Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 248 FSCO A13-013479

BETWEEN:

JAVED RENTIYA Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Barry S. Arbus, Q.C. Heard: In person at ADR Chambers on July 11, 12 and 13, 2016 and by written submissions received on July 25, 2016 Appearances: Mr. Jono Schneider for Mr. Javed Rentiya Ms. Anju Sharma and Mr. Derek Yap for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Javed Rentiya, was involved in a motor vehicle accident which occurred on September 29, 2011. The Applicant applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”) payable under the Schedule.¹ The parties were unable to resolve a number of issues in dispute through mediation and the Applicant 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:

1. Is the Applicant entitled to Income Replacement Benefits (“IRBs”) from April 15, 2012 to date and ongoing?
2. Are the Applicant’s impairments subject to the Minor Injury Guideline as defined by the Schedule?
3. If the Applicant’s injuries do not fall within the Minor Injury Guideline, is the Applicant entitled to various treatment plans, assessments and costs of examination?
4. Is the Applicant entitled to a Special Award?
5. Is the Applicant entitled to interest on overdue payments in accordance with the Schedule?
6. Is either party entitled to expenses?

Result:

1. The Applicant is entitled to IRBs from July 15, 2012 to September 29, 2013 in the amount of $281.80 per week, less the amount paid, if any. The Applicant is not entitled to IRBs beyond two years after the date of the accident.
2. The Applicant is subject to the Minor Injury Guideline, and accordingly the cap of $3,500.00 on Medical and Rehabilitation Benefits as defined by the Schedule.
3. The Applicant is not entitled to funding for the treatment plans and assessments in dispute.
4. The Applicant is not entitled to a Special Award.
5. The Applicant is entitled to interest on overdue payments at the rate prescribed by the Schedule.
6. The parties are encouraged to resolve the issue of expenses, but if they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE & ANALYSIS:

BACKGROUND

The Applicant was born in India in 1979 where he attained the equivalent of a Grade 8 education. He came to Canada in 2005 and immediately went to work at Alysco International Group Inc. (“Alysco”) where he was working at the time of the accident. He was married in 2003 and at the time of the accident, he had two children.

In March 2010, the Applicant had a work-related accident, took a few months off work, returned with modified duties for 2 to 3 months and resumed his regular duties until the date of the accident. The Applicant explained that he worked a 40-hour week, Monday to Friday. The Applicant described that his job entailed lifting 80 – 100 lb. bales of clothing and moving them within the warehouse at Alysco.

Prior to the accident, he explained he had a normal social life including attending the mosque, visiting friends, playing cricket and enjoying his family relationships.

The accident occurred when the Applicant’s car was hit on the driver’s side by a third party. Mr. Rentiya was taken to hospital and his injuries were treated.

The Applicant described his injuries as including headaches, neck pain, left elbow pain, left knee pain and lower back pain. He also indicated that he suffered no pain before the accident, now has difficulty sleeping (he wakes up one or two times per night), has anxiety driving on the highway, and his relationships with his wife, children, friends and at the mosque have deteriorated somewhat. He indicated that he is unable to do his work at Alysco because of the pain.

The Applicant speaks virtually no English, only Gujarati.

DECISION

Entitlement to IRBs

The Applicant’s Position

The Applicant’s counsel states that Mr. Rentiya has been unable to return to any form of employment given his limited education, limited training, limited experience, and his physical and emotional disability.

The Applicant’s counsel claimed that at the time the Applicant’s IRBs were terminated, he suffered from neck, lower back, left elbow and left knee pain, in addition to suffering from headaches, dizziness, sleeping difficulties and emotional difficulties. The Applicant’s counsel argues that the medical specialists’ reports obtained (Dr. Gozlan, Dr. Cooper and Dr. Vitelli) all comment on Mr. Rentiya’s inability to work from an emotional perspective. The doctors all opine that Mr. Rentiya does not have the functional capacity of lifting, pushing or pulling heavy items for prolonged periods of time so that he is unable to return to any form of employment. The Applicant’s counsel submits that the Applicant suffers from widespread, chronic pain, an injury to his left knee, and insomnia, collectively preventing him from returning to work.

The Insurer’s Position

The Insurer takes the view that the Applicant’s physical status essentially stayed the same after the accident as it was before. The Insurer provided evidence that the Applicant was not required to lift 100 lb. bales at work. He was required to assemble them (out of used clothing) and push them around on wheeled carts, so that the requirement of strength and heavy lifting was exaggerated. The Insurer argues that the Applicant made no attempt to return to work, whether in the same capacity or with modified duties as a result of the accident. The Insurer submits that the Applicant’s lack of fluency in the English language should not be a bar to his ability to make reasonable efforts to return to work or seek alternative suitable employment.

The Law regarding IRBs

The Schedule test for IRBs up to the two-year mark following the accident is that of the substantial inability to perform the essential tasks of his or her employment. After the first 104 weeks of disability, the Insurer is not required to pay an IRB unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited.

Period of Benefit

Section 5(1) of the Schedule:

5(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

1. The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment,

Section 6(2) of the Schedule:

6(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

The evidence provided by the Applicant himself and supported by his medical reports supports the position that for the first 104 weeks following the accident, the Applicant suffered a substantial inability to perform the essential tasks of his employment. The medical evidence submitted by Drs. Trevisan, Gozlan and Cooper, and a Functional Capacity Evaluation performed by Dr. Rick, support this position.

However, the medical reports provided by the Applicant’s counsel, together with the evidence of the Applicant himself and that of Dr. Hines and Dr. Urovitz failed to find any objective musculo-skeletal impairment present. The medical reviews for both the Applicant and the Insurer’s medical experts show there is no evidence of any traumatic physical or structural pathology involving the left knee that prevented the Applicant from engaging in his pre-accident employment, or any employment for which he is reasonably qualified on the basis of his education, training and experience. Since the accident, it does not appear that the Applicant has actively looked for any other jobs. The Applicant argued that he is unemployable due to poor English, but when he arrived in Canada, his lack of English was not an obstacle to securing employment and I do not feel that today a lack of English should be an impediment from seeking employment in the future.

Accordingly, although I am satisfied that the Applicant has suffered a substantial inability to perform his pre-accident employment, I am not satisfied that the Applicant has suffered a “complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience” (i.e., the test for the period beyond two years following the accident).

Minor Injury Guideline

The Applicant’s Position

The Applicant submitted an application claiming his injuries removed him from the Minor Injury Guideline of the Schedule. The Applicant’s position is supported on the basis of, first, claiming Mr. Rentiya’s impairments include a complete tear of the left knee, specifically to the medial meniscus, which would remove him from the limitations set out by the Minor Injury Guideline.

Secondly, the Applicant’s counsel claims that Mr. Rentiya suffered from trauma as diagnosed by Dr. Gozlan, a psychologist who diagnosed Mr. Rentiya with Major Depressive Disorder, and post-traumatic insomnia by Dr. Wong, his physiatrist; a Chronic Adjustment Disorder diagnosed by Dr. Cooper, the psychiatrist; and Adjustment Disorder suggested by Dr. Vitelli.

The third argument of the Applicant is that Mr. Rentiya has chronic pain consisting of headaches, neck pain, elbow pain, lower back pain and left knee pain, along with insomnia and nightmares, anxiety, depression and social isolation. This position, the Applicant claims, is supported by the opinions of his treating psychologist (Dr. Gozlan), registered nurse (Amanda Patterson), Dr. Rick (a chiropractor), Drs. Cooper, Wong and Vitelli, along with an orthopaedic surgeon (Dr. West) and a chiropractor, Dr. De Bora. The Applicant also argues that Wawanesa’s witness, Dr. Hines (a psychiatrist), provided oral evidence confirming that Mr. Rentiya’s symptoms are consistent with chronic pain, which can be debilitating.

The Applicant’s position is that the Insurer never provided contradictory evidence to that of the Applicant confirming his chronic pain.

The fourth argument of the Applicant is that Mr. Rentiya had a pre-existing condition which became aggravated as a result of the car accident. The Applicant argues that the Insurer was aware that he had an aggravation of his pre-existing condition from the outset.

The Insurer’s Position

The Insurer submits that the Applicant has not produced sufficient evidence to support removing him from the Minor Injury Guideline. The Insurer submits that the day following the accident, on September 30, 2011, the Applicant underwent an x-ray on his left knee showing no abnormality in the knee. Further, on January 26, 2012, Dr. Patel, the Applicant’s family doctor, did an examination of the knee which showed a good range of motion and no other abnormalities. Dr. Urovitz gave evidence that in April 2012, when he performed an orthopaedic assessment on the Applicant, this revealed that there was no objective injury compatible with the examination. Following the MRI conducted in August 2013, the Applicant’s family doctor referred him to Dr. Kraemer, an orthopaedic surgeon at Toronto East General Hospital, who saw him in October 2013 and noted that the Applicant had a normal MRI.

The Insurer argues that the August 13, 2013 MRI is not causally related to the accident, nor is it of a clinical significance to warrant treatment outside of the parameters of the Minor Injury Guideline.

In addition, the Insurer submits that with respect to the claims for dysfunction as a result of trauma, the assessment of Dr. Trevisan in March 2012 revealed symptom embellishment and sub-optimal effort on the part of the Applicant, not yielding objective and reliable evidence to support the presence of an accident-related psychological impairment.

Dr. Hines, a psychiatrist, assessed the Applicant on June 19, 2013 and found that the Applicant did not have a psychiatric illness or diagnosis, and felt that additional psychological treatment was not reasonable and necessary. His evidence at the Hearing confirmed that he stood by these original conclusions and opinions. He felt that the Applicant’s behaviour in purchasing a new car and driving immediately after the accident were not compatible with someone having driving anxiety.

With respect to the claim for chronic pain, Dr. Hines opined in his evidence that the reports of Dr. Gozlan and Dr. Cooper were not valid chronic pain assessments, particularly in light of the fact that neither one recommended psychiatric medication for the Applicant. The degree of medication taken by the Applicant is at the lowest possible level of the drug and not a therapeutic dosage.

The Insurer submits that the Applicant has not produced any compelling evidence that psychological impairments or chronic pain are predominant post-accident injuries sufficient to remove him from the parameters of the Minor Injury Guideline.

The decision in Lo-Papa and Certas² set forth the relevant overview of the law concerning the Minor Injury Guideline:

It is clear that the onus of proof is with the Applicant to establish that the injury falls outside the Minor Injury Guideline (and therefore is not subject to the Minor Injury Cap of $3,500). In the appeal decision of Scarlett v. Belair³, Director’s Delegate Evans stated clearly that “the burden of proof always rests on the insured of proving that he or she fits within the scope of the coverage”.

The law, briefly, provides that,

• a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury [Schedule, s. 3(1)]
• an insured who sustains an impairment that is predominantly a minor injury can receive no more than $3,500 towards medical and rehabilitation expenses (including assessments) [Schedule, s. 18(1)]
• an exception for pre-existing conditions may apply based on “compelling evidence” [Schedule, s. 18(2)]

The Law regarding Minor Injury Guideline

In determining whether an insured person has extricated themselves from the restrictions of the Minor Injury Guideline, the burden of proof clearly rests with the Applicant. The Applicant in this case claimed there were four bases for removing him from the Minor Injury Guideline. These were, first, claiming he had a complete tear of the left knee; second, his dysfunction stemmed primarily from trauma; third, he had chronic pain; and, fourth, he had a pre-existing condition that removed him from the restrictions set out in the Schedule.

I am not satisfied that the Applicant has satisfied the burden of proof resting on him. The medical evidence of Drs. Hines and Urovitz, together with the written report submitted by the Insurer, outweighs that submitted by the Applicant, including the evidence provided by Mr. Rentiya himself.

Accordingly, I am satisfied that the Applicant is subject to the provisions of the Minor Injury Guideline.

Medical and Rehabilitation Benefits, Assessments and Costs of Examination

Because I find that the Applicant remains subject to the Minor Injury Guideline, it is not necessary to deal with the various treatment plans submitted by the Applicant and outlined in the Application since he has already used the full $3,500.00 cap in Medical and Rehabilitation Benefits.

Claim for Special Award

The Applicant’s Position

The Applicant is advancing a claim for a Special Award based on the Insurer’s unreasonably withholding or delaying payments for a number of benefits. The Applicant submits that the behaviour of the Insurer, despite having compelling surveillance evidence of the Applicant walking slowly, limping and unable to remove groceries from his car should entitle the Applicant to a Special Award. He also argued that by awarding a Special Award, it will deter the Insurer and other Insurers from acting similarly in the future.

The Insurer’s Position

The Insurer states that it has, at all times, acted in good faith in the handling and adjusting of the Applicant’s claim for accident benefits.

The Law

The law in this area is clear. Under the provisions of s. 282(10) of the Insurance Act, it is within the jurisdiction of the Hearing Arbitrator to consider the Applicant’s claim for a Special Award.

Section 8 of the Statutory Powers Procedure Act provides:

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.⁴

I am satisfied that the Insurer did not engage in any actions so as to warrant a Special Award. The Insurer owes a duty of good faith to the Applicant to assess the merits of his claim in a balanced and reasonable manner and to make its decision on the best available evidence without preferring its own interests over those of the Applicant.

I am satisfied that in order to find a Special Award in favour of the Applicant, the delay or withholding of benefits must be unreasonable. In the decision of Plowright and Wellington,⁵ Arbitrator Palmer described unreasonable behaviour in the withholding of payments as, “behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. I am satisfied that the decision of the Insurer in withholding payments did not meet this stringent test.

I am therefore denying the Applicant’s request for a Special Award.

Interest

The Applicant is entitled to interest on all overdue payments at the rate prescribed by the Schedule.

EXPENSES:

The parties made no submissions on expenses. They are encouraged to resolve this issue but if they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

September 19, 2016

Barry S. Arbus, Q.C. Arbitrator

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 is entitled to an Income Replacement Benefit from July 15, 2012 to September 29, 2013 in the amount of $281.80 per week, less the amount paid, if any. The Applicant is not entitled to Income Replacement Benefits beyond two years after the date of the accident.
2. The Applicant is subject to the Minor Injury Guideline cap of $3,500.00 as defined by the Schedule.
3. The Applicant is not entitled to funding for the treatment plans and assessments in dispute.
4. The Applicant is not entitled to a Special Award.
5. The Applicant is entitled to interest on overdue payments at the rate prescribed by the Schedule.
6. The parties are encouraged to resolve the issue of expenses, but if they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

September 19, 2016

Barry S. Arbus, Q.C. Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Lo-Papa and Certas Direct Insurance Company (FSCO A12-005538).
3. 3Scarlett and Belair Insurance Company Inc. (FSCO Appeal P13-00014).
4. 4R.S.O. 1990, c. S.22, s.8.
5. 5Plowright and Wellington Insurance Company (FSCO A93-003985).