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

Neutral Citation: 2016 ONFSCDRS 327

FSCO A14-003779

BETWEEN:

HELEN TESFAGIORGIS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Thérèse Reilly

Heard:

In person at ADR Chambers on February 11 and 12, 2016 and April 12, 2016 and by written submissions due September 9, 2016

Appearances:

Ms. Helen Tesfagiorgis participated Mr. McDonald Jasper represented Ms. Tesfagiorgis Ms. Yasmin Sulaiman participated for State Farm Mutual Automobile Insurance Company Ms. Meredith Harper represented State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Helen Tesfagiorgis, was injured in a motor vehicle accident on July 10, 2012 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm” or “the Insurer”), 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:

1. Is Ms. Tesfagiorgis entitled to receive a weekly Income Replacement Benefit (“IRB”) in the amount of $400.00, as set out in the Application for Arbitration, from October 11, 2013 to date, and ongoing? The weekly quantum is also in issue.

2. Is Ms. Tesfagiorgis entitled to receive Medical Benefits for chiropractic treatment provided by Heartland Wellness Clinic (“Heartland”) in the amount of $892.04, submitted September 11, 2013, and for $1,541.60, dated September 19, 2012?

3. Is State Farm liable to pay a Special Award because it unreasonably withheld or delayed payments to Ms. Tesfagiorgis?

4. Is Ms. Tesfagiorgis entitled to interest for the overdue payment of benefits?

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

Result:

1. Ms. Tesfagiorgis is not entitled to receive a weekly IRB from October 11, 2013 to date, and ongoing. Quantum for the IRB is not proven.

2. Ms. Tesfagiorgis is not entitled to receive Medical Benefits for chiropractic treatment provided by Heartland in the amounts of $892.04 and $1,541.60.

3. State Farm is not liable to pay a Special Award.

4. Ms. Tesfagiorgis is not entitled to interest for the overdue payment of benefits.

5. 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:

MOTIONS

At the outset of the Hearing, State Farm moved for an adjournment on the basis that the WSIB report and records were not served within 30 days of the Hearing date. On hearing the parties, I ruled against an adjournment. State Farm was provided 24 hours to review the WSIB documents.

State Farm then brought a Motion to allow a document it had not served in accordance with the Dispute Resolution Practice Code (“the Code”) prior to the Hearing. I ruled that the OCF-9, dated September 28, 2015, would not be excluded and as the Applicant was aware of this document at least 5 months before the Hearing, I allowed the document to be admitted into evidence.

At the Hearing, the Applicant’s representative also stated he was advancing a claim for a Special Award, particulars of which would follow. The Hearing was completed over two days in February 2016 and a third day on April 12, 2016. The Applicant’s representative had sought clarification on how to proceed to advance this claim by letter, dated February 23, 2016. In my reply to all parties, dated March 2, 2016, the parties were advised that the claim for a Special Award could be addressed in the closing submissions. During the Applicant’s oral closing submissions on April 12, 2016, the Insurer objected to the Applicant being able to advance a claim for a Special Award. On hearing submissions from both parties, and in light of the notice of the claim provided March 2, 2016, I allowed the Applicant to advance the claim for a Special Award, subject to procedural fairness and the requirement that the Applicant provide particulars to the Insurer. I note that in the time intervening between February 12, 2016 and the continuation date of April 12, 2016, the Applicant did not provide, and the Insurer did not request, particulars of the Special Award. The Insurer confirmed by letter, dated March 9, 2016, and on April 12, 2016, that it was electing to present written closing submissions.

A letter, dated April 15, 2016, was sent to all parties setting out the schedule for written submissions on the claim for a Special Award, as well as the schedule for closing written submissions by the Insurer and any further written submissions by the Applicant. The Insurer submitted a request for adjournment at the end of the Hearing on April 12, 2016, to allow the Insurer to address the Special Award claim, which was being addressed in written submissions. I declined the request on the basis that the claim for a Special Award could be addressed in written submissions. Submissions on the Special Award from the Applicant are dated May 11, 2016, June 28, 2016 and September 11, 2016, and from the Insurer submissions were received June 20, 2016 and August 26, 2016.

REASONS FOR DECISION

The Applicant, her spouse, and the family doctor, Dr. Hahn, were called as witnesses. The Insurer called no witnesses.

The Motor Vehicle Accident

The Applicant was involved in a rear-end motor vehicle accident on July 10, 2012. She was wearing her seatbelt. The Applicant testified that she had slowed down her car because there was another accident to the left. She was then rear-ended and she put her foot on the brake to avoid hitting the car in front. The Applicant’s airbags did not deploy in the accident. The 2010 Toyota Corolla CE required about $5,000.00 in repairs. The Applicant did not go to the hospital from the scene of the accident. She reported the accident to State Farm and stated that she felt “a little pain in [her] back.”² The Applicant stated that “she felt weird on day of accident”. She felt pain 2 to 3 days later, and she felt pain the next morning in her back.

She got treatment two weeks to a month after the motor vehicle accident. She thought initially the pain would go away. She went to Heartland where she received physiotherapy treatment.

Minor Injury Guideline (“MIG”)

Initially, State Farm treated the Applicant’s injuries under the MIG. The Applicant was seen by Dr. Ernest White, an Orthopaedic Surgeon, on November 6, 2012. He examined the Applicant in-person, completed a clinical examination, and found that the Applicant had no neurological issues. He diagnosed the Applicant with non-complicated soft tissue strain injuries of her cervical, thoracic and lumbar spine as a result of the accident, and stated that from “an orthopaedic perspective, there is no compelling documented or clear-cut positive objective clinical evidence that Ms. Tesfagiorgis sustained any serious or structural injuries in the subject motor vehicle accident other than soft tissue strain injuries as addressed above and in answer to questions #1 and 2.”

In Dr. White’s report of November 19, 2012,³ he found there was no compelling evidence “from an orthopaedic perspective that would prevent her from maximum recovery under MIG. Her injuries fall under the MIG”.

This decision however was re-evaluated and subsequently the Insurer took the Applicant out of the MIG based on a further orthopaedic assessment by Dr. White, dated August 15, 2013, in which he stated that based on the findings of an MRI not available to him earlier, her injuries would fall outside of MIG, and the Treatment Plan, dated August 29, 2012, would thus be considered reasonable and necessary. He did recommend further investigation by a neurologist. By OCF-9, dated August 26, 2013, based on the Addendum Report, dated August 15, 2013, the Insurer advised the Applicant that the opinions and conclusions of Dr. White had changed. As such, her Treatment Plan, dated August 29, 2012, was now payable as the injuries did not fall within MIG.

Claim for IRBs

Ms. Tesfagiorgis claims she is entitled to receive a weekly IRB in the amount of $400.00 as set out in the Application for Arbitration, from October 11, 2013 to date and ongoing. The weekly quantum is also in issue.

IRB

Section 5(1) of the Schedule sets out the eligibility criteria for a person seeking IRBs:

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:

6. 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...

If the criteria in section 5 are met, income replacement benefits are to be provided for the period outlined in section 6. It reads:

6. (1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.

(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 Applicant is seeking IRBs that are both pre- and post- 104 week under the Schedule.

In the months prior to the accident, the Applicant’s main occupation was as a lab technician on a part-time basis for a therapeutic research company. She started work at the research company on November 14, 2011.⁴

Despite her injuries from the motor vehicle accident, the Applicant continued working for at least 14 months after the accident. She advanced a claim for the IRB on January 22, 2014, by way of an OCF-2 completed by the research company, dated September 12, 2013.⁵ She continued her work at the research company after the accident. Five months after the accident, she obtained work at a restaurant as a waitress. She worked at the restaurant from November 28, 2012 to May 26, 2013.⁶

The Applicant applied for an IRB, with the quantum to be determined.⁷ Her last day of work was October 11, 2013.

Claim for Medical Benefits

The Application for Arbitration refers to an OCF-18, submitted September 19, 2012, for $1,541.60.⁸ The OCF-18 for $1,541.60 was not approved by the Insurer. In its denial, dated September 25, 2013, State Farm stated the reasons for its denial was “Based on the frequency of care does not diminish over time”.⁹ State Farm required an assessment pursuant to section 44 of the Schedule to determine whether the OCF-18 was reasonable and necessary.

In an OCF-9, dated May 7, 2014, based on the s. 44 Orthopaedic Assessment of April 8, 2014 and report of Dr. White, dated April 23, 2014, the Insurer stated both the September 11, 2013 OCF-18 (for $892.04) and the OCF-18 (for $1,541.60) were denied on basis that they were not reasonable and necessary.

The Applicant’s Oral Testimony

The Applicant gave evidence on February 11, 2016 and February 12, 2016. She testified she stopped working completely on October 10, 2013.¹⁰ She stopped working because the pain was unbearable. She was doing light duties and she couldn’t do her tasks anymore at work. She had pain in her neck, lower back, was getting migraines, muscle spasms, and was suffering from incontinence. Some of these symptoms caused her embarrassment. She gave evidence that she had a “clean bill of health” before the accident, and before the accident, she had held two jobs, sometimes three.¹¹

After the accident, she went to Trillium hospital and was advised to follow up with her family doctor, Dr. Hahn, who sent her for a few tests and an MRI. She was prescribed pain-killers, and as a result of the medication, she noted she started having episodes where she would fall asleep at work. She was reprimanded by the research company in December 2012.¹² She testified that after the accident, she was off work about 6 times on sick leave. The research company’s letter of October 16, 2013 stated that in the time she worked between July 10, 2012 and August 9, 2013, she worked a total of 92 days and was off work for 12 days.

Her role at the research company was that of a lab technician which is not a physically active position. Her job duties at the research company included injecting catheters, taking blood samples, processing urine and blood samples, and doing ECGs. She testified that at one point, she started losing her balance. It was suggested by her physiotherapist that she start using a cane.¹³ She could not recall the date she was told to start using a cane. Since the accident, she has stopped cooking, does not do the grocery shopping, and does not do any housekeeping. She is fearful of blackouts and due to incontinence “pees herself”. As a server at the restaurant, she found her job tasks becoming more difficult. She found it hard to carry plates of food and to walk back and forth. Dr. Hahn then gave her a letter to stay at home.¹⁴

On cross-examination, she testified she moved her residence on several occasions after the accident. In one instance, she lived with her mother in Mississauga so she could be close to treatment. She went on several vacations after the accident, including one week to Jamaica, a further week to Cuba and intermittent weekend getaways to Niagara, Ontario. She could not recall the dates of the vacations. She did not bring her cane on vacation as her balance was better.¹⁵ On the weekend trips, her spouse, Richard Young, testified that they would visit Niagara-on-the-Lake where “they did nothing”¹⁶ and she did not use her cane.

She went to the Heartland for physiotherapy treatment. She started feeling pain within two months after the accident.¹⁷ She did not go see Dr. Hahn until September 17, 2012 and again on November 27, 2012 and January 7, 2013. She had some pain complaints. By February 11, 2013, it was noted by her family doctor that her complaints of pain increased in the neck and low back. She could not recall when she first started the complaints of numbness in her hands or incontinence, nor her headaches with blurred vision.¹⁸ She could not quantify how many times she fell asleep at work. She testified that she drove from Mississauga to Scarborough daily after the accident for her work at the research company until October 2013.

While at work at the restaurant, she did not use a cane.¹⁹ Her work was part-time at the restaurant and it would range from zero hours to 25 hours per week. Between November 28, 2012 and May 26, 2013, she worked a total of 609 hours.²⁰ She also worked at another restaurant as a server after the accident, but could not recall the dates. She agreed her family doctor encouraged her to keep up her daily living activities, but she could not do so. She quit the restaurant because it got to be too much. She also worked after the accident fundraising for a hospital for a brief time. She does not recall the specific dates worked, but it was after the accident and she did not use a cane.

She no longer does housekeeping or grocery shopping.²¹ She currently has pain and suffers from anxiety. She testified that her former lawyer had said that in light of her injuries, she should be off work. She told Dr. Hahn same.²²

She could not recall if she bartended after the accident. The Insurer pointed her to notes from Heartland in which she reported that she can no longer bartend.²³ The family doctor also noted same in his notes. State Farm stated in its closing submissions that the Applicant never disclosed to its assessors or State Farm that she worked as a bartender.

The Applicant stated that she has gone to the hospital for urinary tract issues. She admitted the physiotherapy treatment did not make her feel better. She is seeing a psychologist. The Insurer noted that no psychological treatment was ever submitted to State Farm by the Applicant.²⁴

She agreed her training and education includes training at the Toronto Film School, at Everest College as a medical laboratory technician, and training at the labs as well as a six-month bartending program.

She was questioned on cross-examination as to when certain of her ailments started. The Insurer maintains the Applicant did not complain of the urinary tract issues, headaches, numbness, or fainting until 14 to 16 months after the accident. The Insurer raised the issue of causation as the Applicant worked for 14 months after the accident.²⁵

As to her previous medical condition, she agreed that Dr. Hahn did encourage her to stay physically active and complete her activities of daily living. He told her to keep active, and to do the stretches suggested by the physiotherapist. She was not able to do daily activities. See for example, Dr. Hahn’s clinical notes of January 23, 2015, where he encouraged physical activity and walking even though it may produce more pain.²⁶ She did not recall if Dr. Hahn encouraged her to go back to work after the accident. But in his clinical notes of January 7, 2013, he writes “I think she should go back to work as soon as possible”, and in his clinical notes, dated November 6, 2012, he writes she should be encouraged to go back to work.²⁷

The Insurer asked the Applicant a number of questions about previous slips and falls. She acknowledged she suffered a fall in March 10, 2006 while working at Swiss Chalet. She was serving customers and slipped. She injured her back and made a WSIB claim. She had a further fall in 2010 at her workplace while working at another laboratory. She fell while she was walking on black ice. She stated she fully recovered.

Richard Young’s Testimony

Richard Young is the spouse of the Applicant. He testified that she does not do anything now. He does all the cleaning, cooking, driving and laundry.

He testified the accident changed the Applicant’s life tremendously and has disabled her from functioning normally for someone of her age. He testified that the Applicant suffered and continues to suffer from chronic pain as a result of the accident.

He noted she complains of problems with activities of daily life, including cooking and meal preparation, cleaning, laundry and vacuuming. He helps her with these. They went on vacation but did very little, including on the trips to Niagara-on-the-Lake. They met in February 2013. She worked but he could recall very little about her work.

Medical Evidence

Testimony of the Family Doctor, Dr. Hahn

The Applicant saw Dr. Hahn about the injuries from the accident for the first time on September 17, 2012. She saw him again on November 6, 2012 and November 27, 2012.

He has been her family doctor since 1997. He testified that before the accident, she was healthy. She had an episode of back strain which resolved itself. She had a knee injury which was work-related. She had clinical depression due to a relationship problem and that was resolved.²⁸

After the accident, he testified she became more of a person who has been disabled from doing what is considered normal for a person of her age and in terms of her activities of daily living.

She had depression symptoms, trouble focusing and concentrating. She had chronic pain in her neck. She got headaches regularly. She had pain down her arm and back. She had balance issues and blackout spells. She had incontinence problems. Overall, he believes the accident was a triggering factor.²⁹

Medications prescribed included Oxycocet and Tylenol #3, which are narcotics, and Effexor, which is an antidepressant. She was taking medications for constipation, sleeping pills, and Hytrin for her bladder.

He was asked if blacking out and incontinence could be due to the medications she was prescribed. He did not know, but he felt in his opinion these symptoms would inhibit her ability to work.³⁰ He made several referrals for her, including to Dr. Reddy. It was brought to Dr. Hahn’s attention that Dr. Reddy made comments in his report to the effect that “I’m not really convinced that her neurological deficits are real. Some of this is voluntary I believe”. He was asked if he thought the Applicant was “faking it”. He could not answer if she was. He stated the Applicant was referred to a urologist, a neurologist and psychiatrist. He concluded she is unable to do what she used to do. She has a diagnosis of depression. After the accident, he agreed that she had mainly soft tissue injuries for the most part.³¹

He agreed that she cannot return to the work that she was doing. Further, her blackouts prevent her from carrying on her work as a lab technician. Her symptoms have become expansive and turned into fibromyalgia, which is a chronic pain syndrome. She had complained of numbness in her hands, paresthesia and incontinence. He did not tell her to use a cane. He encouraged her to stay physical and active.³²

Dr. Hahn’s Clinical Notes and Records

His clinical notes and records indicate the following:

• September 17, 2012: the Applicant advised him she was in an accident. Her injuries were not addressed at the time. She went for physio treatment. For medical reasons, he wrote a letter that she should not be doing any heavy lifting or repetitive bending or twisting of neck and back. The doctor states she should only do physically very light non-repetitive work. He wrote a note to the employer placing the Applicant on modified duties.³³

• November 6, 2012: she has neck strain. He notes that her pain is worse with chiropractic treatment. She should be encouraged to work (my emphasis). She does not need an MRI. Continue physio. Continue her modified work for one month.

• November 27, 2012: she is on modified work and to remain until he reassesses her in January 2013. The Applicant stated that her lawyer thought she should be off work. She had pain in the neck and low back. He anticipates she will recover but may be taking a bit longer than usual (my emphasis).

• January 7, 2013: She is on modified duties but is actually doing more at work than initially realized—for example catheterizations, lifting because she does not want to lose her skills.³⁴ Her range of motion in her neck is almost full. She still has some pain in her neck. She has depression. And he noted she should get back to her regular work as soon as possible (my emphasis) and get rehab consultant involved. She should continue on modified work until he reassesses in two to three weeks. She looks depressed.

• February 11, 2013: she complained of increased neck pain and low back pain, especially when she walks.

• October 11, 2013:³⁵ his notes reflect a lot of neck and back pain and an incontinence issue. On examination, her range of motion in the neck is reduced by 70%. Her pain is chronic. Sends her for an MRI due to her worsening pain. Discontinues Cipralex. Prescribes Celebrex. Tridural. Lorazepam. Lots of neck and upper back pain and incontinence.

• November 18, 2013: In addition to other symptoms, she is now complaining of intermittent headaches and blurred vision. She had one episode of urinary incontinence. She often feels off-balance when she walks. Headaches last a few hours. Tridural helps with pain. No further incontinence. Attending physio. She looks well. She will continue off work and see him monthly. Sent her for a referral to Dr. Wells to assess spinal cord malformation, headaches, blurred vision, neck pain and feel off balance. Finger to nose coordination fine and tandem walk normal. Neurologically he cannot identify any local findings. She was sent for MRI lumbar spine. She has been going to physio but has had little improvement. It is hard to predict how long she will require. For medical reasons she should be off work for 3 months. She may return if and when she feels better (my emphasis).

• January 16, 2014:³⁶ She will continue for medical reasons to continue off work for another 3 months, again this is tentative. Still has neck pain and headache. Had 2 more episodes of urinary incontinence. Has paresthesia hands and legs. He noted her gait was normal.

• January 16, 2014 Medical Health Form:³⁷ Moderate limitation of functional capacity. She is capable of clerical administrative secretary activity. She could do sedentary administrative work.

• April 16, 2014:³⁸ Complains of a lot of pain and stiffness in neck and myalgia. She is attending physio regularly. She is depressed. Follow up on back and neck injury. She has fibromyalgia. She has decreased range of motion. Further note: She has been off work for medical reasons from October 3, 2013 until present. For medical reasons she will be off work indefinitely. He prescribed Tylenol with Codeine, discontinued Tridural.

• August 18, 2014: referral to Dr. Borth for incontinence.

• September 4, 2014: referral to Dr. Cathy Giles. She finds no neurological abnormality.

• Appointment on September 14, 2014 following referral to Dr. Reddy.

• June 3, 2015: Dr. Hahn states he spent a lot of time listening to her concerns, the progressive pain. No improvement in her depression. Same with pain. He acknowledges that her condition is a difficult undefined problem. It is important that she try to maintain activities of daily living and even more. He explained again that we may never come to a clear answer on cause of her symptoms. She is still not in counselling and should be. (my emphasis)

Insurer’s Assessment of the IRB Claim

• By OCF-9, dated January 30, 2014, the Insurer requests information on IRBs. Employer Confirmation is dated September 12, 2013. The Insurer advises that to calculate IRBs, it needs dates for the claim and the Applicant’s income information from 2011 to 2013, T4s and tax returns.

• Insurer sends an OCF-9, dated March 31, 2014, to the Applicant, confirming its determination that she suffered a substantial inability to perform the essential tasks of her employment. It states we have reviewed the section 44 report, dated March 20, 2014. Her IRBs will continue to be paid on a bi-weekly basis as long as she qualifies under section 6 of the Schedule. The requests for income verification as outlined in the January 30, 2014 OCF-9 are repeated.

• The Insurer arranged several Insurer Examinations, which included an assessment by Dr. Keith Meloff. In a report, dated March 20, 2014,³⁹ Dr. Meloff concludes that the Applicant had suffered a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She is unable to return to work until her multiple complaints are better understood. Cannot substantially perform her tasks and any employment for which she is suited due to the undiagnosed blackouts.

• OCF-9 encloses Functional Abilities Evaluation, dated April 21, 2014.

• May 5, 2014 OCF- 9: Enclosed find Orthopaedic Report, dated April 8, 2014. It states that as they have not received the income information, the IRB is discontinued, effective May 5, 2014 until they have the information under section 33.

• The Insurer sends an OCF-9 to the Applicant, dated May 28, 2014, outlining that the Applicant may be entitled to an IRB as early as May 27, 2013, less post-accident income from the research company. The Insurer requests documents to support the IRB claim, including T4 slips, income tax returns, the clinical notes and records of her family doctor and a copy of her WSIB file and employment records from 2012 to present. This request is repeated. Insurer asks for confirmation of period seeking IRB and income verification, and other documents such as employment file.

• September 28, 2015: termination of the IRB. State Farm denies eligibility for the benefit by letter and OCF-9, dated September 28, 2015. The termination is based on Dr. White’s Assessment Report, dated April 23, 2014⁴⁰ and Dr. Keith Meloff’s neurological addendum report, dated September 18, 2015.⁴¹

• OCF-9, dated September 28, 2015, with enclosed Section 44 Neurological Addendum Report, dated September 18, 2015, was sent to Applicant’s representative on September 28, 2015, with advice that the Insurer has made a determination that the Applicant does not suffer a substantial inability to perform the essential tasks of her employment and she does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

Dr. Ernest White, Orthopaedic Surgeon Assessment Report, dated April 23, 2014

Dr. White re-examined the Applicant, in person, on April 8, 2014. In his Assessment Report, dated April 23, 2014,⁴² he notes she has ongoing pain complaints in neck, shoulders, upper and lower back, migraine headaches and brief periods of intermittent numbness in both hands. Injuries were non-complicated soft tissue injuries, but she showed signs of marked self-limiting behaviour possibly out of fear of producing pain. He noted that the Applicant had minimal restrictions to her range of motion when he examined her on November 6, 2012, but that now she was “markedly restricted in all movements” in the examination on April 8, 2014. Dr. White found that the Applicant was engaging in “marked self-limiting behaviour.” (my emphasis) Dr. White diagnosed the Applicant with soft tissue strain cervical spine WAD II; myofascial strain thoracic spine; and myofascial strain lumbar spine. He noted that she needs further investigation to investigate her complaints of blackouts and headaches.

Dr. White commented:

There is no compelling documented or objective clinical evidence that Ms. Tesfagiorgis sustained any serious or substantial structural injuries that are solely and directly subject accident-related that would be anticipated to cause any permanent sequelae from a purely orthopaedic perspective as it relates solely and directly to the subject motor vehicle accident...

From an orthopaedic perspective, at this point, I suspect Ms. Tesfagiorgis has reached maximum medical improvement relative to her spine strain injury sustained in the accident on the above-noted date of loss.... From a purely orthopaedic perspective, however, I did not identify any compelling reason that would prevent or medically contraindicate Ms. Tesfagiorgis from returning to her pre loss activity levels...

Dr. Keith Meloff, Neurologist Assessment Report, dated September 18, 2015

Following receipt of the medical documents provided to State Farm on July 21, 2015, State Farm obtained a Section 44 Addendum to the Neurological Insurer Examination (“Addendum Report”) from Dr. Keith Meloff, dated September 18, 2015. Dr. Meloff concluded that, from a physical neurological perspective, the Applicant did not suffer a substantial inability, as a result of the motor vehicle accident, to perform the essential tasks of her employment or engage in any employment for which she may be reasonably suited by education, training or experience.⁴³

Dr. Meloff’s Assessment Report⁴⁴ referred to the initial date of assessment of March 7, 2014. He noted in the resulting March 20, 2014 Report that the Applicant had episodes of syncope and pre-syncope and her legs giving way. She had been complaining of incontinence as well as episodic numbness and weakness in her hands. She also described migraine like headaches. In his Report of March 7, 2014, he had stated that the Applicant requires additional investigation to clarify her blackout episodes, migraine headaches, and nausea. He noted that Dr. Reddy was consulted about the migraines; Dr. Borth provided urological evaluation and evaluation on incontinence in April 2015, which appeared to have preceded the accident and was thought not to be accident-related.

In his September 18, 2015 Addendum Report, however, Dr. Meloff finds that the syncopal episodes have resolved. There is no serious motor vehicle accident-related pathology to suggest migraines are due to the accident. She does not appear to have bladder problems that are accident-related. He concluded the Applicant, from a neurological perspective, does not suffer a substantial inability to perform the essential tasks of her employment and she does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. The records show ongoing problems with pain, anxiety, depression and fibromyalgia being treated with a variety of medications.

The Insurer terminated the IRB due to Dr. Meloff’s Addendum Report.⁴⁵ In the OCF-9, dated September 28, 2015,⁴⁶ the Insurer stated it had reviewed the Section 44 Neurological Addendum Report, dated September 18, 2015, and on that basis, it made the determination that she did not suffer a substantial inability to perform the essentials tasks of her employment and did not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

In addition, the Insurer further denied entitlement to the IRB on the basis of an orthopaedic assessment, dated April 23, 2014,⁴⁷ by Dr. White, whose opinion was that there were no compelling reasons, documented or objective evidence, that the Applicant had sustained any serious or substantial structural injuries as a result of this accident. In addition, Dr. Meloff opined that the Applicant, from a neurological perspective, did not suffer a substantial inability as a result of this accident to perform the essentials tasks of her employment or engage in any employment for which she was reasonably suited by education, training or experience.

Other Medical Reports

The MRI of the Applicant’s lumbar spine, dated November 23, 2013, was normal. The MRI of the Applicant’s head, dated November 23, 2013, revealed “no significant intracranial abnormality.” ⁴⁸

Dr. Kesava Reddy’s Report

The Applicant’s treating Neurologist, Dr. Kesava Reddy, examined the Applicant on September 4, 2014. Dr. Reddy commented:⁴⁹

She seemed to have no asymmetry in touch or pain, but interestingly she stated that she could not feel vibration at all in all four limbs, multiple sites. Similarly, proprioception was difficult for her on both sides. She made a lot of mistakes. However, she can do her tandem, in fact she can do her tandem backwards. In essence I am really not convinced that her neurologic deficits are real. Some of this is voluntary I believe...

Cervical spine MRI reveals a mild disk bulge at C5-C6 again of no clinical significance. Lumbar spine MRI is completely normal.

On November 16, 2014, the Applicant underwent an electroencephalogram (“EEG”)⁵⁰ as a result of her subjective complaints of blackout periods. Neurologist, Dr. Jamie Steckley, commented that the test was a “normal sleep EEG.”⁵¹

The Applicant’s second treating neurologist, Dr. Kathryn Giles, examined the Applicant on November 13, 2014. Dr. Giles also found no neurological abnormality:⁵²

I did not find any specific neurologic abnormality today, and both her neurologic examination and EMG are normal [apart from functional, non-anatomical sensory loss to all modalities in the upper extremities globally]. The MRI shows a small disc protrusion at C5/6. This is unlikely to even be a source of pain. Such disc protrusions are very common in people even in their 20s. The Chiari I malformation imaged with brain MRI is simply an Incidental congenital variant. Again it would not be contributing to her symptoms.

Dr. Giles indicated her examination failed to reveal any neurological diagnosis or objective medical finding. She did advise counselling. She commented that the headaches are likely muscular and could be due to medications in that she uses a lot of Tylenol 3s and Aleve.

Quantum of the IRB

I concur with the Insurer that evidence was not presented at the Hearing to quantify the Applicant’s claim for the IRB. The Application for Arbitration makes a claim for a weekly IRB in the amount of $400.00. The Applicant’s representative however stated the weekly amount claimed was $291.00. However, no evidence was introduced to outline how the amount of $291.00 is calculated.

Documents relating to the Applicant’s income included the following contained in Exhibit 1:

• The first OCF-2 provided by the research company, dated September 12, 2013, shows that in the 4 weeks before the accident the Applicant received gross weekly income in the amount of $424.00, $560.80, and $600.00 respectively. In the 52 weeks before the accident, she had worked a total of 20 weeks and had received $5,716.00.⁵³

• The Applicant, on request, sent another OCF-2⁵⁴ from the research company signed May 15, 2014, which shows that the last day worked at the research company was October 10, 2013 and included the same income information as outlined above for 4 and 52 weeks before the accident as in the first OCF-2.

• The third OCF- 2 was prepared by the restaurant and is dated May 2, 2014. It records employment from November 28, 2012 to May 26, 2013. Gross weekly income 4 weeks before the accident was $44.30, $233.67, $11.15 and $146.85. The total time worked in the previous 52 weeks is shown as 22 weeks, for total income of $5,004.94.⁵⁵

• The Applicant’s 2012 Notice of Assessment in 2012 shows income of $18,314.00.⁵⁶

• The T4 General for 2013 shows total income of $16,446.32 with a breakdown of income as follows: the research company - $10,793.82; another employer - $647.65; and the restaurant - $5004.94.⁵⁷

• An OCF-13 Declaration of Post-Accident Income and Benefits shows the research company’s income from November 2, 2011 to October 10, 2013 for 1430 hours to be $25,100.57; the income from the restaurant from November 28, 2012 to May 26, 2013 for 608.75 hours is $5,417.90.⁵⁸

• Record of Employment from the restaurant, dated July 7, 2013, showing 609 hours worked is $5,318.27.

The Insurer maintains it did not receive sufficient information entitling it to calculate the IRB until January 12, 2016.⁵⁹ The OCF-2s identified above outline varying amounts of income, but the amounts are not consistent with the information in the tax returns or the OCF-13. The Applicant did not introduce into evidence any payroll stubs, pay cheques, etc.

The Applicant’s Arguments

The Applicant relies on the testimony and clinical notes of Dr. Hahn, whose evidence is that from April 16, 2014, for medical reasons, the Applicant would be off work indefinitely.⁶⁰ He had initially placed her on modified duties and had noted that her recovery was taking a bit longer than anticipated. By January 7, 2013, she was depressed, and was off work completely by October 11, 2013. The Applicant’s representative submits that the family doctor knows his patient. The doctor states it is hard to predict how long she'll require to recover.

The Applicant maintains that State Farm agrees the Applicant is ill. Dr. Hahn also agrees she is ill. All who assessed her said there was something wrong. The Applicant is hard-working. After the motor vehicle accident, she had to struggle to go to work.

The Applicant, in her written submissions, dated September 9, 2016, alleges that Dr. Meloff’s Addendum Report, dated September 18, 2015, is flawed. The Applicant refers to Dr. Meloff’s report in which he suggests that more clarity is needed about the blackout episodes the Applicant is suffering. The Applicant’s family doctor in his clinical notes and records states that she continues to suffer from blackouts. Her urinary episodes were not thought to be accident-related, however in the Applicant’s assessment, this is contrary to Dr. Borth’s report that prior to the accident, she had no history of the urinary problem. Dr. Meloff, in his report, did not refer to the family doctor’s clinical notes, and uses the term “it appears that” showing lack of certainty with his diagnosis.

As to Dr. Keith Meloff’s Addendum Report, dated September 18, 2015, the Applicant’s representative in oral submissions raised a technical issue that the Insurer failed to inform the Applicant that there was to be an assessment under section 37 of the Schedule. Although this was raised in submissions, I give it no weight as no evidence was presented about any lack of notice.

The Applicant notes further that in Dr. White's reports, entered as Exhibit 8, Dr. White stated the Applicant needs further investigation. The Applicant’s prognosis is uncertain, and he has no conclusive statement one way or the other. The Applicant maintains State Farm has no medical or other reason to deny the Applicant benefits. Dr. Meloff, in the initial March 2014 report, stated the Applicant had issues as a consequence of the accident but she could work until her multiple complaints could be better understood. The doctors recognized the Applicant has issues as a consequence of the accident, but State Farm did nothing. State Farm was not listening to what the doctors are saying, and Dr. Hahn was the only doctor to stand by his records.

Insurer Arguments by way of Submissions

State Farm says the Applicant’s failure to return to work is not because of her injuries sustained in the accident and any ongoing pain symptoms, but rather for other reasons. She also was not a credible witness. In support of this position, State Farm, in its August 26, 2016 submissions, argued the Applicant gave evidence that she “had a clean bill of health,”⁶¹ but her medical records before the accident paint a much different story. For example, she suffered back pain and depression as early as March 13, 2006 from a back injury at work. The Applicant also suffered:

• from depression; a right shoulder injury; and a contusion to her buttock, as a result of the fall at work.⁶²

• from pre-accident psychological issues. As a result of her March 2006 injury, her treating doctor, Dr. Nashef, “recommended that because of her depressive mood for which he has prescribed medication, she should see a Psychologist for 6 to 9 sessions of psychotherapy.”

• On July 9, 2009, the Applicant attended the emergency room at St. Mary’s Hospital for urinary tract issues and lower back pain.⁶³

• On August 7, 2009, the Applicant called a telephone health line about her back pain and urinary tract issues about “old back injury... back pain... ongoing back pain got much worse last night”.⁶⁴

• The Applicant made a second WSIB claim with respect to a slip and fall and resulting fracture on January 25, 2010. Dr. Hahn writes on April 29, 2010: “Follow-up on WSIB.” The Applicant continued to see Dr. Hahn regarding right knee pain in May 2010. The report from the Physiotherapy Health Institute, dated April 13, 2010, advised that the Applicant was working on “very limited modified duties.”⁶⁵

• On July 23, 2014, the Applicant told her treating practitioner at Heartland that she was “diagnosed with Multiple Sclerosis.” The Applicant also reported that her “incontinence issues started months ago, possibly related to MS...”⁶⁶ The Applicant in reply submissions, dated September 9, 2016, denied this is a diagnosis.

Further, the Applicant gave evidence, under oath, that her physiotherapist at Heartland suggested she use a cane. There is no mention of a recommendation or need for a cane in the treating clinical notes and records, including to Dr. White. State Farm never received any treatment plans (OCF-18s) from Heartland for a cane.⁶⁷

Regarding work and income, on August 29, 2012, the Applicant disclosed to Heartland that she was working as a “medical laboratory technologist” and as a “bartender”. State Farm states the Applicant never disclosed to State Farm that she was working as a bartender.⁶⁸ The Applicant went out and got a second job as a waitress at the restaurant after the accident. The Record of Employment states that she simply “quit” her job, despite the fact that the Applicant claims she left for medical reasons.⁶⁹ State Farm states that the Applicant also gave evidence, under oath, that Dr. Hahn gave her letters for the restaurant, but the letters were not produced. Further, Dr. Hahn stated that he was not aware of any other jobs that the Applicant was working after the accident, other than her laboratory technician job and possibly a bartending job (learned from the report from the Applicant’s psychologist).⁷⁰

The Applicant also continued to work after the accident at a variety of other jobs in addition to bartending, including door-to-door fundraising for a hospital, and waitressing at another restaurant. Her evidence during the Arbitration Hearing was that she couldn’t remember when she worked at these jobs, how much she made in income or how long she worked at these jobs. The Applicant was certain, however, that she worked at these jobs after the accident. ⁷¹

Causation

The Insurer argues the Applicant cannot prove, on a balance of probabilities, that the accident caused her not to be able to work. State Farm states:

The chain of causation is broken by her ability to continue working and commuting … for fourteen months after the accident. The chain of causation is broken by her ability to obtain a second waitressing job… over four months after the accident. The chain of causation is broken where the Applicant was able to work an average of twenty-four hours a week as a waitress for half a year.

Further, State Farm urges that instead of being linked to the accident, there is evidence to show that the Applicant’s disability “is voluntary” or “in her head” as stated by Dr. Reddy. The Applicant provided evidence, under oath, that Dr. Hahn told her “that a lot of [her] symptoms could be just [her] nerves…”⁷²

The Insurer also maintains that the Applicant’s medical conditions such as psychological issues, reports that she soils herself, need for a cane, and balance issues are remote, both in severity and the duration of time of which they manifested after the accident. State Farm asserts they are far removed and unrelated to the “minor rear-end accident of July 10, 2012.”

Further, State Farm did not receive any request to fund psychological treatment. State Farm was not made aware that the Applicant was undergoing psychological treatment of any kind until the Arbitration Hearing. This suggests a negative inference must be drawn where the Applicant chose not to produce the treating psychological records to be considered as evidence during the Arbitration Hearing.

The Law

The Insurer relies on the case of Wadhwani v. State Farm Mutual Automobile Insurance Company,⁷³ where the Ontario Court of Appeal upheld a jury’s decision that the Applicant had not “suffered a substantial inability to perform the essential tasks of her employment as an aesthetician as a result of the accident and within two years of the accident.” The trial judge decided that to qualify for IRBs under s. 5 of the Schedule beyond a period of 104 weeks, an Insured must establish eligibility for the benefits within the first 104 weeks after the accident under s. 4(1) of the Schedule. The trial judge framed the first question for the jury accordingly. The Applicant appealed in challenging the correctness of the trial judge's interpretation of the eligibility test. State Farm states, in the view of the Ontario Court of Appeal, the trial judge was correct in the interpretation of the test for IRBs.

The Ontario Court of Appeal, in Burtch v. Aviva Insurance Company of Canada,⁷⁴ found that it was not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the Applicant is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required. In Burtch, it was found that the Applicant did not meet the medical test for IRBs because he had a grade 11 education and did not require significant upgrading or retraining to engage in long-haul trucking.

The Applicant is Able to Work

State Farm argues the Applicant has not provided any cogent, reliable medical evidence to prove, on a balance of probabilities, that the accident was the cause of her alleged inability to work. The Applicant has provided no medical evidence regarding the side effects of the medication she is taking.

The Applicant has not discharged her onus to prove that she suffered a substantial inability to perform the essential tasks of her employment as a result of the accident and within two years of the accident. She continued working at the research company and also worked at numerous other jobs to supplement her income. Waitressing, bartending and door-to-door fundraising are more physical and labour-intensive than the Applicant’s laboratory technician job at the research company.

The Applicant has not provided any evidence why she stopped working as a waitress, bartender or as a door-to-door fundraiser. She has not provided any evidence that her reasons for leaving these jobs were caused by the accident.

The Applicant also produced a Physical Demands Analysis Report from ergonomist Ms. Lynne Pronovost, dated January 4, 2012.⁷⁵ The report provides a detailed job description of a “Laboratory Patient Technician”. The report states that the maximum load or force for required lifting was fifteen pounds, but usually only five pounds. The only physical demands that the job required at a high frequency were pinching, gripping and fine finger movements. The Applicant has not provided any convincing medical evidence to show that she would not be able to physically do the job requirements stated in the Physical Demands Analysis Report, dated January 4, 2012.

As to “any employment”, the Applicant’s employment and education history make her eligible to work in a number of different fields. The Applicant did one year at Centennial College in arts and sciences after high school. She went to the Toronto Film School and completed a two-year program in video, film and television production for two years. She then completed a two-year program at Everest College for medical laboratory technician and assistant. The Applicant has worked as a bartender and a waitress.⁷⁶

Lastly, the Independent Vocational Assessment, by Ms. Kelly-Ann Smith, dated March 17, 2014, identified that the Applicant’s ability in arithmetic would suggest that she would meet employer expectations in a variety of work settings for math ability. The assessment identified the following sedentary jobs that the Applicant would qualify for, based on her skill set, her interests, education and training: Customer Service Clerk, Information Clerk, Front Desk Clerk, Receptionist, Retail Trade Manager in Training, and Telephone Solicitor.⁷⁷

State Farm outlines that the Applicant’s own family doctor, Dr. Hahn, is of the opinion that the Applicant can work a sedentary job. This was reiterated in a form he filled out, dated January 16, 2014.⁷⁸

Despite claiming that she is totally disabled from working, the Applicant is able to take weekend trips away to Niagara and week-long trips to Cuba and Jamaica. The Insurer maintains it is not a coincidence that she did not need to use her cane on these trips.

Failure to Provide Employment and Income Information

The Insurer claims the Applicant cannot claim entitlement to IRBs where she is in contravention of sections 33 and 7 of the Schedule, in that:

• The Applicant never provided State Farm with enough information to determine the Applicant’s entitlement to IRBs.

• State Farm was never advised by the Applicant which dates she was seeking IRBs, despite State Farm asking for this information numerous times.⁷⁹

• It wasn’t until State Farm was served with the Applicant’s Arbitration Brief on January 14, 2016 that State Farm was provided with the Applicant’s employment file from the restaurant.

• State Farm never received employment or pay information from the other laboratory job that the Applicant worked at within the fifty-two weeks leading up to the accident.

• State Farm never received employment or pay information from the Applicant’s other jobs as a waitress, bartender, and a door-to-door fundraiser.

The Insurer maintains the Applicant is obligated, pursuant to sections 7 and 33 of the Schedule, to provide State Farm with enough information to determine whether her IRB entitlement should be based on 70% of her gross pre-accident income in the fifty-two weeks leading up to the accident, or 70% of her gross pre-accident income in the four weeks leading up to the accident. The Applicant is also obligated, pursuant to section 7 and 33 of the Schedule, to report all of her post-accident employment and income to State Farm. The Applicant has done neither.

Subsection 33(6) is clear: “The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).”

Failing to provide reasonable information reasonably requested by State Farm pursuant to section 7 and 33 of the Schedule, but then arbitrating the issue of IRBs at Arbitration, is an abuse of process by the Applicant. The Insurer relies on the decision by Arbitrator Wilson of Michaud, et al and State Farm Mutual Automobile Insurance Company,⁸⁰ in which the claimants repeatedly failed to comply with the Insurer’s request for an Examination Under Oath. Arbitrator Wilson dismissed the Applicants’ Applications for Arbitration as a result.

There is also a possible inference to be drawn from the frustration of the examinations...the conscious avoidance of the examination under oath strongly suggests that any information that it would reveal would not favour the Applicants’ position that they have a valid claim for accident benefits.

This is not a single act or refusal but conduct that predates the arbitration pre-hearing. It is a continuous, and ongoing attempt to distort the arbitration process, and cumulatively, it can be found to be an abuse of that process.

The Applicant’s failure to report all of her pre- and post-accident employment and income to State Farm has prevented State Farm from properly evaluating the Applicant’s claim for IRBs.

CONCLUSION AND FINDINGS

The Applicant must on a balance of probabilities, prove that the injuries sustained in the motor vehicle accident and her resulting medical condition meet the tests in sections 5 and 6 of the Schedule for entitlement to IRBs. I find that the Applicant has not proven, on a balance of probabilities, that the injuries she sustained in the motor vehicle accident and her resulting medical condition meet the tests in the sections 5 and 6 of the Schedule for entitlement to IRBs. I find that the Applicant, from October 11, 2013 to July 10, 2014, did not suffer a substantial inability to perform the essential tasks of her employment, and from July 10, 2014 to date, she does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

I find that after the motor vehicle accident in question, Ms. Tesfagiorgis, for at least 14 months, was able to do her pre-accident employment as a lab technician. She was able to drive to work and continued driving for 14 months after the accident. She also obtained work as a waitress at the restaurant and continued this until May 26, 2013. I accept her testimony to the extent that the physical demands of the positon at the research company at some point became too strenuous for her. There is evidence that she complained to her family doctor about ongoing back and neck pain shown in the clinical notes and records and the Applicant’s testimony, and this occurred for many months after the accident.

The family doctor believes the accident was a triggering factor. The Applicant kept in close contact with the family doctor for the 2 years that post-dated the accident. Her issues about the back and neck pain are well documented in his clinical notes and records. I agree with the Applicant that her family doctor knew her best. The main pain complaints to the family doctor are pain in the neck and back. I acknowledge that the Applicant was taken out of the MIG and that the Applicant’s pain complaints intensified after the accident. The medical evidence indicates a number of other physical ailments arose some 21 and 24 months after the accident including blackouts, incontinence issues, headaches, tingling in the hands, and depression (the “Additional Symptoms”). However, I also find that, as pointed out by her family doctor, her referring doctors (Dr. Reddy and Dr. Giles) and the Insurer’s Assessors (Dr. White and Dr. Meloff) could not find explanations for the Additional Symptoms, including the blackouts which remain undiagnosed. Dr. Reddy even opined that the Applicant may be imagining the symptoms. Dr. Giles found no neurological explanation for the headaches, but suggested that the amount of pain medication taken may be a cause.

The Insurer, in its submissions, raises the fact that the Applicant told Heartland that she had been diagnosed with multiple sclerosis. The Applicant denied in her reply submissions that this was a diagnosis. This could have offered an explanation as to the Additional Symptoms being suffered by the Applicant. However, the Insurer had the opportunity to question the Applicant about multiple sclerosis, but chose not to do so. Instead, the Insurer raised this in written submissions. As such, I give this information no weight.

I concur with the statements by the Applicant that she has health issues. That was made clear. What is unclear even to the Insurer’s Assessors and the Applicant’s referring doctors and her family doctor is the cause of the numerous ailments that she developed months after the accident, including the Additional Symptoms. She attended IEs in November 2012, March 2014, April 2014 and September 2015, and other examinations such as with Dr. Giles on November 13, 2014. Other than Dr. Meloff’s initial report of March 20, 2014, none of the doctors can find an explanation for the ailments. There is no clear diagnosis of the underlying cause. I disagree with the Applicant’s characterization of Dr. Borth’s findings. Dr. Borth found the “bladder” issue arose before the accident and thought it to not be accident-related.

I agree with the Insurer that there is a causation issue and the pain complaints are too remote. The Applicant was able to continue working for 14 months after the accident. She was placed on modified duties and in October 2013, taken off work. Her family doctor, in January 2014, suggested she be off work for a further three months. But then on the Health Form of January 2014, he states she is capable of administrative work. Dr. White, by April 23, 2014, opines she is capable of working as the ailments assessed are not related to the accident.

I agree that the complaints are remote and the treating doctors and Insurer assessors do not attribute the pain complaints to the accident. Dr. Giles, Dr. White and Dr. Reddy do not find the symptoms they assessed to be accident-related. Moreover, there is the issue of quantum. Even if I were to have allowed the claim for an IRB between October 2013 and April 14, 2014, based on her family doctor’s advice in January that she be off work for three further months, there is no evidence as to quantum presented by the Applicant to support the claim. The Applicant bears the burden to present that evidence and has not done so. Furthermore, Dr. Hahn opined in January 2014 that the Applicant could do administrative sedentary work.

I prefer the evidence of Dr. White and Dr. Meloff, and find the evidence does not establish that the Applicant’s medical condition on October 11, 2013 and thereafter was caused by the accident and caused her to end work. The family doctor states she suffered chronic pain. No treatment plan was ever submitted for chronic pain. Also, no treatment plan was ever submitted for depression.

She testified she had a clean bill of health before the accident. I agree with the Insurer that the medical information, including the Applicant’s testimony, Dr. Hahn’s clinical notes and records, reports of X-rays and the summary from the WSIB file provided by the Insurer do not reflect this. She had health issues before the accident and had suffered a number of slip and falls at her workplace which created a back and knee injury. She showed signs of depression both before and after the accident. She was prescribed a number of prescription medications, including narcotics.

I agree that the Applicant’s evidence at times was not credible. Throughout the Hearing, I found the Applicant’s testimony was vague. For example, on many questions such as names of employers, where she worked and dates of vacations taken, she could not recall. As to the use of the cane, her physiotherapist provided the suggestion but she could not recall the date when a cane was recommended. She may have needed it for walking and daily life activities, but apparently, and I agree with the Insurer, this did not extend to periods when she is on vacation. She also did not disclose employment information to the Insurer such as the fact that she had worked as a server at another restaurant, and did some bartending. I place lesser weight on her testimony and greater weight on the testimony of Dr. Hahn and the expert reports provided at the Hearing.

Non-Compliance with Section 33

The Insurer has raised a non-compliance issue with section 33 and failing to provide information on income. I concur. A number of OCF-9s were sent by the Insurer which made numerous requests for income information and income tax information which was not presented until a short time before the Hearing.

I find that Ms. Tesfagiorgis has not met her burden of proof that she is suffering a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. In fact, while she may not currently be an appropriate candidate for a physically demanding job, there is substantial evidence that she does have functional abilities and is capable of other work such as sedentary administrative work.

In closing written submissions, Ms. Harper argued well-established principles that the post-104 test does not require a showing of un-employability. Rather, the relevant test is an inability to do employment for which she was reasonably suited by education, training, or experience. FSCO jurisprudence has established that suitability is a question of fact in each case, and it must be viewed fairly and realistically in the context of the Applicant’s education and employment background. Thus, alternative employment must be appropriate in nature, status, or remuneration.

I do not agree that Ms. Tesfagiorgis is not employable, or that she is completely unable to engage in any employment for which she is reasonably suited by education, training, or experience.

I find Ms. Tesfagiorgis is a young person who occupied two part-time positions. She has completed some certificate programs including a Lab Technician course and bartending. While she may not be ready to be lifting medium or heavy objects on a repeated basis or to do a physically demanding job, I heard no credible evidence that she could not perform the duties of her previous waitressing position, or as suggested by Dr. Hahn, clerical/secretarial/administrative jobs.

No evidence was presented on any attempts to look for employment.

Quantum of the IRB

I find that quantum was not proven by the Applicant. No supporting information was presented to support how the IRB amount is calculated. I note the information on income is inconsistent. The OCF-13 stated income totals do not match the income shown in the T4 slips attached to the tax return of 2013, nor the information presented by the employers in the OCF-2s, including income information quoted by her employers. Her income ranged from approximately $5,000.00 to $25,000.00 in the OCF-13. Yet the tax returns reflect income in the $16,000.00 and $18,000.00 range. The Applicant has not met her burden of proof to establish quantum.

Medical Benefits

The Applicant is not entitled to Medical Benefits claimed for chiropractic treatment provided by Heartland in the amount of $892.04, submitted September 11, 2013, and for $1,541.60, dated September 19, 2012, as these are not reasonable nor necessary. No evidence was led about the two Medical Benefits in dispute. The Applicant’s medical condition reveals that she was working at the time that both treatments were submitted to the Insurer, and at least in November 2012, was still considered within the MIG. Moreover, the Applicant’s family doctor states that the chiropractic treatment was not helping and may have been hurting the Applicant. I find these were properly denied as not reasonable and necessary. I find the Applicant did not meet her burden of establishing these treatment plans as medically reasonable or necessary.

Special Award

Section 282(10) of the Insurance Act provides that:

if the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator …. 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.

State Farm questions an Arbitrator’s jurisdiction to allow the Applicant to raise the Special Award on their own initiative. The Applicant maintains I have jurisdiction. Both provided extensive submissions on the point. FSCO cases have held an Arbitrator has inherent jurisdiction to consider a Special Award once a determination is made that the Insurer acted unreasonably. I find however that as there is no entitlement to a benefit by the Applicant, therefore there is no entitlement to a Special Award. As such, no further consideration will be given to the issue.

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.

December 5, 2016

Thérèse Reilly Arbitrator

Date

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

Neutral Citation: 2016 ONFSCDRS 327

FSCO A14-003779

BETWEEN:

HELEN TESFAGIORGIS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE 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. Ms. Tesfagiorgis is not entitled to receive a weekly IRB from October 11, 2013 to date, and ongoing. Quantum for the IRB is not proven.

2. Ms. Tesfagiorgis is not entitled to receive Medical Benefits for chiropractic treatment provided by Heartland in the amounts of $892.04 and $1,541.60.

3. State Farm is not liable to pay a Special Award.

4. Ms. Tesfagiorgis is not entitled to interest for the overdue payment of benefits.

5. 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.

December 5, 2016

Thérèse Reilly Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Transcript of the Arbitration, dated February 11, 2016, at page 96, line 11, Tab 1.
3. 3Exhibit 13.
4. 4Exhibit 2 is a letter, dated June 6, 2012, from the research company which confirms the Applicant’s employment with them since November 14, 2011 as a part-time Technician, Level 2.
5. 5Exhibit 1, Volume 2, Income Information, Tab A.
6. 6Id., Tab C.
7. 7Id., Volume 1, at Tab 18. OCF-9, dated January 30, 2014, in response to OCF-2 of September 12, 2013.
8. 8Note: In the Report of Mediator, the benefit is dated July 29, 2013.
9. 9Insurer Submissions, dated June 20, 2016, at paragraphs 49, 50.
10. 10Transcript, at page 89.
11. 11Id., at 90.
12. 12Exhibit 3, Written warning letter, issued December 18, 2012, requiring improvement in her work.
13. 13Transcript, at page 111.
14. 14Id., at page 122.
15. 15Transcript, Day 2, at page 49.
16. 16Spouse’s testimony.
17. 17Id., at page 53.
18. 18Id., at pages 65-66.
19. 19Id., at pages 98, 99.
20. 20Record of Employment, Exhibit 5, Volume 1, Affidavit of Kim Freed, Tab 3. OCF-2, dated May 2, 2014, Exhibit 1, Volume 2, Income Information, Tab C.
21. 21Id., at page 138.
22. 22Transcript, at page 102.
23. 23Id., at page 124.
24. 24Id., at page 81.
25. 25Transcript, at page 83. Closing submissions, dated August 26, 2016.
26. 26Id., at page 111.
27. 27Id., at page 114.
28. 28Transcript, at page 157.
29. 29Id., at page 159.
30. 30Id., at page 161.
31. 31Id., at page 172.
32. 32Id., at page 184.
33. 33Exhibit 5, Vol. 1, Tab 3, Affidavit of Kim Freed.
34. 34Applicant’s statement in transcript, at page 90.
35. 35Exhibit 12.
36. 36Exhibit 11.
37. 37Medical Health Form, Exhibit 5, Volume 1, Tab 3C.
38. 38Exhibit 10.
39. 39Exhibit 14.
40. 40Exhibit 8.
41. 41Exhibit 9.
42. 42Exhibit 8.
43. 43Exhibit 9, Addendum Neurological Insurer’s Examination from Dr. Keith Meloff, dated September 18, 2015, Tab DD. Explanation of Benefits (OCF-9), dated September 28, 2015, Written Submissions of State Farm, August 26, 2016, Tab EE.
44. 44Exhibit 9.
45. 45Exhibit 9.
46. 46Exhibit 4.
47. 47Exhibit 8
48. 48MRI of lumbar spine and head, dated November 23, 2013, Tab X.
49. 49Report of Dr. Kesava Reddy, Neurologist, dated September 4, 2014, Tab Z, State Farm’s written submissions, dated August 26, 2016.
50. 50EEG - a test used to detect abnormalities related to electrical activity of the brain.
51. 51EEG, dated November 16, 2014, Tab AA. State Farm’s written submissions, dated August 26, 2016.
52. 52Report of Dr. Kathryn Giles, neurologist, dated November 13, 2014, Tab BB.
53. 53Exhibit 1, Vol. 2, Income Information, Tab A.
54. 54Id., Tab 2 A.
55. 55Id., Tab 2 C.
56. 56Id., Tab B. There is no breakdown of the income stated in the document.
57. 57Id., Tab C.
58. 58Exhibit 1, Volume 1, Tab 24.
59. 59Transcript, Opening Statement, at page 77.
60. 60Exhibit 11.
61. 61Transcript of the Arbitration, dated February 11, 2016, at page 90, lines 15 to 19, Tab 1.
62. 62X-ray of Lumbar Spine, dated March 13, 2006, Tab A. Clinical notes from Dr. Hahn, dated March 23, 2006, April 11, 2006, June 22, 2006, August 3, 2006 and August 28, 2006, Tab B.
63. 63St. Mary’s Hospital Emergency Room Report, dated July 9, 2009, Tab F.
64. 64Sykes Assistance Service Corporation, Telephone Health Advisory Service Call Documentation, dated August 7, 2009, at 6:35 p.m., Tab G.
65. 65St. Mary’s Hospital Emergency Room Report, dated January 25, 2010, Tab HX. WSIB form, dated March 19, 2010, Tab J. MRI of knee, dated April 2, 2010, Tab J. April 13, 2010 report from Physiotherapy Health Institute to Dr. Hahn, Tab K. Clinical notes of Dr. Hahn, dated February 8, 2010 to July 13, 2010, Tab L. September 9, 2010 functional abilities form for WSIB relating to January 25, 2010 fracture, Tab M.
66. 66Treating clinical notes from Heartland, dated July 23, 2014 and August 2014, Tab O.
67. 67Transcript of the Arbitration, dated February 12, 2016, at pages 48 & 49, Tab 2. Clinical Notes and Records of Heartland (48 pages), Tab Q. Transcript of the Arbitration, dated February 12, 2016, at page 123, Tab 2.
68. 68Heartland form, dated August 29, 2012, signed by the Applicant, Tab GG. Clinical note from Heartland, dated September 4, 2012, Tab HH. Transcript of the Arbitration, dated February 12, 2016, at page 123, Tab 2.
69. 69Heartland form, dated August 29, 2012, signed by the Applicant, Tab GG. Clinical note from Heartland, dated September 4, 2012, Tab HH. Transcript of the Arbitration, dated February 12, 2016, at page 123, Tab 2.
70. 70Transcript of the Arbitration, dated February 11, 2016, at pages 122, 126, & 182-183, Tab 1.
71. 71Id.
72. 72Transcript of the Arbitration, dated February 11, 2016, at page 97, line 9, Tab 1.
73. 73Wadhwani v. State Farm Mutual Automobile Insurance Company, 2013 ONCA 662, [2013] O.J. No. 4972 (CA), Tab JJ.
74. 74Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479, 97 O.R. (3d) 550 (CA), Tab KK.
75. 75Physical Demands Analysis, dated January 4, 2012, Tab LL.
76. 76Transcript of the Arbitration, dated February 12, 2016, at pages 126-132, Tab 2.
77. 77Independent Vocational Assessment by Kelly-Ann Smith, dated March 17, 2014, Tab MM.
78. 78Medical Health Form, dated January 16, 2014, Tab NN. Transcript of Arbitration, dated February 12, 2016, at page 182, Tab 2.
79. 79See summary of these requests, Insurer’s submissions, dated June 20, 2016, paras. 36 to 41.
80. 80Michaud, et al and State Farm Mutual Automobile Insurance Company, FSCO A11-004437, A11-004496 and A11-004497, Tab OO.