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

Neutral Citation: 2016 ONFSCDRS 283

FSCO A15-001285

BETWEEN:

STELLA COBBY

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

Before: Arbitrator Barry S. Arbus, Q.C.

Heard: In person at ADR Chambers on August 3, 4 and 5, 2016 and by written submissions received on September 5, 2016

Appearances: Mr. Mick Hassell and Mr. David Carranza for Ms. Stella Cobby Mr. Eric Levin and Mr. David van Staalduinen for TD General Insurance Company

Issues:

The Applicant, Ms. Stella Cobby, was involved in a motor vehicle accident which occurred on August 3, 2012. The Applicant applied for and received statutory accident benefits from TD General Insurance Company (“TD General”) payable under 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:

Is the Applicant entitled to Income Replacement Benefits (“IRBs”) from March 29, 2013 to date and ongoing?
Is the Applicant entitled to $200.00 for the cost of a Disability Certificate provided by Kidron Valley Rehab, dated October 11, 2014?
Is the Applicant entitled to $6,019.50 for a Psycho-Vocational Assessment and Functional Abilities Evaluation provided by Rehabilitation Networks Limited, dated April 7, 2016?
Is the Applicant entitled to interest on overdue payments in accordance with the Schedule?
Is either party entitled to costs?

Result:

The Applicant is not entitled to IRBs from March 29, 2013 to date and ongoing.
The Applicant is not entitled to $200.00 for the cost of a Disability Certificate provided by Kidron Valley Rehab, dated October 11, 2014.
The Applicant is not entitled to $6,019.50 for a Psycho-Vocational Assessment and Functional Capacity Evaluation provided by Rehabilitation Networks Limited, dated April 7, 2016.
The Applicant is not entitled to interest on overdue payments at the rate prescribed by the Schedule.
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 Ghana in 1985 and came to Canada as a teenager. She attended high school in Ghana and completed her education in Canada. She became a Registered Practical Nurse in 2015.

In January 2011, she had a previous automobile accident. The Applicant advised that prior to the current accident, she had a normal social life, including attending church where she was in the choir, and led a very active social life with friends as well.

At the time of the accident, the Applicant was employed at a convenience store where she did a multitude of functions, including stocking shelves, opening boxes of candy, milk and water. These tasks required standing and stooping all day. Her job at the convenience store consisted of a 40-hour work week.

The Applicant is the mother of four children, who were born in 2010, 2012, 2014 and 2016 respectively.

The accident occurred when the Applicant’s car was stopped at a red light and her vehicle was sandwiched between two cars. The Applicant was taken to hospital by ambulance where her injuries were treated. No x-rays were taken at the hospital because she was pregnant. The Applicant described her injuries as back pain, shoulder pain, pain to her right side, headaches and a tingling feeling and sleep disturbance. She also indicated that she is depressed, suffers from mood swings and has withdrawn from activities at her church and social functions.

DECISION

ENTITLEMENT TO IRBs

The Applicant’s Position with respect to pre-104 week IRBs

The Applicant states that she has been unable to return to employment due to her physical and emotional disability.

The Applicant claims in her testimony that, due to her injuries, she immediately stopped working at the convenience store, where she had been earning $500.00 per week. She claims that the Insurer recognized this injury and her pre-104 week IRB entitlement, by paying her $350.00 per week until March 28, 2014.

The Applicant’s counsel states that Dr. Christian Akotoye submitted an Assessment Report diagnosing the Applicant’s injuries as being to the neck, upper/lower back, right shoulder and right knee. The Applicant attempted to return to work at the convenience store in December 2013 and worked there until March 28, 2014. The Applicant’s counsel argues that Section 11 of the Schedule does not affect the Applicant’s entitlement to IRBs if one attempts to return to work but is unable to continue working. The Applicant’s counsel points out that the Applicant could not handle the prolonged standing and shelf stocking of items such as milk that arrived in large boxes and was let go for poor performance on March 28, 2014. The Applicant states that she could do the job before the accident but not after the accident and is therefore entitled to pre-104 week IRBs for the period commencing March 29, 2013 to December 22, 2013 and from March 29, 2014 to August 3, 2014 (all at $350.00 per week).

The Applicant’s Position with respect to post-104 week IRBs

The Applicant claims she was physically and psychologically unable to work after the 104-week period because she was in pain and depressed. The Applicant points out that before the accident she was capable of working as a Registered Practical Nurse although she had failed her exams to become a Registered Nurse. In support of this position, the Applicant’s counsel introduced the report of psychiatrist, Dr. Jerry Cooper, dated July 25, 2015, who diagnosed the Applicant with “Chronic Pain Syndrome, moderate severity and there are features of a generalized anxiety disorder, moderately severe”.

The Applicant’s physiatrist, Dr. Igor Wilderman, produced a report, dated December 21, 2015, in which he indicated that the Applicant could not work at any job for which she is reasonably suited.

Dr. Saadia Akram-Pall diagnosed the Applicant with “Major Depressive Disorder, Moderate, Single Episode”. Her evidence suggested that the Applicant tried to go back to work and could not continue because of cognitive issues. She felt that the Applicant could not cope with activities of daily life.

The Applicant’s counsel also argues that Dr. Sherri MacKay, the Insurer’s psychologist, was so concerned about the Applicant’s distress that she contacted the Applicant’s family physician during the Insurer Examination and directed the Applicant’s taxi driver to take her directly to her family physician. Dr. MacKay also confirmed that if the Applicant had not seen her family physician, Dr. MacKay would have contacted the Children’s Aid Society to intervene because of the Applicant’s mental distress.

The Insurer’s Position with respect to pre-104 week IRBs

The Insurer’s counsel states that the onus rests on the Applicant to prove that she is entitled to the benefits claimed and submits that the Applicant has not proved her case for entitlement to any of the benefits beyond what the Insurer has already paid. The Insurer states that the Applicant has a number of pre-existing conditions, all predating the accident, including complaining of right leg pain, right leg numbness and back pain, all of which had been reported to her family physician, Dr. Akotoye. The Insurer claims that there is no medical evidence, expert or otherwise, to support her position that she suffers from a substantial inability to perform the essential tasks of her pre-accident employment.

In support of this position, the Insurer submitted the multi-disciplinary report entered as Exhibit 15. This report was prepared as a result of Dr. MacKay’s assessment of the Applicant on February 15, 2013 wherein Dr. MacKay stated that she was of the opinion that from a psychological perspective, the Applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

The Insurer’s physiatrist, Dr. Chris Boulias, assessed the Applicant on February 21, 2013. During that examination, the Applicant reported that she was independent and was able to manage her children, in addition to being able to perform her housekeeping chores, and reported no back pain to Dr. Boulias at that time. Dr. Boulias was of the opinion that the Applicant could return to her pre-accident work on a full-time basis and did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

Accordingly, her IRBs were stopped effective March 28, 2014.

Dr. MacKay did a second assessment of the Applicant on June 12, 2015 and, despite a single depressive episode, Dr. MacKay opined in June 2015 and in her evidence at the Hearing, that the Applicant would still not have met the test for IRBs for either the pre- or post-104 tests.

The Insurer’s Position with respect to post-104 week IRBs

The Insurer had the Applicant perform a Multi-Disciplinary Assessment and this report, which includes a Functional Capacity Evaluation, a Vocational Assessment and a Transferable Skills Analysis, were reviewed by both Dr. MacKay and Dr. Boulias in formulating their opinions regarding the Applicant’s entitlement to both pre- and post-104 IRBs. The Vocational Assessment identified certain jobs deemed suitable for the Applicant by the Insurer. No evidence was provided by the Applicant as to why she was unable to work in any of these positions. The Applicant was examined for a third time by Dr. MacKay on October 30, 2015 and a second time by Dr. Boulias on November 19, 2015. Both Dr. MacKay and Dr. Boulias, in the reports given at the time of these examinations and in their evidence given at the Hearing, opined there was no indication that the Applicant suffered from a sufficient psychological or physical impairment which would cause a complete inability to engage in any employment for which she was reasonably suited by education, training or experience.

The Insurer also claimed that Dr. Akram-Pall’s evidence did not at all address the Applicant’s entitlement to IRBs.

The Law Regarding IRBs

The Schedule test for IRBs up to the two-year mark following the accident is that of “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.” [Emphasis added]

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:

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 suggests that she continued a normal and productive life after the accident. She completed her Bachelor of Nursing program from Humber College in April 2013, she completed a Registered Practical Nurse course between November 2015 and June 2016, she gave birth to three children since the accident and is the sole care provider for all four of her children. Both in the report she provided to Dr. MacKay and in her evidence before the Hearing, her evidence suggested that the bulk of her day was consumed with childcare.

The Applicant, to her credit, returned to work in December 2013 in the same capacity that she worked prior to the accident, and continued working there until March 2014. Her Record of Employment indicated that the reason for the work stoppage in March 2014 was that the business closed. This was contradictory to her evidence where she stated that she was laid off due to her inability to perform the tasks related to performing the demands of work. We have been provided no evidence to override the provisions of the Record of Employment.

Although there is sympathy for the pain and mental disorder suffered by the Applicant, the only relevant consideration is the Applicant’s ability to meet the tests set out. Accordingly, I am not satisfied that the Applicant has either suffered a substantial inability to perform her pre-accident employment, nor has she suffered “a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.”

DISABILITY CERTIFICATE (OCF-3)

The Applicant’s Position

The Applicant claims the sum of $200.00 for a Disability Certificate, OCF-3, dated October 11, 2014. The Applicant submits that this certificate was submitted to support the Applicant’s impairment after the Insurer had discontinued IRBs. The Applicant claims that although it was submitted without the prior approval of the Insurer, the Disability Certificate was reasonable and analogizes that under Section 38(2)(c)(ii) of the Schedule, prior approval is not required for any amounts of $200.00 or less with respect to goods.

The Insurer’s Position

The Insurer points out that Section 25(1) of the Schedule states that “the Insurer shall pay the following expenses incurred by or on behalf of an insured person: (i) reasonable fees charged for preparing a Disability Certificate if required under Section 21, 36 or 37 of the Schedule, including any assessment or examination for that purpose.” The Insurer’s position is that it is not payable because it was never requested and not required. On December 18, 2014, the Insurer wrote the Applicant advising that it would not be payable as it was submitted without prior approval.

The Applicant acknowledged in her evidence that a copy of the December 18, 2014 notice was addressed to her, copied to her legal counsel and the facility provider. The Insurer also argues that the Applicant failed to provide any evidence as to why this OCF-3 was reasonable and necessary.

The Law Regarding OCF-3s

It is clear that the onus of proof in establishing entitlement rests with the Applicant. I am not satisfied that the Applicant has met the test set out in Section 25(1) of the Schedule with respect to the OCF-3 in dispute. If the legislature had intended to extend the $200.00 exemption to preparation of Disability Certificates, they would have done so. Unfortunately, the Applicant has not met the test set out in the Schedule and accordingly is not entitled to be compensated for this sum.

PSYCHO-VOCATIONAL ASSESSMENT

The Applicant’s Position

The Applicant provided evidence as to her current vocation as a Registered Practical Nurse. The Applicant’s counsel submits that under Section 16 of the Schedule, the Applicant is entitled to take measures to re-integrate her into the labour market and therefore is entitled to a vocational assessment in particular. In support of that, the Applicant submitted an OCF-18 for a Psycho-Vocational Assessment in the amount of $6,019.50, as outlined by Occupational Therapist, Ms. Elsa Poon.

The Insurer’s Position

The Insurer submits that on receipt of the OCF-18, the Insurer notified the Applicant and her legal counsel on April 12, 2016 that they would not agree to pay for the services listed in the OCF-18. They specifically outlined the reasons for their refusal and notified the Applicant of her right to dispute. The Insurer claims that the Applicant did not produce any evidence, either by the Applicant herself or by producing Ms. Elsa Poon, to justify entitlement to this Psycho-Vocational Assessment.

The Law regarding entitlement to Psycho-Vocational Assessment

The onus is clearly on the Applicant to substantiate her entitlement to any benefits in dispute. First, Section 25(5)(a) of the Schedule states that an Insurer shall not be obligated to pay more than a total of $2,000.00 for any one Cost of Examination, so that even if the Applicant were successful, the totality of her entitlement would be limited to $2,000.00.

Second, there was no evidence adduced by the Applicant, either by herself or by any of the other witnesses, to validate that the Psycho-Vocational Assessment in question was reasonable or necessary. Evidence, either by Ms. Elsa Poon or Dr. Akram-Pall, to substantiate entitlement to this, may have assisted the Applicant’s position.

Accordingly, I am denying entitlement to the Psycho-Vocational Assessment requested.

INTEREST

Since the Applicant is not entitled to any overdue payments, there is no entitlement to interest on any overdue payments as 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.

October 24, 2016

Barry S. Arbus, Q.C. Arbitrator

Date