Jaswinder Kaur Khaira v. RBC General Insurance Company, 2016 ONFSCDRS 291

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

Neutral Citation: 2016 ONFSCDRS 291

FSCO A14-007686

BETWEEN:

JASWINDER KAUR KHAIRA

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Marcel D. Mongeon

Heard:

In person at ADR Chambers on August 23 and 24, 2016

Appearances:

Mrs. Jaswinder Khaira did not participate Mr. Santino Lofranco and Mr. Joseph Corriero participated for Mrs. Jaswinder Khaira Ms. Anju Sharma participated for RBC General Insurance Company

Issues:

The Applicant, Mrs. Jaswinder Khaira, was injured in a motor vehicle accident on September 16, 2013 and sought accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, 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 a Special Award on her settlement?
Is either party entitled to its expenses of the Hearing?

Result:

The Applicant is not entitled to a Special Award.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Prior to the Hearing, this matter was settled for all issues except that of a Special Award. I conducted a Hearing limited to the consideration of a Special Award.

The factual record comprised an agreed statement of facts and 48 Exhibits that were entered with the consent of the parties. I present below, first, the agreed statement of facts and then a summary of other relevant information that I have summarized from the 48 Exhibits.

Agreed Statement of Facts

The following is the agreed statement of facts. I have added the footnotes to refer to appropriate Exhibits and make additional comments that I believe are relevant.

Mrs. Khaira was born in India on February 9, 1962.

In 2001, Mrs. Khaira was employed as a warehouse associate and labourer at TJX, formerly known as Winners.² She would work Monday to Friday, around 40 hours a week. Her essential tasks of employment include: Material Handling; Clean up; Packaging; Assisting machine operators; Packing; Assembling; Crating; Handling and transporting raw material, finished products and equipment; and Checking and weighing materials and products.

These duties have generally been characterized as moderate to heavy.

She maintained her employment with TJX up until the subject motor vehicle collision.

On September 16, 2013, Mrs. Khaira was involved in a rear end collision.

Mrs. Khaira made a claim for accident benefits to RBC.

Mrs. Khaira made a claim to RBC for Income Replacement Benefits and Medical and Rehabilitation Benefits.

At first instance, RBC approved the benefits submitted by Mrs. Khaira.

RBC assessed Mrs. Khaira’s entitlement to Income Replacement Benefits in March 2014. RBC sent Mrs. Khaira to Dr. Ratti, psychologist,³ and Dr. Karabatsos, orthopaedic surgeon.⁴ RBC relied on these reports as part of the basis for their termination of Mrs. Khaira’s Income Replacement Benefits.

The Applicant’s Income Replacement Benefits were terminated effective April 14, 2014.⁵

Dr. Karabatsos completed an Insurer Examination Addendum Report on June 13, 2014.⁶

Dr. Ratti was retained by RBC to determine Mrs. Khaira’s entitlement to a psychological assessment. He completed a report on February 18, 2015.⁷ Dr. Ratti recommended 12 sessions of psychotherapy.

On May 4, 2015, Dr. Pilowsky prepared a report.⁸ Dr. Pilowsky was retained by Mrs. Khaira to provide a psychological assessment and treatment.

On June 30, 2015, Mrs. Khaira was seen by Dr. Ogilvie-Harris, Orthopaedic Surgeon, who completed a report on behalf of Mrs. Khaira.⁹

On July 24, 2015, Dr. Inese Robertus, MD, completed a Chronic Pain Assessment on behalf of Mrs. Khaira.¹⁰ This report was delivered to counsel for RBC on August 20, 2015.

Dr. Ratti saw Mrs. Khaira again on September 10, 2015 for the purpose of completing an Insurer’s Psychological Assessment.

An Insurer Examination Physiatry Assessment was completed by Dr. John Heitzner, dated September 24, 2015, to determine the reasonableness and necessity of two treatment plans submitted by the Applicant in the amount of $2,200.00 and $13,954.56.¹¹

An Insurer’s Psychological Assessment was completed by Dr. Rakesh Ratti on September 24, 2015, to determine the reasonableness and necessity of two treatment plans submitted by the Applicant in the amount of $2,200.00 and $13,954.56.¹²

Dr. Heitzner completed an Addendum Report on November 4, 2015.¹³

Dr. Pilowsky completed a psychological re-assessment on October 16, 2015.¹⁴

Following the accident, Mrs. Khaira has visited her family doctor, Dr. Masud.¹⁵

Dr. Masud referred Mrs. Khaira to neurosurgeon, Dr. Jha, who then referred her to Dr. Eric Massicotte of the Toronto Western Hospital. Mrs. Khaira saw Dr. Massicotte/Dr. Simon Harris on May 14, 2015. She saw Dr. Massicotte again on October 29, 2015.¹⁶

On January 11, 2016, Mrs. Khaira underwent surgery to her neck – anterior cervical diskectomy (sic) at C5-6.¹⁷

Counsel for Mrs. Khaira informed RBC of the surgery on January 5, 2016¹⁸ and February 7, 2016.¹⁹

A vocational assessment was completed by Dr. John Mills on February 29, 2016 and March 12, 2016.²⁰

A Functional Abilities Evaluation was completed by Atila Balaban on May 24, 2016.²¹

Mrs. Khaira filed an Application for Mediation and Arbitration on the benefits the Insurer refused to pay, including Income Replacement Benefits and Medical Benefits.

The original Application for Arbitration was filed on September 19, 2014, at which time the Applicant was seeking entitlement to Income Replacement Benefits, Minor Injury Guideline Determination, Expenses, Interest and a Special Award.

On July 20, 2016, by Order of Arbitrator Diamond, the Applicant was permitted to add the following issues to the Application for Arbitration: $1,574.61 for Physiotherapy from Healthmax Physiotherapy Clinics; $2,448.93 for Psychological Assessment from Cambridge Medical; $1,316.21 for Assistive Devices from All Health; $13,954.56 for Chronic Pain Treatment from All Health and $2,200.00 for Chronic Pain Assessment from All Health.

On August 6, 2016, RBC agreed to reinstate Mrs. Khaira’s Income Replacement Benefits and settle the remaining issues in dispute, except for Special Award. RBC agreed to pay the Applicant a lump sum of $60,000.00. The Settlement Disclosure Notice allocates the settlement as follows: $30,000.00 for Income Replacement Benefits, $20,000.00 for Medical Benefits and $10,000.00 for legal costs and disbursements.

On August 17, 2016, Counsel for the Applicant sent correspondence to counsel for RBC outlining the particulars regarding a Special Award claim in relation to Income Replacement Benefits.²²

On August 18, 2016, counsel for the Applicant sent correspondence to counsel for the Insurer outlining particulars of the Special Award claim generally.²³

Additional Facts based on Exhibits

The Insurer’s log notes in this matter up to the date of the Application for Mediation are available as Exhibit 8. I note that these log notes do not provide any information after May 23, 2014. I also note that there was no viva voce testimony of any Insurer’s adjuster or representative.

I find the following relevant entries²⁴ in Exhibit 8:

2013/10/08 – 17:24:29: “employed and working – TGX [sic] Canada; injury prevents her from working; has not RTW [returned to work]; EHC [Extended health carrier] – Manulife”
2013/10/24 – 16:47:45: [referring to the OCF-2] “completed by Jeff Ball dated Oct 9, 2013; Part 6 is incomplete”
2013/10/24 – 16:49:21: “Left voicemail for Jeff Ball to call back asap to confirm Part 6 details on the OCF-2”
2013/10/25 – 11:38:26 “Jeff calling; confirmed last day worked … STD/LTD available through Manulife”
2013/10/29 – 17:44:51 – confirms correspondence to Applicant that income replacement benefit is payable. Also notes that Applicant has to apply for benefits through Manulife which are primary
2014/01/21 – 13:22:34 – confirms referral to “Ortho and Psych” insurer’s examinations. Referral questions include: “6. Does a disability presently exist as a result of any MVA related impairment that would cause the claimant to suffer a substantial inability to perform the essential tasks of his/her pre-accident employment?”
Through January and February 2014, the notes reflect a re-scheduling of the insurer’s examinations
2014/04/08 – 16:50:51 – summarizes the insurer’s examination reports. Dr. Karabatsos: “No. the claimant does not suffer a substantial inability to perform the essential tasks of her pro-accident [sic] employment. At this stage in time, it is now 5 months since the accident in question- I do not believe that this lady has any significant impairment that would preclude her from returning to her pre-accident employment”. Dr. Ratti: “Does not meet the test for IRB”
2014/05/12 – 16:28:44 – “spoke with Jaswinder; she advised that she cannot return to work – she tried twice but was sent home because she cannot lift more than 10lb; her physiotherapist confirms the same thing – unable to RTW; asked her to submit that FAE report from her physio –”
2014/05/13 – 15:56:22 – a document is received from Active Physical Rehab that would appear to be signed 2014/04/29 and proposed treatment of $625.75 which was approved
2014/05/21 – 15:47:16 – referral is made to a “doc 55”. However, no other detail of what this document is is provided.
2014/05/21 – 16:05:00 – records a letter sent to Applicant asking for paystubs; T4 for 2012/2013, Notice of Assessment for 2012/2013; and file through Manulife
2014/05/21 – 16:16:41 referring to doc 53 “There is no fracture or dislocation. There is degenerative disc disease at C4-5, C5-6 and C6-7 with mild anterior spurring and early disk space narrowing. IMPRESSION: Degenerative disc disease C4-C7”
2014/05/21 – 16:17:37 duplicates correspondence received from Dr. Badwall. “[the Applicant] is currently experiencing recurrent neck pain post-MVA. Radiographs dated 10-04-2014 reveal multi-level degenerative disc disease (DDD) at 04-5, 05-6 and 06-7. There was no prior history of cervical spine pain. … it is possible that O/S MRI would reveal disc bulge. Based on the clinical presentation of her neck pain and DDD acting as a barrier to recovery, Mrs. Khaira would benefit from further care for symptomatic relief with emphasis on an individualized active care program.”
2014/06/17 – 11:26.25 – Reviewed Ratti (Mar 24, 2014); X-rays and ultrasound (4/10/2014) which indicated degenerative disc disease throughout the cervical region; and May 7, 2014 report from Active Physical which indicates that this lady has degenerative disc disease. “OPINION/ I have reviewed the additional documentation provided to me. The additional documentation does not change my previously stated opinions [relating to the Applicant’s entitlement to income replacement benefits.]”

Exhibit 4 shows two separate reports, dated February 7, 2014 and May 9, 2014, prepared by Dr. Iqbal, DC. Both note a number of limitations on the Applicant’s functions. No clear conclusion is made in either report. Rather, the reports are a series of check boxes. There is no indication that the Applicant is unable to perform her employment duties. In the report, dated May 9, 2014, the estimated duration of limitations has the numerals 2, 6 and 8 with 6 circled and 8 crossed out.

The additional pages attached to the reports in Exhibit 4 suggest that it was sent to the Insurer on May 13, 2014 at 14:14 by fax transmission. The Insurer had this document in its possession for its consideration on or before May 13, 2014.

I note from Exhibit 31, the clinical notes and records of the family doctor, Dr. Masud, that a referral to a neuro/orthopaedic surgeon was initiated on July 9, 2014. Presumably, prior to this date, the Applicant’s family physician had not yet come to the opinion that the Applicant was suffering from a more serious condition requiring surgery.

I note from Exhibit 30 that the Applicant had surgery on January 11, 2016 by Dr. Eric Massicotte for what might be colloquially known as a disc fusion. A further report²⁵ indicated that, “After surgery, [the Applicant’s] right hand pain has improved (4/10). Similarly, her numbness has improved with it now mainly affecting the tip of her right thumb. She still thinks that her right arm is a bit weak.”

Applicable Law

Section 282(10) of the Insurance Act as it read at the date of loss, provides:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The fact that the Insurer has consented in the settlement to an amount for past Income Replacement Benefits and to reinstate those benefits, establishes that its initial decision to deny such benefits was incorrect.²⁶

“Unreasonable” behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.²⁷

In the words of the Arbitrator in Beltrame and Dominion of Canada General Insurance Company,²⁸ the duty to act in a reasonable and fair manner in responding to a claim for accident benefits places a responsibility upon an Insurer to (amongst other things):

Understand the legal "tests" or "criteria" that apply in the particular case so that the insurer can ask the right questions and identify the information it requires in order to properly assess the claim;
Approach the claim with an open mind, treating the insured person in a fair manner and not as a potential adversary;
Carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner;
Identify what additional information may exist that would assist in assessing the claim and notify the insured of any additional information the insurer reasonably requires to assess the claim;
Ensure that the person (or persons) responsible for assessing the claim for accident benefits make their own decision, free from undue influence by others who may not owe the same duty of care to the insured; and
Reassess the validity of the claim as new information is received.

The decision of unreasonable behaviour is to be taken at each point in time and not from the point of view of hindsight.²⁹ In addition, the standard is not one of perfection.³⁰

In terms of the weight to be given to Insurer Examinations, the case of Cowans, op. cit. at para. 26 counsels:

Simply "papering" a termination by obtaining a compliant report from an assessor is not necessarily a protection against a special award if an insurer closes its mind to other information potentially available to it that might have cast its decision or actions in doubt.

Comparing a Special Award to the notion of punitive damages, the arbitral decision of Persofsky and Liberty Mutual Insurance Company³¹ notes:

I would not suggest that punitive damages and special awards are directly comparable. The former is a common law remedy that is integrally connected to other common law remedies. In contrast, special awards are defined by legislation and are capped. However, the purpose of a special award, like punitive damages, is to punish the insurer for its misconduct and to deter it, and others, from acting similarly in the future.

If an award is to be made, Persofsky, op. cit., provides a detailed code of how to calculate the award.

In summary, in order to make a Special Award in this case, I must determine whether the Insurer acted reasonably at relevant points of time based on the information available to it at each of those points in time and whether or not the Insurer should have sought additional information.

Arguments in Support of Unreasonable Behaviour

The Applicant makes three arguments:

The Insurer should have conducted a more thorough investigation of the Applicant’s entitlements prior to terminating the Income Replacement Benefit in April 2014;
The Insurer should have reconsidered or reassessed its position on the receipt of each of the expert reports; and
The Insurer should have reconsidered or reassessed its position on the receipt of updated medical information about the Applicant.

The Insurer argues that it acted reasonably at all times.

Analysis

The agreed facts show me that an amount of $20,000.00 was given to settle the claim for Medical Benefits. I note that the settlement amount is roughly similar to the specific amounts in dispute in the amended Pre-Hearing letter. There was also a settlement amount of $30,000.00 for past Income Replacement Benefits.

Although Persofsky suggests that I can consider Medical Benefits and Income Replacement Benefits separately and decide if the Insurer acted unreasonably in adjusting one or the other, I will begin first to consider the matters together for unreasonable behaviour.

The first time period that I use to determine the Insurer’s behaviour is in early April 2014 when the Income Replacement Benefit was first terminated.

At this time, the Insurer had an incomplete OCF-2 (Part 6 listing required tasks of the job was not complete). However, the Insurer had acted quickly to call the employer and, although no information was recorded in the log notes about the information received, the Insurer received sufficient information to initially allow the claim for benefits shortly after the accident.

Is the fact that the Insurer never recorded the actual required tasks in part 6 something that should be used to suggest that the Insurer acted unreasonably? I do not think so. I note the law suggests that the test is not perfection. To ensure that the Insurer had a complete list of tasks in the OCF-2 would be requiring close to perfection. I believe that the Insurer obtained appropriate information in the telephone call with the employer in determining the Applicant’s entitlement to benefits. Clearly, since benefits were allowed, the Insurer had formed a reasonable opinion that the Applicant at that point was not able to fulfill the functions of her employment even without the part 6 information.

The Insurer then requested two Insurer Examinations: one from an orthopaedic surgeon, Dr. Karabatsos,³² and the other from a Psychologist, Dr. Ratti.³³

Dr. Karabatsos’ report makes it clear that he was aware that the pre-accident employment was in a warehouse which was classified as “moderate-type activities”. The conclusion is clear and unequivocal to the question about employment: “I do not believe that this lady has any significant impairment that would preclude her from returning to her pre-accident employment.”

Dr. Ratti’s report is also clear: “The claimant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment”.

It was suggested in argument that the Insurer Examinations were deficient in not also requiring a Functional Abilities Evaluation. I do not find that there was any information in either of the two reports that was obtained to suggest any need for such a report. An Insurer is clearly not obligated to perform all possible assessments but rather those which will give it a reasonable appreciation for the medical situation of the Applicant; if nothing in those reports points to a limitation in functions, why would a functional abilities assessment be reasonable?

I find that the Insurer acted reasonably on the information available in early April 2014 to deny the Income Replacement Benefit. There were two expert assessments both suggesting without equivocation that the Applicant was able to return to her work in a warehouse. A common sense understanding of warehouse work would suggest moderate lifting being required and, therefore, not having the part 6 of the OCF-2 completed would not have added anything at this point. It also would not have been reasonable for the Insurer to have required a Functional Abilities Evaluation because no information available to it suggested any problems.

We now move to May 2014 at the point where the Insurer has received additional information from the Applicant that she is off of work. In addition, information from the Applicant’s physiotherapy clinic is received as well as X-rays and an ultrasound report, dated April 10, 2014, showing “degenerative disc disease”.

The Insurer likely reviews the new information.³⁴ As noted above, the information is only a form with a lot of boxes checked off. There is no clear indication that the person completing the form suggested that the Applicant was not able to work. The Insurer then sends this information out to the Orthopaedic Surgeon that it had previously used and obtains an addendum report.³⁵ The addendum report confirms the original report that there is no impediment to work.

When I review the new information that the Insurer had as at May 17, 2014, I cannot find that there was anything that would have suggested that the Insurer reconsider its position on the Income Replacement Benefit. There was new information presented from early April 2014: this was that the Applicant might be suffering from degenerative disc disease. This was obvious from the information obtained from the physiotherapy clinic and the X-rays. However, there was nothing in the file to suggest that the degenerative disc disease was a direct result of the motor vehicle accident.

An Income Replacement Benefit is payable for an impairment sustained as a result of an accident. Although the physiotherapy clinic has shown limitations in the Applicant’s functions in terms of their own report, there is nothing which shows that those limited functions are as a result of the accident. All the physiotherapy clinic has recommended – which has been rejected by the Insurer’s orthopaedic expert – is to do an MRI. There is no clear opinion provided to the Insurer from the Applicant’s own physiotherapist that they are of the opinion that the limitations are the direct result of the accident.

In mid-2014, there is nothing to suggest that the Insurer acted unreasonably. The Insurer had a reasonable working theory: the Applicant suffered from degenerative disc disease that was unrelated to the accident. Insurers are entitled to adjust a claim on the basis that they do not believe what is being sought is covered; as long as there is a reasonable basis for such alternate theories, it is difficult to find such an approach to be unreasonable. It would only become unreasonable at a point where there is no longer medical evidence to support that alternate theory.

In terms of orthopaedic treatment, it was only in July 2014 that the Applicant’s own family physician made a referral to an orthopaedic surgeon.³⁶ It is difficult to understand how the Insurer could be expected to be concerned about the Applicant’s physical conditions in May when her own physician had to take another two months to come to the conclusion that the condition should be further investigated. Although this is a form of ‘hindsight’, it also helps frame the physical complaints of the Applicant which ultimately keep her from her employment.

Almost a year later, in April 2015, the Applicant was again examined by the Insurer’s experts as a result of applications for various medical benefits. Dr. Karabatsos in a report, dated May 5, 2015, (at page 8) states:³⁷ “the reported numbness developed in February of 2014. In my professional opinion, this is the result of degenerative disc disease and not the result of the accident in question.” As a result, the proposed medical benefits are suggested to be not reasonable nor necessary. This now more completely supports the theory that the underlying cause of the Applicant’s complaints is degenerative disc disease.

Dr. Ratti’s report of February 18, 2015 also noted relating to employment at page 5:³⁸

[The Applicant] reported that she stopped working after her accident due to physical pain. She indicated that she attempted to return to work on two occasions, with the last being on February 18, 2014, but in both instances could not perform necessary duties due to her pain. She added that her family physician advised her to not return until she was more fully recovered, consequently she was not working at the time of this assessment…. There is no evidence that psychological factors result in any functional limitations, other than driving being somewhat limited.

In May 2015, there is nothing in either of these reports that would suggest that the Insurer was acting unreasonably in continuing to deny the Applicant’s Income Replacement Benefits and specific Medical Benefits. There was evidence or an opinion that might suggest that any employment limitations were not as a result of the accident. The theory that the cause of the Applicant’s pain is degenerative disc disease continues to find reasonable medical support. Although there are also some minor discrepancies in the dates of last employment (Ratti reported February whereas we have information that the Applicant ceased work in April or May), the question is: did the Insurer act in a reasonable fashion at this point? I believe the answer is yes.

In early 2015, the Applicant is also now starting to see experts arranged by her own representative. The chosen orthopaedic surgeon, Dr. Ogilvie-Harris, writes a report of June 30, 2015.³⁹ In this report at page 7, an opinion is given as to a physical problem of the Applicant’s that ultimately results in surgery:

CT scan of the head and cervical spine was carried out. There are essentially no significant abnormalities. An MRI of the cervical spine was carried out. There was a right disc herniation at C4-5. At C5-6 there were anterior and posterior osteophytes. There were similar findings at C6-7. This would indicate age-related degenerative changes. When there is disease at three levels it is unlikely due to trauma. (My emphasis)

The chosen psychologist, Dr. Pilowsky, recommended⁴⁰ that the Applicant needed a pain management program. In part, the treatments recommended were approved by the Insurer.

It is not clear to me what information was exactly available to the Insurer during early and mi-2015. Had the Ogilvie-Harris report been submitted during this time period, it would have suggested that, other than the accident, degenerative disc disease was also a plausible explanation for the pain suffered by the Applicant. In other words, the Insurer’s alternate theory on which it can deny benefits is supported by the Insurer’s own expert.

From the agreed statement of facts, we know that a chronic pain assessment of Dr. Robertus was delivered to the Insurer’s counsel in August 2015. Despite the Ogilvie-Harris opinion reported above, Robertus concludes (at page 9): “based on the medical documentation reviewed [which included the Ogilvie-Harris report] and examination, it is reasonable to conclude that the motor vehicle collision caused [the Applicant’s] constellation of symptoms.” There are no specific conclusions as to employment although there is a generalized opinion that the Applicant’s impairment “is also serious as it interferes with her daily activities”.

In response to the Applicant’s assessments, the Insurer conducts additional assessments.⁴¹ The physiatry assessment of Dr. Heitzner confirms the diagnosis of degenerative disc disease. The assessment also specifically suggests that the Chronic Pain Program recommended by Dr. Robertus is not reasonable and necessary.

In late 2015, has the Insurer acted unreasonably by not reinstating Income Replacement Benefits or approving medical treatment or otherwise re-examining the issue? I do not believe so. The expert reports obtained are not just perfunctory denials; they are well-reasoned reviews of all of the available medical information. They come to a conclusion that is reasonable on the findings. The Insurer has acted reasonably in following the recommendations. There is nothing that suggests that other reports should have been ordered.

In late 2015, the experts were not specifically asked to provide opinions on the Income Replacement Benefit; rather, the questions dealt with specific proposed treatment plans. In spite of not asking about the Income Replacement Benefits directly, there is no evidence that any new information specific to the Income Replacement Benefit has been offered by the Applicant. Ultimately, the Applicant has some obligation if she believes that a re-examination of Income Replacement Benefits is warranted to show new evidence on which the Insurer should consider payment of those benefits.

More specifically in this case, a Chronic Pain Program was sought. Does this somehow suggest that the Applicant is now seeking a reconsideration of the Income Replacement Benefits? I do not think this is a reasonable conclusion. Many people with chronic pain continue to work; the purpose of the program is, in fact, to ensure that people can live as close to a normal life as possible with their pain.

It was submitted by the Applicant that once a chronic pain proposal is submitted, that should have triggered a reconsideration of the Income Replacement Benefit. I believe it would be holding the Insurer to too high a standard of review to expect this. In order for the Insurer to reconsider the Income Replacement Benefit, it needs to have some fresh evidence as to how the accident resulted in the limitations in employment.

I next turn to September 2015. At the 104 week mark, the test for Income Replacement Benefits shifts to a more onerous test. Did the Insurer have to do anything at the 104 week mark to specifically consider her entitlement? I do not think that that would be reasonable. If an Insurer has already considered that an Applicant is not entitled to Income Replacement Benefits acting reasonably, there is nothing that they need to do to reconsider the issue under a more onerous test.

As I have previously noted, leading up to September 2015, the Insurer has had a reasonable position supported by medical advice that the problems experienced by the Applicant may be related to a degenerative condition rather than an accident-related injury. No new information has been provided by anyone that yields a different conclusion. Again, at September 2015, the Insurer acted reasonably.

Finally, I deal with early 2016. The most significant medical treatment that the Applicant receives is the disc fusion surgery. Does the fact that she has such surgery somehow put the Insurer on notice that it ought to readjust her claim? I do not believe so. Everything that the Exhibits show is that the surgery was a reasonable treatment of the degenerative disc disease. Since degenerative disc disease still supports a theory to deny coverage, it is difficult to accept that the fact that the Applicant had surgery can be accepted to suggest that the Insurer acted unreasonably.

Other than the surgery, during early 2016, there is a paucity of assessments or reports. It is only when the parties start preparing for the Hearing, which is scheduled in August 2016, that the experts are asked to update their opinions and reports. In the lead-up to a Hearing it is difficult for me suggest that the Insurer acted unreasonably in trying to put its best foot forward for a Hearing. It still had an alternate theory of degenerative disc disease.

I acknowledge that an Insurer continues to have a good faith obligation to readjust a claim as necessary at any time in the life-span of the claim but common sense also suggests that in the time period immediately prior to a Hearing, the Insurer will be as reasonable as the circumstances permit in advancing its own position while considering settlement. The fact that this matter settled without a Hearing suggests that the Insurer had an appropriate attitude.

As can be appreciated from my individual decisions above, at no time did I consider the Insurer to have acted unreasonably in adjusting this claim. Accordingly, no Special Award is payable for either the Medical or Income Replacement Benefits.

I note that I have not been provided any evidence that the Applicant’s inability to work (either before or after the 104-week mark) is directly as a result of the motor vehicle accident. I have medical reports that use a type of res ipsa loquitur (the thing speaks for itself) logic that suggests that since the Applicant did not have certain medical problems before the accident that she had after the accident, it must be the accident that caused the problems. I note the Robertus report⁴² as the clearest example of such logic. Proof that a condition is a result of the motor vehicle accident must always be presented on a balance of probabilities. It was not in this case.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 31, 2016

Marcel D. Mongeon Arbitrator

Date