Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 167 FSCO A13-005469

BETWEEN:

S.P. Applicant

and

UNIFUND ASSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Anne Sone Heard: November 24, 25, 26, 2014, January 30, June 5, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Final written submissions were received September 12, 2016.

Appearances: Roman Baber for S.P. Dominique Zipper for Unifund Assurance Company

Issues:

The Applicant, S.P., was injured in a motor vehicle accident on August 25, 2011. She applied for and received statutory accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ Unifund determined that S.P.’s injuries fell within the Minor Injury Guideline and on that basis declined payment of additional medical and assessment benefits beyond $3,500. The parties were unable to resolve their disputes through mediation, and S.P. 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 S.P. entitled to receive a medical benefit in the amount of $3,246.02 relating to treatment at Concord Wellness Recreation Clinic for a treatment plan dated September 6, 2011?²

2. Is S.P. entitled to payment of $1,027.92 for an Assessment of Attendant Care Needs and Form 1 proposed on September 29, 2011?

3. Is Unifund liable to pay S.P.’s expenses in respect of the arbitration?

4. Is S.P. liable to pay Unifund’s expenses in respect of the arbitration?

5. Is S.P. entitled to interest for the overdue payment of benefits?³

Result:

1. S.P.’s claims are dismissed.

2. The issue of the expenses of this proceeding is deferred.

EVIDENCE AND ANALYSIS:

Overview:

On August 25, 2011, S.P. was a front-seat passenger in a car driven by a friend. The vehicle she was in rear-ended another vehicle. She testified that the impact of her accident occurred at approximately 5 to 10 kilometres per hour.⁴

S.P. submitted various claims for medical treatment and an attendant care assessment. Unifund denied these claims on the basis of reports following an insurer’s examination by an orthopaedic surgeon. These reports stated that the proposed medical treatments were not reasonable and necessary and that S.P.’s impairments were minor and fell within the provisions of the Minor Injury Guideline (MIG).

S.P. submitted that she was entitled to the medical benefit and assessment that she was claiming because:

• The burden of proof in MIG cases is on the insurer
• She did not fall under the provisions of the MIG because of:
  • Compelling evidence of a pre-existing medical condition, namely osteoporosis, that prevented her from achieving maximal recovery if she was subject to the $3,500 limit for medical claims; and
  • A diagnosis of chronic pain syndrome.

I find the following:

• The burden of proof is on S.P. to prove that her impairments fall outside the MIG.
• S.P. failed to provide compelling evidence of a pre-existing medical condition that prevented her from achieving maximal recovery from the minor injury if she was subject to the $3,500 limit for medical claims; and
• S.P. failed to prove that she had chronic pain syndrome.
• As the MIG limit of $3,500 has already been used up, S.P. is not entitled to receive the medical benefits or the cost of the assessment she is claiming.

Did S.P. sustain an impairment that is a predominantly “minor Injury” as defined in the Minor Injury Guideline (MIG)?

S.P.’s Credibility:

In her examination-in-chief, S.P. appeared to testify in a straightforward manner.

During her cross-examination, S.P. refused to answer numerous questions pertaining to items such as her pre and post-accident unprescribed opiate drug use. This substance abuse was documented in her family doctor's clinical notes and records.

She also initially refused to answer questions regarding the loss of her licence to practice as a registered practical nurse. On first day of her cross-examination, when she did not want to answer questions regarding the suspension of her licence from the College of Nurses, her counsel advised her to not answer on the grounds that it might incriminate her, a position which she adopted. However, this is an American convention which is not applicable in Canada.

On the second day of her cross-examination, she refused to answer these sorts of questions on the grounds that this matter was under appeal. When asked about the status of the appeal, she testified that in the over two years since the decision of the College of Nurses, the only step she had taken in this regard was one phone call to inquire about the possibility of appealing. It was not clear when this phone call was made.

S.P. acknowledged and accepted that her refusal to answer so many questions would result in numerous adverse inference⁵ rulings against her. This, in turn, impacted on her credibility, and her ability to prove parts of her case, such as her references to pain. For example, her withdrawal symptoms might well have impacted the alleged increase in the frequency and severity of her headaches post-accident, and this pain may have influenced Dr. Pivtoran’s diagnosis of chronic pain syndrome.

Having heard her evidence, I drew adverse inferences for the reasons set out below:

• Upon re-examination, S.P. testified that the only reason for the suspension of her licence was the non-payment of fees. Given how vigorously she had opposed answering questions regarding this matter, this was simply not believable.⁶
• There were also discrepancies in the evidence regarding S.P.’s work. In her initial statement to Unifund, she stated that she did not miss any time off work; however, at the hearing, she testified that she missed two to three weeks of work. Although requested months before the hearing, no employment records were produced to verify these statements either way.
• Further, although S.P. saw her family doctor and visited a walk-in clinic on numerous occasions for various reasons after the accident, there is no reference to the accident. While under cross-examination, S.P. testified that she did speak to doctors about it, but they did not note it in their clinical notes and records, (which would be in breach of their professional duties), nor did they bill OHIP for it.
• There is also no evidence from S.P.’s family doctor, (who had known and treated her for several years both pre and post-accident) as to whether she was in or out of MIG.

Given the numerous adverse inferences drawn against her, I did not find significant parts of her evidence to be credible.

Medical Evidence:

S.P.’s Pre-Accident Condition:

In a bone density scan taken on June 19, 2008, the “Impression” section of the report indicated that:

Low bone density is present. Further evaluation is necessary. This may be a reflection of low peak bone mass.

Although no specific diagnosis was made, the report stated that the mineralization in S.P.’s lower spine was moderately reduced, and suggested a WHO (World Health Organization) classification of osteoporosis.

In July 2008, S.P.’s family doctor, Dr. Vania diagnosed S.P. with bone loss. He prescribed diet, exercise, recommended calcium and vitamin D supplements, and suggested that S.P. stop her birth control pill. He did not prescribe any osteoporosis medication.

The clinical notes and records of Dr. Vania dated December 1, 2009, indicate that S.P. had an addiction to opiates prior to the accident. In addition, the OHIP summary shows numerous instances where S.P. sought medical treatment for drug dependence prior to and after the accident.

S.P.’s Post-Accident Condition:

S.P. stated that she injured her neck, back, left knee and also had an exacerberation of her migraine headaches.

S.P. testified that her neck had gotten better since the accident. Regarding her back pain, she said that she has shooting pain from mid-back to her tailbone daily. When the weather is cold or damp, she indicated that her knee pain is worse, and sometimes she is in excruciating pain. S.P. did not sustain any bone fractures as a result of the accident.

S.P. testified that she worked as a registered practical nurse prior to the accident. S.P. missed little, if any time off work after the accident. The records of Dr. Vania, (S.P.’s family doctor) show that she did not attend his office until April 2, 2012.⁷ There is no mention of this accident in any of the clinical notes and records produced from Dr. Vania or the Brittany Glen Medical Centre, a walk-in clinic she attended.

S.P. testified that she was withdrawing from her opiate dependence after the accident.

Report of Dr. Soriano:

At the request of Unifund, Dr. Soriano, orthopaedic surgeon, prepared a report dated February 1, 2012. He also prepared an addendum report dated February 17, 2012. These reports were prepared in response to S.P.’s submission of various OCF-18’s prepared by Dr. Sadeghi of Wellness Recreation Clinic requesting chiropractic therapy, acupuncture, massage therapy, med/ rehab and exercise equipment. Dr. Soriano found that S.P. did not require any further physiotherapy or chiropractic treatments, goods or services, but did provide her with a home exercise program.

Dr. Soriano also found that her injuries fell within the MIG parameters, and noted that there was no evidence of a pre-existing condition that he believed would prevent her from achieving maximum medical recovery from her injuries.

Report and Evidence of Dr. Pivtoran:

At the request of S.P., Dr. Pivtoran, chiropractor, provided a report dated October 24, 2014. Dr. Pivtoran was qualified as an expert in musculoskeletal matters.

Dr. Pivtoran testified that S.P.’s osteoporosis is a pre-existing condition that would prevent S.P. from achieving maximal recovery if she were subjected to the MIG limit of $3,500. He suggested that the effect of osteoporosis on a muscle injury would be to decrease the blood supply to all tissue around the bone, and thereby prolong the recovery and increase the pain level of the patient.

I do not find Dr. Pivtoran’s evidence regarding the effect of S.P.’s osteoporosis on her recovery “compelling” for the following reasons:

• He admitted that 98% of his work was for victims of accidents, which makes it difficult for me to believe that he is totally unbiased in this case.
• His report does not refer to which of S.P.’s clinical notes and records he reviewed prior to writing his report. I note, for example, that he refers to S.P.’s history of osteoporosis and migraines, but does not mention drug dependence.
• On page 3 of his report, he mixes up S.P.’s right and left knee.
• Although he refers to “scientific literature” in the conclusion of his report, he does not cite any texts, journals, articles or clinical studies to support his opinion.
• There is no evidence to suggest that Dr. Pivtoran himself is a leader in this field.
• Although, as a chiropractor, Dr. Pivtoran was qualified as an expert on musculoskeletal matters, this does not necessarily make him an expert on osteoporosis.

Dr. Pivtoran also states in his report: “It appears that [S.P.] had developed chronic pain syndrome which also requires treatment outside of the Minor Injury Guideline.” I do not find Dr. Pivtoran’s evidence regarding chronic pain syndrome persuasive for the following reasons:

• It is mainly based on self-reports from S.P., who I found to lack credibility, as discussed above.
• Dr. Pivtoran is not qualified to opine on psychological matters.

As a result, I do not accept Dr. Pivtoran’s evidence that S.P. had developed chronic pain syndrome.

Findings, Analysis and Conclusion regarding whether S.P. sustained an impairment that is a predominantly “minor Injury” as defined in the Minor Injury Guideline (MIG):

Findings:

I find as follows:

• As set out in the Director’s Delegate’s decision in Belair Insurance Company Inc. and Scarlett,⁸ and affirmed by the Divisional Court,⁹ the burden of proof is on S.P. to prove her case.
• Due to numerous findings of adverse interest against her, S.P. was not a credible witness.
• There was no compelling evidence that her osteoporosis or alleged chronic pain syndrome were sufficient to remove her from the MIG limit of $3,500 under section 18(1) of the Schedule.

Analysis and Conclusion:

Pursuant to the MIG that was in place at the time of this accident, an insured person’s impairment comes within the MIG if the impairment is predominantly a “minor injury” unless, based on compelling evidence provided by his or her health practitioner, (such compelling evidence to be submitted by the health practitioner to the Insurer in Form OCF-18, with medical documentation attached) the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the Schedule or is limited to the goods and services authorized under the MIG.

A “minor injury” is defined in the MIG as a sprain, strain, whiplash-associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is meant to be interpreted to apply where a person sustains any one or more of these injuries. A minor injury does not include: a bone fracture; any complete tear of muscles, tendons or ligaments; or, complete dislocation of any joint.

S.P. advances two alternative arguments as to why her impairments do not fall within the MIG.

First, she argues that she had a pre-existing medical condition that prevented her from achieving maximal recovery from the minor injury if she was subject to the $3,500 limit referred to in section 18(1) of the Schedule or if she was limited to the goods and services authorized under the MIG. In the alternative, she submits that the chronic pain she developed after the accident takes her out of the MIG (because chronic pain is not a clinically associated sequelae.)

With respect to the first argument, (pre-existing condition), while there is objective evidence to suggest that S.P. has osteoporosis, I do not find that this amounts to compelling evidence that takes her out of the MIG for the following reasons.

The MIG requires compelling evidence provided by her health practitioner that S.P. has a pre-existing medical condition that was documented before the accident and that will prevent her from achieving maximal recovery from the minor injury if she is subject to the $3,500 limit referred to in section 18(10) of the Schedule. Although her bone scan suggested that she has osteoporosis prior to the accident, S.P.’s family doctor, Dr. Vania diagnosed her with bone loss. He did not consider her condition serious enough to warrant prescribing medication. This is hardly “compelling evidence.”

“Compelling evidence” of a pre-existing condition means more than simply credible evidence¹⁰ or persuasive evidence.¹¹

The MIG also requires that “compelling evidence” is to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner. There was no “compelling evidence” of any pre-existing medical condition provided by Dr. Sadeghi in his OCF-18s.

In addition, for the reasons outlined above, I give Dr. Pivtoran’s report and testimony regarding S.P.’s mild (in hip) and moderate (in back) osteoporosis little weight. I also did not find Dr. Pivtoran’s evidence “compelling” that S.P.’s moderate osteoporosis will prevent her from achieving maximal recovery from the minor injury if she is subject to MIG limits.

That is not to say that a pre-existing condition of osteoporosis will never be “compelling evidence” that an insured is entitled to benefits beyond the MIG limits. My findings are based on the particular constellation of facts in this case. In this case, there is no evidence that S.P. showed “compelling” consequences of osteoporosis such as fractures prior to, during or after the accident.¹²

With respect to the second argument (chronic pain syndrome), I do not accept Dr. Pivtoran’s diagnosis of chronic pain syndrome, as it has a psychological element, and he is not qualified to opine on psychological matters. In addition, his diagnosis is based on S.P.’s self-reports of pain. For the reasons mentioned above (especially the adverse inferences I was compelled to draw against her), I find that S.P. lacked credibility.

Therefore, I find on the facts of this case that the impairment S.P. sustained as a result of the accident is predominantly a “minor injury.”

Is S.P. entitled to the medical benefit and/or to the attendant care assessment she is claiming?

As explained above, I have found that the impairment S.P. sustained as a result of the accident is predominantly a “minor injury” and that she has failed to adduce compelling evidence from her health care practitioner that she had a pre-existing medical condition that would exclude her from the MIG.

Since Unifund has already paid the maximum amount required under the MIG, no other medical or assessment benefits are payable under the Schedule in this case.

Further, due to weaknesses in her credibility and the failure to provide any clinical notes and records or testimony from the treating clinic, S.P. failed to prove that proposed medical treatment was reasonable and necessary.

As S.P. consistently said that she was independent in her self-care, an attendant care assessment was not reasonable or necessary.

EXPENSES:

If the parties are unable to resolve the issue of expenses of this proceeding, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

June 12, 2017

Anne Sone Arbitrator

Date

ARBITRATION ORDER

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 167 FSCO A13-005469

BETWEEN:

S.P. Applicant

and

UNIFUND ASSURANCE COMPANY Insurer

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, 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. S.P.’s claims are dismissed.

2. If the parties are unable to resolve the issue of expenses of this proceeding, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

June 12, 2017

Anne Sone Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2$3,246.02 is the total amount billed by Concord Wellness Recreation Clinic for seven treatment plans less the Minor Injury Guideline limit of $3,500 paid by Unifund.
3. 3At the outset of the hearing, S.P. advised that she abandoned her claims for attendant care benefits, housekeeping and home maintenance benefits and for a special award.
4. 4Despite repeated requests from Unifund, S.P. never produced any copies of a Motor Vehicle Accident Report or a Self-Reporting Collision Report.
5. 5An adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence.
6. 6She also declined to have this decision initialized, but I have used my discretion to do so.
7. 7Approximately 7 months after the accident.
8. 8(FSCO P13-00014, November 28, 2013)
9. 92015 ONSC 3635.
10. 10Director’s Delegate Evans at page 2 of appeal decision in Belair and Scarlett, above.
11. 11Basson and Royal and SunAlliance Insurance Company of Canada (FSCO A13-005199, May 7, 2015)
12. 12In any event, fractures would have removed her from the MIG.