP(C)
7. Dr. A. S. T. Pillai, Ph.D., C. Psych.
8. Dr. Bruce Paitich, MD, orthopedic surgeon

The Accident

The Applicant, a 45 year old construction worker, was the driver and sole occupant of his 1993 Honda model at the time of the accident. According to the Motor Vehicle Accident Report,² he was stopped at a red light when he was rear-ended by another vehicle which then reversed and left the scene. Airbags did not deploy and there was no evidence that the Applicant’s vehicle was pushed into the vehicle in front of him by the impact from the rear. He testified that his head hit on the sun visor in the car and the seat back. The fifteen year old Honda was not insured for collision and was “written off”, in the Applicant’s words, after the accident. I was not given any description of the 1993 Honda before or after the accident either in photographs or by the Applicant who said he could not remember the car.

The Applicant gave a statement to police when they were called to the accident scene and also gave them a partial licence plate of the vehicle that rear-ended his car.³ According to the Ambulance Call Report (“ACR”) and the Emergency Record of the Humber River Regional Hospital (“Emerg. Report”), the Applicant was taken to hospital by ambulance and released about five hours after the accident.⁴ Those records also indicate that (a) this was a very minor collision, (b) the Applicant was ambulatory after the accident and observed to be so by the paramedics, (c) there was no complaint at the time of the accident that he hit his head, (d) he was alert enough to give a partial licence plate of the car that hit his to the police, and (e) there was no loss of consciousness.

The Applicant’s major complaints concerning his injuries have been consistent: headaches, dizziness, tinnitus, neck and shoulder pain, lower back pain, and difficulties with sleep.

Economical has paid accident benefits based on the applications and assessments it received and the medical information it received from time to time. It paid income replacement benefits for approximately two and half years until December 12, 2010 at the weekly rate of $400.00, based on the Applicant’s earnings in the four weeks before the accident, based on an Employer’s Confirmation of Income (OCF-2) submitted by the Applicant on September 9, 2008.⁵ It paid the Applicant attendant care benefits totalling $10,572.33 for the period of the two years following the accident. It also paid housekeeping and home maintenance benefits totalling $9,590.00, again for the two year period after the accident. Economical terminated the benefits, relying on independent assessments conducted by occupational therapists, medical doctors and psychologists who found that the Applicant no longer met the requirements of the Schedule to receive those benefits. Economical denies that the Applicant is entitled to any further attendant care or housekeeping and home maintenance benefits. Though it has received new information since terminating the benefits that raised doubts as to the Applicant’s entitlement to receive these benefits, it has indicated it is not seeking repayment of the money paid under these headings.

Legislative Provisions

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read at the time of the accident and before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 and Ontario Regulation 664, as amended, a person seeking to recover their claims for accident benefits by Arbitration rather than in the courts was required to file an Application for Arbitration with FSCO. An Arbitrator appointed under that legislation is empowered to determine all issues in the dispute concerning the accident benefits. The jurisdiction I have as Arbitrator is therefore limited by the statute and regulations and the case law developed under those provisions. My jurisdiction is not as broad as a court’s jurisdiction and specifically does not include the power to award damages.

The relevant provisions of the Schedule for the claim of catastrophic impairment are s. 2(1.2)(f) or (g), and the definition in s. 2(1) of impairment. The sections provide:

Section 2(1.2)

(f) Subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(g) Subject to subsections (1.4), (2.1) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

Section 2(1)

“impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function.

Regarding Section 2(1.2)(g), according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, s. 14.7, the levels of impairment due to mental and behavioural disorders are differentiated by class. Class 3 are moderate impairments, being impairment levels that are compatible with some but not all useful functioning. Class 4 are marked impairments where impairment levels significantly impede useful functioning, and Class 5 is extreme impairment where impairment levels preclude useful functioning.

The claims for benefits for attendant care are determined under s. 16(1) of the Schedule, and the claims for benefits for housekeeping and home maintenance are determined under s. 22(1) of the Schedule. The claims for income replacement benefits are determined under Part II of the Schedule.

Work History

The Applicant testified that he worked full-time as a self-employed Master stucco plaster worker prior to and at the time of the accident. He described his work, which involves the application of stucco systems, including framing for windows and application of the various layers of mesh and stucco. His work was described in the OCF-2 submitted to Economical⁶ as full-time employment as a “stucco plasterer” and the essential tasks of the job were:

• “trowel or spray coats of stucco over exterior surfaces
• create decorative designs in finish coat and
• erect scaffolding.”

This work involves standing, bending, squatting, and repetitive arm movements. He was also required to stand on scaffolding, carry items of 2 to 3 kilograms and to work both outside and inside buildings.

A curriculum vitae was produced on behalf of the Applicant,⁷ and, in his evidence, he identified each of the companies that are indicated as entities for which he worked. This document was reflected in a chart found in the Return to Work Report of Clae Willis of Willis Health Services Inc. at p. 37.⁸ The Applicant had his own company in the period between 2006 and 2008. The Applicant confirmed that he had closed down the business in 2008. According to the chart referred to above, in 2008, he worked for three months in May, June, and July for Arda Construction. He worked for four weeks before the accident for Red Star Construction. The Applicant testified that he worked in January through March 2008 for one company and that the tax had been paid on the income he earned. In 2007, he worked in February and March for Limosano Plastering but stopped when there was no more work for him, and he worked another three months on a part-time basis, mostly at the end of the summer of 2007. He travelled to Turkey in June or July of 2007 to visit his family. In 2006, he worked for two other companies. At the time of the accident, he had not worked for a full year for any company (other than his own) since his position with Canex Construction Ltd which he held for one year from 2005 to 2006. He declared personal bankruptcy in 2008.⁹ He testified and told the various doctors who have treated him or assessed him for the purpose of his accident benefits claim that he has not worked since the accident. Red Star Construction confirmed in the OCF-2 (Exhibit 12) that the Applicant’s last day of work was August 22, 2008 since the accident occurred on a Sunday.

The only earnings declared in the Applicant’s tax return for 2008 were those for the four weeks he worked for Red Star Construction. In 2007, he declared $1.00 of income, despite his testimony that he worked five months that year. In 2006, he declared business income just over $32,000.00 and deducted expenses related to his motor vehicle and travel. Since 2008, he has not declared any earned income (other than the nominal $1.00), either business or personal, except for $565.00 of income in 2013 and his ODSP¹⁰ income in 2014.¹¹

Applicant’s Medical History

The Applicant reported to the health care professionals who assessed him for the purpose of accident benefits that he was in good health prior to the accident, and did not suffer from neck or back pain, tinnitus or dizziness or headaches until after the accident. He told some of the assessors that the accident had aggravated his gastrointestinal problems.

Exhibit 6, Pre-Accident and Post-accident Gastrointestinal/Cardiac Issues Brief (“GI and Heart Brief”), includes eight emergency reports from St. Joseph’s Health Centre and reports from ten doctors who provided care, including surgical care and follow-up, to the Applicant for gastrointestinal and cardiac issues in the period May 1, 2006 to November 29, 2012. The Applicant’s son testified that as of the time of the Hearing in 2016, his father’s ulcers had resolved long ago and were no longer an issue.

The gastrointestinal issues predominate the record and, for the purposes of understanding the accident benefits claims and to give an accurate context for this matter, I set out the relevant details. In May 2007, he was admitted to the hospital with recurrent vomiting and complaining of progressive abdominal distention and abdominal pain. He was diagnosed with a gastric outlet obstruction secondary to massive duodenal ulceration, remained in hospital for five days, and was prescribed medication and a liquid diet for the next several weeks.¹²

In August 2007, he was seen by Dr. Paul Sullivan who reported that, over the past year, the Applicant had lost 5 kg in weight and was mainly on a liquid diet. The Applicant had had several gastroscopies and balloon dilations over the previous two years. Dr. Sullivan discussed various alternative surgical management approaches in his report to the Applicant’s family physician and it was agreed that he proceed with surgery in the nature of a laparoscopic gastrojejunostomy with a small chance of conversion to open surgery.¹³

The Applicant was also seen in 2007 by Dr. John Kempston who recorded in his September 4, 2007 report¹⁴ that the Applicant was only eating yogurt and soup and he had lost weight. Dr. Kempston diagnosed him as having a “very significant gastric outlet obstruction”. The Applicant had some abdominal discomfort at that visit, and Dr. Kempston recommended a gastric drainage procedure.

Surgery options were also discussed again with the Applicant in September 2007 by Dr. Sullivan.

The Applicant continued to be seen by Dr. Kempston and Dr. Sullivan in 2008. On July 15, a few weeks prior to the accident, Dr. Kempston wrote another report recommending consideration of a surgical solution to the ongoing problems with the gastric outlet obstruction. On September 2, 2008, nine days after the accident, the Applicant underwent a laparoscopic gastrojejunostomy under general anesthesia. He was seen in a follow-up appointment on September 17, 2008 and two months later he was back at the hospital with abdominal pain.¹⁵ He was seen again on November 27 and 28 for abdominal pain. He returned to the emergency department with abdominal pain on December 27, 2008 and underwent an emergency operation on January 16, 2009 to address what was tentatively diagnosed as septicemia and diffuse peritonitis. The operation under general anesthetic involved, among other things, a resection of the small bowel.

Exhibit 6 contains the reports of the specialists’ follow-up on the Applicant’s condition after that 2009 surgery. In 2010 and 2011, the Applicant’s peptic ulcer disease, including bleeding ulcers, continued to require attendance at a hospital emergency department and medical investigation and intervention. His symptoms were managed by prescription medicine treatment. In March 2011, the Applicant was again admitted to the hospital with gastrointestinal bleeding.¹⁶

There is little evidence as to the impact of this history of gastrointestinal medical issues on the Applicant’s ability to work or his activities of daily living, though the gaps in working arguably coincide with at least some of the periods when the Applicant was hospitalized or turned to emergency departments for help with his symptoms and when he was under the care of specialists. The Applicant’s wife testified that, before the accident, her husband would continue to go to work even when suffering abdominal pain. Though he indicated that gastroenterology was not his field, when questioned, Dr. Bruce Paitich, who was called by Economical as a witness, testified that the gastrointestinal condition and operations would not have caused the back pain that the Applicant suffered in the post-accident years but might make someone less likely to be active. Beyond these two items, I have no evidence that could support a reasonable conclusion as to the contribution that the medical conditions, both cardiac and gastrointestinal, had on the Applicant’s ability to recover from the accident injuries, nor of the impact of the accident on his medical conditions. The theory of the Applicant’s case is that the injuries he suffered in the accident were the sole cause of his inability to work and engage in his normal life activities.

The Applicant’s life pre- and post-accident

The Applicant testified with the assistance of a Turkish interpreter. His social history, as he told it to the various health care professionals, is also recorded in the medical reports filed in this matter. He was born in Turkey and completed school only as far as Grade 8. He then worked in his father’s cartage business driving a truck until he immigrated to Canada in 2000. He took English as a Second Language courses and started work in construction where other immigrants from Turkey worked. He started as a stucco labourer and after a year, became a Master stucco plaster worker which allowed him to earn hourly rates in the $20.00 to $26.00 per hour range. He testified that he worked full-time as a self-employed construction worker.

In August 2008, he lived with his wife and two teenaged sons in a one-bedroom apartment. His two sons were at school and heading towards university and professional qualifications. The Applicant’s wife testified that she worked part-time and the sons were focussed on their studies so they did not help with the household chores. She said that she and the Applicant shared the obligations for meals, cleaning, shopping, and laundry, and both were independent in their personal care. The Applicant’s wife worked part-time until the accident and now works full-time. As of 2016, both sons have completed their education and are working.

The Applicant was described as a physically active man who engaged in recreational sports and social events prior to the accident.

The Applicant testified that, after the accident, he was not able to engage in social activities or sports or to assist with housekeeping and home maintenance. The family moved to a two-bedroom apartment in 2009 after the accident. The Applicant’s wife and sons assumed the entire burden of housekeeping and both the Applicant’s wife and son, Okan, assisted the Applicant with personal care aspects when his injuries were so painful that he could not look after himself. His wife and Okan, as well as his friend, Tayfun Turhan, confirmed that the Applicant easily became very irritable after the accident and the stress level in the family was very high. In December 2013, there was a serious argument among the family members over an unpaid dental bill that involved police attending at the home. Both the Applicant’s wife and Okan testified that the Applicant had to move out because there was a danger he would hurt the sons. The Applicant had broken a TV and dishes in fits of anger and frustration.

The Applicant testified that he has lost the respect of his sons and that the injuries he suffered in the accident have damaged the spiritual life of the family. He testified that he lives with his friend Tayfun Turhan in an apartment close to the building where his family lives. He sometimes cooks (he can boil eggs) and washed a couple of plates, and he can do some vacuuming, but he runs out of energy so he cannot do more. He is independent in his personal care, though, if he has pain, he needs help, especially with foot care. He can carry four to five kilos.

He usually goes over to his family’s apartment every morning. He testified that he sees his sons every day and denied that he had left his family. In his view, he had to go somewhere else to avoid hurting them but he has not left them. He testified that he stays in both his family’s apartment and with his friend, and that he can stay where he wants. His friend takes him out in the evenings when the friend gets home from work.

The Applicant’s wife testified that she stays away from the Applicant because of the arguing. Even three years after the separation, she tries not to be too far from him because he is having miserable days. She leaves for work and the Applicant goes to his family’s apartment where he may eat what she has prepared for him. On the weekends especially, she makes food for him. His sons do his laundry for him and ensure he takes his medication. She confirmed that he goes out to socialize with friends, but she said that his brain is not stable and he cannot work because his physical and psychological situation is not good enough. She testified that, after the accident, her husband went through very difficult days and she had to do all the housework, shopping and everything herself. In her view, the accident ruined their lives, including those of her children. She testified that he could not take care of himself and that she is exhausted from having to assume the workload he once did. She is clear that, before the accident, he helped with the laundry even though he had reported to assessors that he did not assist with the laundry prior to the accident.

Economical produced video surveillance evidence and asked the Applicant questions concerning what the evidence showed. The video surveillance after the accident shows the Applicant on the balcony of his family’s apartment, sometimes sweeping the balcony. That surveillance also confirms that the Applicant is able to socialize with friends, use the TTC comfortably, and conform to expected conduct in public situations, such as buying a coffee at a fast food outlet.

The Applicant’s son, Okan, and his friend, Tayfun Turhan, testified that they do not want the Applicant to be on his own, and the Applicant says he could not live on his own because he gets nervous and angry and cries. Mr. Turhan is concerned about the Applicant becoming depressed, and Okan is concerned that his father will forget to turn the stove off, as he did once when an assessor was at the apartment on behalf of Economical. Both Okan and Mr. Turhan have concerns as to a decline in the cognitive abilities of the Applicant.

The Applicant has had considerable financial stresses, both before and after the accident. I have previously set out his declared income. I was advised that the Applicant has previously retained three other lawyers before Mr. Cintosun who represented him at the Hearing. One lawyer has had a notice of garnishment issued for his fees and disbursements for over $45,000.00.¹⁷ Exhibit 2, Tab 11B, is a copy of two endorsements on a Motion Record in a Superior Court of Justice action between the Applicant and Economical made in May and September 2013. Attached to the endorsements is an agreement by which the Applicant was to pay over $83,000.00 to another lawyer for the release of the file and a payment of $15,000.00 to his second lawyer for her fees in the corresponding tort claim. In 2013, his second lawyer “fired him” over a disagreement concerning settlement of the tort case with respect to the accident. This event caused the Applicant a great deal of stress and the evidence is that the Applicant’s wife called for help when she found him after he took five prescription pills. He was admitted to a hospital on the basis that this was a suicide attempt following the disagreement with his lawyer.

The Applicant testified that, at the present time, he uses medication for sleeping, for depression and nervousness, for cholesterol, for stomach gas and pain killers. In the three months prior to the Hearing, he saw his family doctor, a doctor at St. Joseph’s [Health Centre] and “one related to my head”. He says that, when his symptoms stop, he feels happy, and sometimes he is withdrawn and quiet. Currently he has back pain that comes and goes, as do cramps in his left leg. He gets severe headaches that affect his vision and dizziness. He gets panic attacks and his heart beats fast. He has some ringing in his ears. The numbness he experienced after the accident in his left hand is mostly gone. He does not do any exercises given to him by physiotherapists since the accident and he continues to smoke, saying, “my friends smoke” in response to why he continued to do so. He does not drive, though he has attempted to do so.

The Applicant testified that he cannot work because of the injuries he suffered in the accident.

The record indicates that he has been provided with various assistive devices for exercise, housekeeping and self-care over the years on the recommendations of various health care providers and that he has had psychotherapy provided by psychologists, psychiatric care and physiotherapy, all to assist in his recovery from the accident.

The Applicant has submitted ten reports in support of his claims for income replacement benefits, attendant care benefits, housekeeping and home maintenance benefits, and designation as catastrophically impaired in this matter, spanning the period of July 31, 2009 to June 21, 2015, marked as Exhibit 1. These reports include two by psychiatrists (one treating doctor and one doctor assessing the Applicant for the catastrophic impairment claim), a physiatrist, a psychological and rehabilitation consultant, a rheumatologist, two psychologists, an orthopaedic surgeon and an “Elders Ambulatory Consult” report following a reassessment by a specialist concerning the Applicant’s poor memory and concentration. A review of the reports confirms that the Applicant has received a significant amount of psychotherapy to address his impairments. Most of the reports include the history of the accident, and their contents are based on the Applicant’s self-reporting that the Applicant had lost consciousness at the accident scene and that he had hit his head.

The August 2012 report of Dr. Bergman, written six months after the OCF-19 he signed,¹⁸ provides some insight into the extensive treatment that the Applicant has had since the accident, as well as the gastrointestinal treatment. By August 2012, the Applicant has been seen by specialists at a pain clinic at Toronto Western Hospital and he was referred to another pain clinic for treatments. Dr. Shree Bhalerao, MD, a psychiatrist, had treated the Applicant but was no longer treating him in 2012, and the family doctor recorded that he was attempting to obtain assessment and treatment for the Applicant and his wife by a Turkish speaking psychiatrist. Dr. Bhalerao had referred the Applicant to a Turkish speaking psychologist, and Dr. Bergman wanted the Applicant seen by a Turkish speaking neuropsychologist. Dr. Bergman’s report documents the difficulties in treating the Applicant with the usual pain killers because of his ulcers. Dr. Bergman’s report also documents that the Applicant had been treated by Dr. Bergman for post-accident symptoms based on a head injury.

Dr. Bergman’s diagnosis in August 2012 was that the Applicant was suffering from posttraumatic headaches, “S/P head injury”, cognitive impairment, tendinitis in his shoulder, fibromyalgia, posttraumatic stress disorder and depression, sleep disorder and “peptic ulcer disease not caused by the MVA but possible [sic] exacerbated by stress”. In addition, the stress within the family was documented by Dr. Bergman, with the Applicant’s wife complaining of the difficulties that she and her children had coping with changes in the Applicant’s behaviour and his inability to perform house duties.

Both a rheumatologist and a physiatrist¹⁹ diagnosed the Applicant’s impairments as myofascial injuries of the neck and lower back. Both reported that the Applicant had had physiotherapy that did not benefit him a great deal, and Dr. Prutis, the physiatrist, recommended acupuncture for symptomatic pain control, hydrotherapy and core strengthening exercises. Dr. Potashner, the rheumatologist, diagnosed myofascial pain syndrome of the neck and cervicogenic headaches, as well as myofascial pain syndrome of the lumbar spine. Dr. Potashner saw little improvement in the Applicant’s condition between two assessments he did in 2010 and 2011, despite “multiple modalities of therapy”.²⁰ Both saw little prospect of the Applicant being able to return to work and relied on the Applicant’s report that he had not returned to work and that an attempt to return had been unsuccessful due to severe pain from his accident injuries.

Dr. S. Mohiri provided psychotherapy to the Applicant in 2009 and 2010 at the same time as Dr. Bhalerao was providing psychiatric care. The Applicant had further psychotherapy in 2011 and 2012 provided by Dr. A.S.T. Pillai who testified at the Hearing.

The primary difficulty with my accepting the opinions of the experts whose reports are provided in Exhibit 1 is the fact that over the eight year period since the accident occurred, the Applicant has given differing statements as to what happened in the accident, specifically whether or not he hit his head and/or lost consciousness and how much he remembered about the accident itself. The assessments are based on a description of the accident that includes his hitting his head and losing consciousness until he was in the ambulance. This description is not supported by the documents generated by the paramedics who attended at the accident scene and the medical staff in the emergency room at the hospital who saw the Applicant immediately after the accident. These observers are uninterested third parties recording the events, their observations, and the Applicant’s statements immediately after the accident.

Economical provided a summary chart of the details of the accident description that the Applicant gave to various doctors. On review of the chart, it is clear that the concepts of a head injury and loss of consciousness suffered during the accident became part of the Applicant’s accident narrative, even though none of the documents created at the time of or close in time to the accident have such a notation. Nowhere among those contemporaneous accounts is there any record of the Applicant complaining that he had hit his head. When he was questioned about the inconsistencies between the Emerg. Report and the ACR, the Applicant said that he could not remember what happened but he confirmed that he was walking at the accident scene immediately after the accident. He agreed that his memory of what occurred at the accident would have been better when he was in the emergency department that night as compared to now and that he would have had a better recollection of the events when he was giving his statement to the police. He could not remember what he had told his doctors at the various points in time. He could not remember, for instance, telling a Dr. Syed, a psychologist who conducted an independent assessment of him in March 2010, that he had suffered no head impact in the accident, though that is what Dr. Syed recorded.²¹

As the years passed, the doctors who treated or assessed the Applicant seem to have accepted at face value his statements to them that he had struck his head, lost consciousness, recalled nothing of the accident because he came to, lying in the ambulance with the paramedics shining a light in his eyes, and was admitted to hospital for at least one night, even though the hospital records indicate he was released the same day.

I find that the Applicant, whether subconsciously or consciously, has created a narrative of the accident not supported by the original documents. That fictitious narrative would provide a more credible rationale for his complaints of ongoing pain and impairment than the actual records of a very minor accident with the Applicant ambulatory at the scene and able to record a partial licence plate of the car that hit his car. I do not doubt that, over the years, the Applicant genuinely finds it difficult to recall the details of the accident, but I find that, where the health care professionals were told that he hit his head, had a loss of consciousness, had no recollection of the accident and had been admitted to hospital, those health care professionals based their assessments on an inaccurate narrative that led some of them to incorporate the head injury into their diagnosis and conclusions of lasting significant impairments. I can give little weight to the opinions of those who based their diagnosis on a head injury and loss of consciousness, in my determination of the obligation of Economical to provide benefits to the Applicant.

Issue 1: Did the Applicant sustain a catastrophic impairment as a result of the accident within the meaning of the Schedule?

The onus is on the Applicant to prove on the balance of probabilities that he has sustained a catastrophic impairment as defined in the Schedule. The test for causation is the “but for” test and requires that the Applicant show that but for the motor vehicle accident, his current condition would not have occurred.²² One marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired under clause (g) of the Schedule.²³

The Schedule at the date of the accident provided seven alternative grounds on which catastrophic impairment could be found. The OCF-19, Application for Determination of Catastrophic Impairment,²⁴ was signed by Dr. S. Bergman, the Applicant’s family doctor, on February 18, 2012, three and a half years after the accident. The Application is based on the definition found in s. 2(1.2)(f) of the Schedule, which requires an assessment of whole person impairment. In the evidence provided in support of his Application at the Hearing, however, the Applicant argues that he is catastrophically impaired due to a mental or behavioural disorder within s. 2(1.2)(g), not s. 2(1.2)(f). Specifically, the Applicant’s case is that he has a Class 4 Marked Impairment identified by Dr. Lionel Gerber, psychiatrist.

Economical submits that the Applicant is not catastrophically impaired and, in fact, is malingering. Economical’s position is that the Applicant has not been truthful and has exaggerated his impairment suffered because of the accident to recover what he believes he is entitled to under his insurance policy. Economical’s position is that his mental or behavioural disorder is at most Class 3 Moderate, not Class 4 Marked, and that the Applicant suffers at most a 24% whole person impairment as defined in s. 2(1.2)(f), substantially less than the 55% whole person impairment required to meet the definition of catastrophic impairment.

There is no question that a Class 3 Moderate Impairment or a 24% whole person impairment will be noticeable and meaningful to the person suffering from that impairment and to his friends and family. Guidance for the interpretation of this legislation is provided in the Court of Appeal decision in Pastore v. Aviva²⁵ in which the Court indicates that it is correct that the legislation is structured to give the enhanced compensation only to those whose injuries have had a catastrophic effect on their lives and to limit payments to others less severely affected. The Court went on to find that this result is achieved by adhering to the words in the legislation, properly interpreted in context. The phrase and concept of catastrophic impairment is to have an inclusive and not restrictive meaning.

While the impairments have made a difference to the Applicant’s life, I find that the Applicant has not proven that he has a catastrophic impairment as defined by the legislation. The tests under either s. 2(1.2)(f) or (g) are specific, and there is no doubt that Applicants, like Mr. Toprak, who are not able to meet the tests, are people who continue to cope with their injuries and who must make adjustments to their new circumstances.

To support his claim of mental or behavioural impairment, the Applicant called a treating psychologist, Dr. A. S. T. Pillai, to testify concerning his August 10, 2012 report²⁶ and with respect to the course of seventeen treatments that he gave to the Applicant. The Applicant also called Dr. Lionel Gerber, psychiatrist, to testify to his report. Dr. Gerber is an assistant professor, Department of Psychiatry, on staff at Sunnybrook Health Sciences Centre, and his report²⁷ was prepared in response to Economical’s Independent Assessment of the catastrophic impairment claim.

In August 2012, Dr. Pillai recommended cognitive behavioural psychotherapy of 24 sessions with a subsequent review if necessary, and an in-vehicular/pedestrian assessment to clarify the extent and nature of the Applicant’s anxiety and his suitability for treatment for his anxiety when driving. Dr. Pillai concluded that the Applicant is substantially disabled both from an occupational and from a normal life point of view. The rehabilitation barriers he identified include a major depressive disorder and chronic pain disorder symptoms which would likely result in significantly reduced concentration, reduced activity and productivity, reduced motivation, interpersonal difficulties, reduced ability to deal with conflict, difficulty with complex tasks or multi-tasking, reduced organizational and time management abilities, reduced capacity to cope with stressful situations or reduced ability to deal with conflict or other emotionally charged events.²⁸ Dr. Pillai provided treatment, and his clinical notes of his sessions on December 18, 2012, January 29, 2013 and February 19, 2013 were filed as Exhibit 22. He stopped treating the Applicant after the suicide attempt in February 2013 because the Applicant was being provided with day hospital sessions which might have conflicted with his appointments with Dr. Pillai.²⁹

Dr. Pillai had not been provided with the reports of the other psychologists who had provided psychotherapy, but he indicated that the therapeutic gains made with the other treatment appear to have eroded.³⁰ He thought the Applicant had struck his head and lost consciousness in the accident. He was not aware of the psychiatric treatment that the Applicant had previously received.

Dr. Gerber is experienced in diagnosing catastrophic impairments and his evidence established that his testing and assessment of the Applicant included an interview with the Applicant’s son. He was provided with a brief of medical reports including the assessments done on behalf of Economical.

Dr. Gerber determined that the Applicant suffers from a “Major Depressive Disorder”, a “Chronic Pain Disorder Associated with Both Psychological Factors and a General Medical Condition”, a “Cognitive Disorder not otherwise specified (secondary to a mild traumatic brain injury)”, and “Personality changes due to a general medical condition (the traumatic brain injury)”.³¹ Dr. Gerber lists as “General Medical Conditions” of the Applicant traumatic brain injury, headaches, neck pain, shoulder pain, back pain and dizziness. As “Psychosocial and Environmental Problems”, he lists excessive irritability, social isolation, inability to work with resultant financial problems and significant problems in his relationship with his wife and sons. He gave a Global Assessment of Functioning as 40.³² Unlike Dr. Bergman in his August 2012 report discussed above, Dr. Gerber declined to find that the Applicant fulfilled the criteria for Posttraumatic Stress Disorder. Dr. Gerber reviewed the Applicant’s daily living activities and noted limitations on his functioning.

Dr. Gerber concluded that:

According to clause (g) of the SABS, Mr. Toprak is Catastrophically Impaired because he meets criteria for a Class 4 (Marked Impairment) determination in at least three of the four listed categories.

Economical submits that Dr. Gerber’s evidence cannot be determinative for several reasons. His assessment of the level of functioning that the Applicant has achieved after the accident is not supported by the record. I find that the level of functioning, even assuming that it excludes being able to work, is much higher than Dr. Gerber determined, based on the evidence provided by the Applicant, his wife, his son and his friend.

In addition, Dr. Gerber writes in his report in discussing whether or not there is posttraumatic stress disorder, “Mr. Toprak was involved in an accident in which there was a threat to the physical integrity of himself and he responded with a sense of helpless[ness].”³³

A diagnosis of a traumatic brain injury is an element in more than one of the impairments diagnosed by Dr. Gerber. As was the case of the medical assessors whose reports were prepared earlier and are included in Exhibit 1, the account which the Applicant gave to Dr. Gerber was that he had no recollection of the accident and he had awakened in the ambulance with the paramedics shining a light in his eyes. As I previously noted, the records created contemporaneous to the event indicate that (a) this was a very minor collision, (b) the Applicant was ambulatory after the accident and observed to be so by the paramedics, (c) there was no complaint at the time of the accident that he hit his head, d) he was alert enough to give a partial licence plate of the car that hit his to the police, and e) there was no loss of consciousness.

Dr. Gerber also finds support for his diagnoses in the letter reports provided by Dr. Shree Bhalerao, a psychiatrist who had been treating the Applicant from 2009 to 2012 at St. Michael’s Hospital. Dr. Gerber’s diagnosis, based on his assessment of the Applicant, had much in common with Dr. Bhalerao’s conclusions. Dr. Bhalerao’s original “Ambulatory Consult” report of July 2009³⁴ indicates that the Applicant was referred to Dr. Bhalerao with respect to depression. The history contained in this report recites, in the description of the accident, an “increased time of loss of consciousness” and “increased post-traumatic amnestic” and “post concussive symptoms”. The occupational effects are listed as “Limited by gastrointestinal problems and pain”. Dr. Bhalerao diagnoses a major depressive disorder due to a medical condition and cites a head injury. Dr. Bhalerao also references the financial and vocational stressors. Dr. Bhalerao recommended a CT scan of the head³⁵ and, whereas the Applicant was not using medication, the use of antidepressants and consideration of a stimulant for motivation, as well as referral to a pain specialist.

In the letter report of December 15, 2010, Dr. Bhalerao says the Applicant is being followed in regards to “a major depressive disorder with anxious features secondary to a motor vehicle [sic]”.³⁶ At that time, the debilitating impairments are described as “concentration, sleep, energy, low mood, anhedonia, fatigue, irritability and significant financial and familial strain”. The report confirms the Applicant is taking medication and at this time has “only moderately responded” to supportive therapy and to his medications. I also note that, for reasons not explained in the evidence, the Applicant’s physical complaints of pain to his back, neck and shoulders are not referred to in Dr. Bhalerao’s list of debilitating impairments in 2010.

In the letter report of September 27, 2012,³⁷ Dr. Bhalerao states that the Applicant is being treated “in regards to the sequelae of a head injury due to a motor vehicle accident on August 2008”.

While Dr. Bhalerao is a qualified psychiatrist in a teaching hospital, Dr. Bhalerao was not called to testify, so I have only the reports to review, all of which are brief. The limited history of the accident provided in these reports reflects the inaccurate narrative of the accident, as I noted earlier.

Dr. Gerber also noted in his evidence and report that the Applicant’s fluency in English is not good and he requires an interpreter. Dr. Gerber therefore discounts the testing done by the assessors retained by Economical on the basis of the difficulties in translation. There is considerable evidence to rebut this conclusion. In his curriculum vitae (Tab 14, Exhibit 1), the Applicant is described as fluent in both English and Turkish. Both Dr. Pillai, his treating psychologist in 2011 and 2012, and Dr. Bruce Paitich, who assessed him in 2010, said that the Applicant had no difficulty communicating with each of them, Dr. Pillai for the purpose of treatment on no less than 17 occasions and Dr. Paitich for assessment. On the second assessment by Dr. Paitich in 2014, the Applicant insisted that he have an interpreter for the assessment. Dr. Paitich repeated back to the Applicant what he, Dr. Paitich, had noted that the Applicant had told him in the history he took in 2010. The Applicant confirmed through the interpreter that Dr. Paitich had correctly recorded what he had told him. There is nothing on the record that explains a significant loss of fluency in English in the years between the first and second assessment by Dr. Paitich. While it is not outside the realm of possibility that the Applicant’s fluency in English has declined since the accident, I do not believe that it was so insufficient that he could not give answers to the test questions during the assessment by Dr. Reznick, as was suggested by Dr. Gerber. Nor do I accept that his fluency or any cultural context distorted the test results in the assessments.

I therefore do not accept that interpretation errors or the Applicant’s lack of fluency in English are responsible for the differences in testing outcomes and opinions or undermine the reliability of the assessors’ opinions.

Economical relies on the evidence of Dr. Lawrie Reznick, also a psychiatrist on staff at Sunnybrook Health Sciences Centre, who also tested and assessed the Applicant. Dr. Reznick prepared his report, dated July 21, 2014,³⁸ which was reviewed by Dr. Gerber.

Dr. Reznick, like Dr. Gerber, reviewed the relevant domains or categories in assessing whether or not the Applicant suffers from a catastrophic impairment. The four domains are activities of daily living, social functioning, the ability to concentrate and persist on a task, and the ability to function in a complex or work-like setting.

Dr. Reznick concluded that the Applicant suffered from a Class 2 Mild impairment in activities of daily living, a Class 3 Moderate impairment in the domain of social functioning, a Class 2 Mild impairment in the ability to concentrate and persist on a task, and a Class 2 Mild impairment with respect to his ability to function in a complex or work-like setting. He concluded that at most, the Applicant had a 10 to 20% whole person impairment from the psychiatric point of view and that the Applicant did not have a Marked or Extreme Impairment.

With respect to whether or not the Applicant had suffered a traumatic brain injury, Dr. Reznick has experience in treating traumatic brain injury as well as assessing mental or behavioural impairments for the purposes of the Schedule. He testified that, if a person suffers a traumatic brain injury even when the patient did not strike their head, the symptoms show up within three months of the accident and that the patients improve over time. In his view, the Applicant does not follow the pattern for traumatic brain injury. For instance, the Applicant has previously been assessed using the clock face test as part of assessment and treatment by Dr. M. Zorzitto, MD, FRCP(C), a specialist in geriatric medicine, in October 2011.³⁹ The Applicant scored better on that assessment than he did in Dr. Gerber’s clock face test. The Applicant seems to not have had the symptoms of traumatic brain injury shortly after the accident and he has been getting worse, even though his treating doctors identified that injury and he has been receiving treatment for it. Dr. Reznick also referred in his evidence to an opinion by a Dr. Feinstein, an acknowledged expert in traumatic brain injury, that the Applicant did not have such a brain injury. I was not provided with that report and can therefore give no weight to this element of Dr. Reznick’s opinion.

Dr. Reznick noted that the assessment of the impairment in this case is severely hampered by the fact that there is reason to believe that the Applicant is malingering.⁴⁰ Both Dr. Gerber and Dr. Reznick had tested the Applicant using the Rheys 15 test to determine if he was malingering. The test is a simple one and the lower the score, the higher the potential that the patient is fabricating his symptoms and malingering. Dr. Reznick published a paper in a journal in 2005 in which he reviewed the use of this test to determine its reliability. His view is that there is ample data to support the test as a reliable indicator of malingering. He does not say that there cannot ever be a false outcome based on the test, but he believes that it is 95% reliable.

The Applicant got a very low score when tested by both Dr. Gerber and Dr. Reznick. Dr. Gerber, however, discounts this test result and does not conclude that the Applicant is fabricating or exaggerating his symptoms and malingering because of the Applicant’s test results on the clock face test noted above. The clock face test is a test of cognitive ability for those alleged to be suffering from traumatic brain injury. Dr. Gerber found that the Applicant did poorly on that test and concluded therefore that the Applicant had suffered a traumatic brain injury. He did not discount the Applicant’s test results on the cognitive test because of the low score on the Rheys 15 test.⁴¹ Dr. Reznick’s opinion is that the cognitive test cannot be used to discount the Rheys 15 test and that Dr. Gerber has “put the cart before the horse” in doing so. The purpose of the Rheys 15 test is to determine if the results of a cognitive test, such as the clock face test, are due to malingering rather than a true impairment. Dr. Reznick testified that he knew of other instances where Dr. Gerber had relied on the test results of the Rheys 15 test to conclude the patient was malingering, and he could not explain why Dr. Gerber chose a different path in this case.

I prefer the evidence and conclusions of Dr. Reznick. I accept his opinion as to the classes of impairment in each of the domains. I note also that the evidence of the Applicant and his family and friend are consistent with the analysis by Dr. Reznick that led him to conclude a Class 2 Mild impairment in activities of daily living and Class 3 in social functioning. The Applicant testified that he has a relationship with his sons: he sees them regularly and they take care of at least some of his needs, even though the family is separated in living accommodation for at least part of the day. He is seen in the surveillance videos engaging in conversation and walking with a friend. He is able to engage with the staff at the medical offices, at stores and on the TTC. He agrees that he goes to restaurants, has coffee and conversations with friends. He is not totally isolated. As was shown in the testimony here, he has the love and support of his family members and good friends who are prepared to and do assist him.

The Applicant is able to contribute to the housekeeping and home maintenance of his friend’s apartment and his family’s. Mr. Turhan, who shares an apartment with the Applicant, testified that he does more than 50% of the housekeeping and home maintenance in the apartment since the Applicant moved in in late 2013. Therefore, the Applicant does something less than 50% but he does some. Mr. Turhan testified that the Applicant tries to cook and that he sometimes leaves the stove on and he may drop some dishes. Mr. Turhan’s evidence is not helpful to determine the extent to which the Applicant was entitled to housekeeping benefits for the two year period immediately following the accident but the evidence does establish some functioning on the part of the Applicant in housekeeping and home maintenance as part of daily living.

The Applicant’s impairments are therefore compatible with useful functioning in most environments. While his friend and family do not believe he can work because of his impairments, as will be discussed below, I am not prepared to attribute any impediment of that function to the accident.

I also discount Dr. Gerber’s assessment of the Applicant’s ability to focus and concentrate, his so-called cognitive difficulties to which his son and his friend testified, or that his level of impairment in complex or work-like environments is more than a Class 2 Mild impairment. I do not accept that the Applicant suffers from cognitive issues or, if he does, that they are caused by the accident. The Applicant began his evidence in this case in the morning of the first day of the Hearing and continued until approximately 2:00 p.m. on the second day. While he became irritable at times when his credibility was challenged, his evidence was given with the assistance of an interpreter and the Applicant was clearly able to focus on the questions and the issues for an extended period despite a stressful environment. I ensured that we took breaks in the evidence when the Applicant was unable to contain his anger at his truthfulness being challenged. I noted, however, that neither Dr. Reznick nor Dr. Paitich noted any irritability during their assessments or in the Applicant’s dealings with them.

In my view, by showing his irritability, the Applicant escaped answering the questions put to him in the Hearing when he was given the opportunity to explain inconsistencies in the evidence. While he did become impatient, his answers were organized and had a consistency that did not indicate an inability to focus or concentrate. When he was offered the opportunity to explain an inconsistency, he would say he could not remember or he could not dispute what was written or he would complain that the lawyer for Economical was calling him a liar or a “bad person”. When he was confronted with proof of his returning to work, he asked that a video of him working be produced and then he would agree that he worked after the accident. He was clearly a well-prepared witness who stuck to his answers, even if they were not directly responsive to the question. At the end of his evidence, when I asked him to describe his work, he was focused and did not appear to be tired or confused. Such a level of consistent attention to what was occurring in the hearing room does not support the portrait of a man who cannot be trusted alone or whose cognitive abilities make it impossible for him to return to the workforce or were the explanation for his low scores on the tests used to assess him. He does, however, see himself as a victim and repeatedly said so.

Dr. Gerber testified that the Applicant’s mental condition is a reaction to a life-threatening situation. I have clear evidence from Dr. Reznick that the Applicant’s history does not support a traumatic brain injury. I do not doubt that the initial impact from the vehicle that rear-ended him was a surprise to the Applicant and that the discourteous (and illegal) actions of the other driver in leaving the scene were insulting to the Applicant. I do not accept that one could reasonably view the accident as life-threatening, especially to an experienced driver such as the Applicant. The Applicant spent the first 20+ years of his working life as a truck driver in his father’s cartage business. He is not a new driver or someone unfamiliar with motor vehicles. The totality of the evidence does not support Dr. Gerber’s conclusion.

I do not dispute that the Applicant has mental or behavioural impairments that have been diagnosed as either Class 2 or Class 3 by Dr. Reznick. The Applicant was hospitalized in 2013 as a result of the consumption of multiple prescription medications. He was under a suicide pact with Dr. Pillai at the time, which he broke with this attempt. The Applicant is in a difficult position from which he may see little opportunity to go forward. He believes he has lost the respect of his sons. He has incurred substantial costs, in excess of $100,000.00, in pursuing benefits from Economical. He has had disagreements with his legal representatives. He has already declared personal bankruptcy once. He is now on welfare and living separate from his family. The Applicant has made decisions that may have seemed at the time to be to his benefit but at the present time, no longer seem to be to his benefit. One clear example is the choice to be self-employed so that he could deduct his car expenses from his income, something he would not have been able to do as an employed person, or the lack of clarity on his actual income as noted earlier. The result is a very low reported income that does not support a claim of $400.00 per week in accident benefits for income replacement. Things have not turned out as he planned and anger may be a natural response.

With respect to the physical impairments that form part of the whole person impairment under s. 2(1.2)(f) analyzed by Dr. Paitich, I accept Dr. Paitich’s evidence that the Applicant is not impaired beyond 5%. Dr. Paitich is an orthopaedic surgeon and a Fellow of the Royal College of Surgeons. He assessed the Applicant in 2010⁴² and as part of the catastrophic impairment claim in 2014.⁴³ He testified that the natural process of degeneration of the spine will commonly lead to pain for people in the 30 to 60 age bracket and that his task with patients referred to him for his clinical practice is to determine if someone’s pain is abnormal and beyond the range expected. He testified that everyone eventually gets back pain but we just do not want to have it. Patients usually tell him the compensatory strategies such as making their bed from a kneeling position. He assesses patients for spasm or guarding, such as whether they can get up or down from the examining table.

Dr. Paitich observed that the Applicant sat during the assessment as if he had no need to adjust his position due to pain. There was some reduction in range of motion under testing, but Dr. Paitich described his range of motion as normal. Dr. Paitich’s opinion was that what the Applicant was telling him was inconsistent with what patients with back pain usually tell him, and his examination was inconsistent with his not being able to do things. Dr. Paitich noted that the range of motion was better in the Applicant when he was not aware of his being assessed. There was no spasm or guarding. Dr. Paitich provided an addendum report following review of the video surveillance.⁴⁴ He noted that the Applicant bent forward without compensation when he was on the balcony, and that he was sweeping the balcony. Dr. Paitich observed no restrictions in the neck. He observed that a person could do almost all housekeeping tasks with some loss of range of motion. He observed no compensatory strategies in the way the Applicant moved and that there were no objective findings, including no imaging test results, to support a causal link between the accident and the Applicant’s reported limitations.

Dr. Paitich was extensively cross-examined on the differences between his conclusions and those of the other health care providers who assessed the Applicant’s physical impairments on retainer of his own counsel. Dr. Paitich was firm that he saw no causal relationship between the accident and the impairments or complaints of the Applicant. He was firm that, if you move in spite of pain, you get better. He assessed the impairment of the Applicant as 5% on his orthopaedic examination. He was asked to explain why people go for years without symptoms, for instance from smoking, and then have significant complaints. He indicated that people’s anatomy and habits catch up with them and that that history and profile is very common.

Dr. Paitich also provided the executive summary of the whole person impairment based on reports from the occupational therapist, Dr. Reznick and Dr. Yufe, a neurologist who found no neurological impairment. Only Dr. Reznick found an impairment that was measurable and that was assessed at 10% to 20%. When combined with Dr. Paitich’s orthopaedic assessment of 5%, the total whole person impairment is 24%, substantially below that of the 55% required by the Schedule. I accept the assessments as summarized by Dr. Paitich and find that the Applicant has a 24% whole person impairment and no Class 4 or Class 5 mental or behavioural impairment.

Issues 2 and 3: Is the Applicant entitled to income replacement benefits and if so, what is the quantum of those benefits?

To obtain income replacement benefits under the Schedule, the Applicant must establish that in the first 104 weeks after the accident he suffered from a substantial inability to perform the essential tasks of his employment. For any income replacement benefits after 104 weeks, the Applicant must establish that he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

At the outset of the Hearing, Economical moved to prevent a witness who was a co-worker of the Applicant from testifying. According to counsel for the Applicant, the purpose of calling the witness was to establish the income that the Applicant could have earned as a stucco worker before the accident. I ruled that, since the relevant information for the purpose of the calculation of the benefit was the income reported to the Canada Revenue Agency, the evidence of what might have been earned prior to the accident was not relevant, and thus, I granted the Motion. Also, the Applicant sought to have admitted reports dealing with future earnings and income loss after the accident that apparently were prepared for the tort proceedings. Economical objected to them as irrelevant and not served in accordance with the Dispute Resolution Practice Code (“DPRC”). I ruled that those reports were inadmissible, as non-compliant with the DPRC. There was one further expert report which also had not been disclosed to Economical, by a Maria Tennen, dated March 31, 2011, which I held was also not admissible.

The Applicant is seeking $400.00 per week from December 10, 2010 and ongoing in income replacement benefits. He testified that he was self-employed prior to the accident. As proof of his income, he has provided two cheques⁴⁵ which total $4,160.00 and which, according to his income tax return, constituted his entire income for 2008. The two cheques issued by Red Star Construction are dated August 9 and 25, 2008 and specify on their face that they are for 80 hours of work at $26.00 per hour. Based on these cheques and the income tax returns which identify the Applicant as self-employed and provide his income, Economical submits that the weekly income replacement benefit should be $64.00. The Applicant did not dispute that quantification.

The Applicant is claiming income replacement benefits for the first 104 weeks on the basis that the impairments suffered in the accident were such that he was substantially unable to perform the essential tasks of his employment as a Master stucco worker and for post 104 accident benefits, on the basis that he is completely unable to engage in any employment for which he is reasonably suited by education, training or experience.

In reviewing the income tax returns of the Applicant, the Applicant filed as a self-employed individual, deducting business expenses from his gross business income in 2005 and 2006, predominantly motor vehicle expenses, and again in 2008. In 2007, he declared only $1.00 of earnings, and in 2008, he declared personal bankruptcy. I was not provided with any information as to his earnings in his own company. There is a difference between his evidence as to when he worked in the years prior to the accident and the amount of income he declared.

As noted above, a Return to Work Review commissioned by the Applicant was conducted by Willis Health Services Inc. and a report was prepared, dated July 31, 2012.⁴⁶ The Applicant was known to the author of the report personally and professionally but no conflict of interest was identified.⁴⁷ The purpose of the report was to identify vocational treatment needs of the Applicant. The author found that the Applicant was physically and psychologically incapable of returning to his pre-accident position and that further successful rehabilitation/reintegration services were warranted before he could return to any direct entry competitive position. The author cited research that indicated that an injured worker had a 50% chance of returning to work if off for 6 months, a 10% chance if off for one year, and essentially no chance of returning to work after being off for two years or more.

The author concluded that the combination of age, limited transferable education, physical barriers, chronic physical pain and the overall loss of clearly obtainable goals and true modality to achieve those goals prohibit the Applicant’s placement in a job. The author recommended that the Applicant must learn how to better manage his pain and psychological symptomatology before he can attempt a return to the workforce or retraining.⁴⁸ The author recommended a functional capacity evaluation, a physical functional personal training program, reinstatement of household management and housekeeping, psychological counselling to overcome pain focus and driving phobia, a review of medication by a physiatrist, a sleep analysis, massage therapy, English as a Second Language program, in-patient chronic pain review, occupational therapy services and ergonomic intervention, rehabilitation counselling, full psycho-vocational testing and educational counselling.⁴⁹

The Applicant provided no evidence as to any progress on any of these recommendations. The Applicant denied that he had been given any exercise program by a physiotherapist or chiropractor to assist in his recovery. He had not pursued any additional English language training. He made two attempts to return to work, one in November 2010 when he worked for Pacific Stucco⁵⁰ for two days but he could not work for any further time due to exacerbation of his pain. He testified that he had a job as a dish washer at a restaurant for a brief period after the accident and, because he dropped some plates which broke, the owner would not keep him on.

Economical obtained in 2010 a Functional Abilities Evaluation, a Transferable Skills Analysis Report, and a Labour Market Survey Report.⁵¹ The author was not called to testify but a review of the reports indicates that the Applicant was determined to have transferable skills but his lack of education and limited English skills were the major barriers assessed in 2010. The employment opportunities that were identified were parking lot attendant, laundromat attendant and ticket taker or usher. These occupations have light or lower physical demands than most others, but they clearly do not require the skill that the Applicant was required to have in his construction job. His opportunities to become a truck driver were limited because of weak English language skills. The author concluded that from a functional perspective, the Applicant did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training and experience.

Economical submits that the Applicant is not entitled to income replacement benefits for any period post 104 weeks after the accident. Its position is that the Applicant was able to perform the essential tasks of his employment in the first 104 weeks after the accident because he told his gastroenterologist, Dr. Sullivan, that he had returned to work at a post-operation check-up on September 17, 2008, within six weeks of the accident. He was observed by the doctor to have recovered “quite nicely” from the surgery.

Economical also relies on the report of another doctor to the Applicant’s family doctor, this time a cardiologist, who recorded that the Applicant was injured at work in February 2010 in a slip and fall accident leading to a sudden onset of chest pains accompanied by palpitations.⁵²

The Applicant submits that the report of the cardiologist cannot be relied on because it refers to the Applicant as a 35 year old man, not a 48 year old man as he was at the time of the examination. Also the report refers to him as a non-smoker. The report specifically says that it was dictated but not read, so the potential for error is clear. Neither party called the cardiologist to testify. The Applicant said he had no recollection of seeing this particular doctor but, given the number of doctors he has seen, that is not particularly surprising and does not completely answer the fact that this report does exist.

In contrast to the Applicant’s concerns regarding the cardiologist’s report, the Applicant cannot dismiss the report by Dr. Sullivan as not factual. Dr. Sullivan had seen the Applicant on several occasions in 2007 and 2008. The observation by the doctor that the Applicant was able to get up on the examination table on his own is inconsistent with the Applicant struggling with pain in his left arm and leg, being dizzy, fighting nausea and headaches, and struggling with severe lower back pain and neck pain as a result of the accident which was less than a month earlier than this appointment with Dr. Sullivan. Dr. Sullivan would be very interested in his patient’s recovery after surgery, and the ability of the patient to return to work would have been of special note. Unlike the cardiologist who apparently saw the Applicant only once, Dr. Sullivan had been treating the Applicant for over a year at this point and the surgery in September 2008 was something he had recommended in the previous year. I have no reason to doubt the truth of the statement that Dr. Sullivan understood that the Applicant had returned to work.

Economical also submits that the Applicant lied on his Application for Accident Benefits, in that he applied as an employee employed by an unidentified employer from August 6, 2008 to “present” for 45 hours per week at $1,350.00 per week.⁵³ The OCF-2, Employer Confirmation Form, submitted⁵⁴ by Red Star Construction, provided different dates of employment (July 28, 2008 to August 22, 2008) and a different gross weekly income ($1,040.00 per week). The pay cheques referred to above, are attacked by Economical as being false in that the two cheques are sequentially numbered but are dated two weeks apart. Economical says it is unlikely that a construction company would not have issued other cheques within that range of dates and therefore the employer has not been truthful in claiming the Applicant as an employee.

I find that the Application for Accident Benefits in which the Applicant identified himself as an employee was not accurate. I am not persuaded on the balance of probabilities that the Applicant has given an accurate history of his work and income either before the accident or after the accident.⁵⁵ I find that the Applicant did work for Red Star Construction, but as a self-employed Master stucco and plaster worker for the amount shown on the cheques for the four weeks and that that amount, being the amount declared on his income tax returns, is the only amount on which to base the amount of the accident benefits. I find that the Applicant did return to work after his surgery and that he was not prevented from working by the accident. I do not accept the Applicant’s evidence that he has not returned to work or that he could not do so, due to the pain from the accident injuries. There are too many inconsistencies in his evidence for me to accept that he stopped working longer than was required for his abdominal surgery. The Applicant’s wife testified that his ulcers did not stop him from working, that he did not pay that much attention to them, and that he would go to hospital for the pain and then go to work.

The Applicant has not satisfied me that his language skills in English are so inadequate that he could not obtain employment for which he was qualified by education, training and experience. Dr. Paitich and Dr. Pillai had no difficulty in understanding what he said and he appeared to have no difficulty understanding them, in the period 2010 to 2012. If one accepts that the Applicant could not return to his job in construction, then the language difficulty was one of two identified major barriers to his having opportunities in other fields. I am not satisfied on the evidence that the Applicant had as significant a language difficulty in the period 2010 forward that he could not have found suitable work because of his injuries. In all aspects, the evidence does not establish on the balance of probabilities that, as a result of this minor accident, the Applicant suffered a complete inability to engage in any employment for which he is reasonably suited by education, training and experience.

I also cannot dismiss in this case the potential that secondary gain influenced the Applicant’s portrayal of his symptoms and his difficulties getting work. On the evidence, the Applicant received from Economical approximately $60,000 in benefits over a two year period.

Issue 4: Is the Applicant entitled to receive medical benefits for OCF-18, dated November 24, 2010, for $1,400.00 for an orthopedic mattress?

There was little, if any, evidence to support this claim beyond the OCF-18 which was entered as Exhibit 27. The OCF-18 was prepared by Dr. R. Nejad of HealthCare Management Group and the injury identified as a direct result of the accident at this time in 2010 is chronic recurring sprain and strain of the cervical spine and chronic persisting sprain and strain of the lumbar spine. The medical benefit is sought because the patient “continues to experience recurrent pain on exertion, loading and repetitive tasks.” The goals include pain reduction, increased range of motion, reducing mechanical strain and “improving body/posture pressures”. The onus is on the Applicant to show that this expense is reasonable and necessary and I do not find it to be properly supported in the evidence. I prefer the evidence of Dr. Paitich concerning the Applicant’s physical impairments in 2010 when he did an Independent Examination of the Applicant.

Issue 5: Is the Applicant entitled to attendant care benefits in the amount of $716.20 per month for the period of August 24, 2008 to August 24, 2010?

Economical’s position is that the Applicant is not entitled to any further attendant care benefits beyond those paid and that he must prove that he incurred reasonable and necessary expenses as a result of the accident for services provided by an aide or attendant or services provided by a long-term care facility.

The Applicant bears the onus to prove that attendant care benefits were required as a result of the accident. Exhibit 25 is an Assessment of Attendant Care Needs conducted on September 29, 2008 by Dr. Nejad. The Applicant had no recollection of this assessment. The Assessment indicates that the Applicant needed assistance dressing and undressing his upper body and grooming assistance only with nail care. He required assistance with meal preparation, serving and feeding. The balance of his needs related to cleaning the bathroom after use, changing bedding, and assistance with clothing. He required assistance with a prescribed exercise program for 20 minutes every day.

The assessment is consistent with the evidence that has been given by the family. The surveillance evidence is not of assistance as it does not relate to the 104 week period in question. The attendant care benefits have been paid as calculated and Economical indicated that they were not seeking to have them repaid. The Applicant is entitled only to benefits for the period of two years from the date of the accident unless he is catastrophically impaired. I have found that he is not.

While I have found that the Applicant is not entitled to income replacement benefits because he did return to work, I accept the evidence of the Applicant’s wife and son that he was unable to do all his self-care tasks after the accident because of pain he suffered from his injuries and that he needed assistance from them for the two year period. I find that the range of motion issues in the upper back and shoulder and associated pain would make it difficult to put on a shirt or shower, for instance, but that part of self-care in dressing and undressing would not necessarily have prevented him from returning to work. I have no evidence that the abdominal surgery interfered with his upper-body self-care for any period, and I am satisfied that the accident was a major contributor to his limitations. I conclude that the Applicant would have been able to recover from his abdominal surgery and be independent in self-care but for the accident. While the case law indicates that I should have specific information as to the exact nature and extent of the attendant care services provided, for the claim to be successful,⁵⁶ I find that evidence in the Form 1 and in the evidence of the family members confirming the Applicant’s testimony.

I therefore find that the Applicant is entitled to the attendant care benefits claimed for the first 104 weeks after the accident but for no longer a period.

Issue 6: Is the Applicant entitled to payment for housekeeping and home maintenance services in the amount of $100.00 per week for the period of August 24, 2008 to August 24, 2010?

Again, the Applicant bears the onus to prove that housekeeping and home maintenance benefits were required as a result of the accident and that he suffered an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident. Economical filed numerous reports prepared in 2010 at the 104 week post-accident point in time by an occupational therapist, a psychologist, a chiropractor and an orthopaedic surgeon who assessed the Applicant and determined that he does not suffer a substantial inability to complete his pre-accident housekeeping.

The benefits have been paid and Economical indicated that it is not seeking to have them repaid. The Applicant is entitled only to benefits for the period of two years from the date of the accident unless he is catastrophically impaired. I have found that he is not.

The claim must also be for reasonable amounts. The Applicant’s wife testified that, prior to the accident, the Applicant helped her with housekeeping tasks, even though she was working part-time and he was working full-time. She was cross-examined on the contents of Exhibit 17, which she signed, setting out the details of the work she and her son did in place of her husband. The housekeeping/home maintenance forms in Exhibit 17 cover the period of March 9 to July 12, 2009, not the full two years that has been paid, and she testified that these forms were all filled out at the same time. The forms all reflect precisely the same amount of time per week, 25.3 hours, and I was not able to discern any difference from one week to the next in the time spent on each of the tasks listed.

In the forms in Exhibit 17, the Applicant’s wife claimed that she and her husband spent 50 hours a week cleaning the one-bedroom apartment prior to the accident. She testified that she did not know how much time they spent and that she is getting forgetful. She believed the information on the forms to be true. She could see that the amounts claimed seemed excessive and said “I am not saying this form is wrong”.

Economical’s position is that the claim lacks adequate proof. The only detailed statements as to the services that were provided by the Applicant’s family related only to 2009 and the cross-examination of the Applicant’s wife established that the time estimates of the Applicant’s contribution to housekeeping and home maintenance had been grossly exaggerated.

The details in the Attendant Care Assessment focus on upper body and extension for personal foot care. I accept that the accident injuries would interfere with the Applicant continuing to assist in at least some of the housekeeping for a period of time. I accept the evidence of his wife that she assumed the full burden, shared with Okan. Dr. Paitich testified that the abdominal medical condition and surgery would have made an individual less active. I conclude however that the claim is significantly exaggerated and not properly documented. I find that the Applicant has failed to prove all the elements required to support the claim for benefits for the housekeeping and home maintenance services. I therefore find that the Applicant is not entitled to housekeeping and home maintenance benefits.

Issue 7: Is the Applicant entitled to payments for the cost of examinations by Psychology Associates for $2,238.00 pursuant to an OCF-18, dated December 27, 2011?

As noted above, the Applicant has been assessed and treated by Dr. Pillai and his associate, Dr. J. Douglas Salmon, who are in the same organization, Psychology Associates. The onus is on the Applicant to show that the examinations are reasonable and necessary. I have the evidence of Dr. Pillai, the Applicant’s treating psychologist, including at least some of his clinical notes and records. I find that the cost of examinations was reasonable and necessary and that the Applicant is entitled to payment for this benefit.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, any party requesting expenses shall file with me and with the opposing party a written submission setting out the request for expenses and any supporting material within 30 days of the issuance of this decision. The opposing party shall file with me and with the party requesting expenses its responding submissions within 20 days of receipt of the request for expenses. The party requesting expenses shall file with me and the opposing party its reply material within 10 days of receipt of the responding material. I will determine the entitlement and quantum of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

August 2, 2016

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 206

FSCO A12-001626

BETWEEN:

COMERT TOPRAK

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant did not sustain a catastrophic impairment as a result of the accident within the meaning of the Schedule.

2. The Applicant is not entitled to receive a weekly income replacement benefit from December 10, 2010 and ongoing.

3. The Applicant is not entitled to receive medical benefits for $1,400.00 for an orthopedic mattress per the OCF-18, dated November 24, 2010.

4. The Applicant is entitled to attendant care benefits in the amount of $716.20 per month for the period of August 24, 2008 to August 24, 2010.

5. The Applicant is not entitled to payment for housekeeping and home maintenance services in the amount of $100.00 per week for the period of August 24, 2008 to August 24, 2010.

6. The Applicant is entitled to payments for the cost of examinations by Psychology Associates for $2,238.00 pursuant to an OCF-18, dated December 27, 2011.

7. The Applicant is entitled to interest on any overdue payments.

8. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, any party requesting expenses shall file with me and with the opposing party a written submission setting out the request for expenses and any supporting material within 30 days of the issuance of this decision. The opposing party shall file with me and with the party requesting expenses its responding submissions within 20 days of receipt of the request for expenses. The party requesting expenses shall file with me and the opposing party its reply material within 10 days of receipt of the responding material. I will determine the entitlement and quantum of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

August 2, 2016

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 3, Tab 1, Motor Vehicle Accident Report, August 24, 2008, Time: 18:50.
3. 3Exhibit 3, Tab 2, Collision Field Notes: Witness/Supplementary of Comert Toprak, August 24, 2008.
4. 4Exhibit 3, Tab 3, Ambulance Call Report, dated August 24, 2008, and Tab 4, Emergency Record from Humber River Regional Hospital, dated August 24, 2008.
5. 5Exhibit 12, OCF-2 from Red Star Construction, dated September 9, 2009.
6. 6Exhibit 12, p. 2.
7. 7Exhibit 2, Tab 6F.
8. 8Exhibit 1, Tab 14D.
9. 9Exhibit 2, Tab 6D, Bankruptcy Identification Form – date of assignment February 15, 2008.
10. 10Ontario Disability Support Plan.
11. 11Exhibit 2, Tabs 3A, 4A, 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12C.
12. 12Exhibit 6, Tab 5, Final Note May 11, 2007, St. Joseph’s Health Centre.
13. 13Exhibit 6, Tab 7, Letter Report to Dr. A Bogosyan, August 11, 2007.
14. 14Exhibit 6, Tab 8.
15. 15Exhibits 6, Tabs 17 and 18.
16. 16Exhibit 1, Tab 1, Report of Dr. Bergman, Family Physician, August 12, 2012, at p. 2.
17. 17Exhibit 2, Tab 12A, Notice of Garnishment, February 3, 2014.
18. 18Exhibit 26.
19. 19Exhibit 1, Tab 6, report of Dr. Potashner, dated June 27, 2011, and Tab 3, report of Dr. Prutis, dated November 19, 2013.
20. 20Exhibit 1, Tab 6 at p. 26.
21. 21Exhibit 4, Tab A7, March 8, 2010, at p. 5 and Tab 18, October 21, 2010.
22. 22M.L. and Economical Mutual Insurance Company, A09-001059 (October 20, 2011), at p. 27.
23. 23Pastore v. Aviva Canada Inc., 202 ONCA 642 at para. 6.
24. 24Exhibit 26.
25. 25Op. cit., at paras. 45 and 46.
26. 26Exhibit 1, Tab 9.
27. 27Exhibit 1, Tab 10.
28. 28Exhibit 1, Tab 9, p. 25.
29. 29Exhibit 22, 3rd page.
30. 30Ibid.
31. 31Exhibit 1, Tab 10, pages 40-44.
32. 32I note here that Dr. Bhalerao rated the Applicant’s Global Assessment of Functioning at below 55 in the report at Exhibit 1, Tab 2 of September 27, 2012.
33. 33Exhibit 1, Tab 10, page 42.
34. 34Exhibit 19, 4th - 6th pages.
35. 35No CT scan results were provided in the evidence.
36. 36Exhibit 19, first page.
37. 37Exhibit 1, Tab 2.
38. 38Exhibit 4, Tab B2.
39. 39Exhibit 1, Tab 8.
40. 40Exhibit 4, Tab B2, at p. 12.
41. 41Exhibit 1, Tab 10, p. 47-48.
42. 42Exhibit 4, Tab A14, Report, October 1, 2010.
43. 43Exhibit 4, Tab B1 and 4.
44. 44Exhibit 4, Tab B7, Addendum Report, dated April 21, 2016.
45. 45Exhibit 2, Tabs 6G and H.
46. 46Exhibit 1, Tab 14.
47. 47Ibid., at p. 3.
48. 48Ibid., at p. 66.
49. 49Ibid., at p. 61 to 63.
50. 50Exhibit 1, Tab 14, p. 37.
51. 51Exhibit 4, Vol. 1, Tabs 15, 16 and 17.
52. 52Exhibit 13, Tab 4, Report of Dr. Chessex, dated April 6, 2010.
53. 53Exhibit 5 - Application for Accident Benefits.
54. 54Exhibit 12.
55. 55Exhibit 4, Tab A4, p. 3 - I note that the assessor in the Functional Capacity Evaluation records the Applicant telling him that he was unemployed for the month prior to the accident.
56. 56Grewal and AIG Commercial Insurance Company of Canada, FSCO A09-002980 (August 7, 2014), at pp. 11-12.