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Neutral Citation: 2017 ONFSCDRS 181 FSCO A14-007546

BETWEEN:

(RITA) ANNA RAJASTE Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on February 15-17, 2017 and by written submissions received April 3, 2017

Appearances: Mr. Frank Mercurio and Ms. Saron Gebresellassi participated for Ms. (Rita) Anna Rajaste Ms. Kathleen F. O’Hara participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. (Rita) Anna Rajaste, was injured in a motor vehicle accident (“MVA”) on October 11, 2012 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Rajaste, 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 Arbitration Hearing are:

Is Ms. Rajaste entitled to Income Replacement Benefits (“IRBs”) in the amount of $263.47 per week from April 29, 2013 to date and on-going?
Is Ms. Rajaste entitled to a Medical Benefit in the amount of $1,965.20, dated January 1, 2013, by Health Max Physio?
Is Ms. Rajaste entitled to a Special Award?
Is Ms. Rajaste entitled to interest for the overdue payment of benefits?
Is either party liable to pay expenses in respect of the Arbitration Hearing?

Result:

Ms. Rajaste is not entitled to IRBs in the amount of $263.47 per week from April 29, 2013 to date and on-going.
Ms. Rajaste is not entitled to a Medical Benefit in the amount of $1,965.20, dated January 1, 2013, by Health Max Physio.
Ms. Rajaste is not entitled to a Special Award.
Ms. Rajaste is not entitled to interest for the overdue payment of benefits.
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 (“DRPC”).

MOTION: February 15, 2017

On the first day of the Hearing, the Insurer brought forward a Motion, requesting that the Applicant’s proposed rebuttal report by Dr. West not be allowed to be entered into evidence in accordance with Rule 39.1 of the DRPC which states:

39.1 Subject to Rule 39.2, all documents, reports (including experts' reports) and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing.

The Applicant stated that Dr. Langer’s initial orthopaedic report was served on the Insurer at the end of May 2016. The Insurer’s reply report by Dr. Saplys was served on the Applicant in December 2016. The Applicant then had Dr. West complete a rebuttal report. This was the rebuttal report that did not comply with Rule 39.1 of the DRPC. It was received by the Applicant on February 1, 2017 and served on the Insurer on February 10, 2017.

RULING

I allowed the report to be entered into evidence because the Applicant did everything possible to serve the report within the timelines stated in Rule 39.1 of the DRPC. The reason for the delay in serving the report was a result of the Applicant’s doctor not completing his report on time, not negligence on behalf of the Applicant. This report was a rebuttal report related to the Insurer’s initial report. In my opinion, the Insurer was not prejudiced if this rebuttal report was allowed to be entered into evidence because it only commented on the findings of its own assessor. Therefore, the Insurer’s Motion was denied.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant is married and has two children. At the time of the subject MVA, she was a passenger in the front seat of the car that her son was driving, when it was rear-ended at a red light. The total property damage to the vehicle was approximately $800.00. The Applicant sustained injuries to her neck and back. The Applicant was not working at the time of the MVA due to a prior workplace injury which took place in June 2012. After the workplace injury, the Applicant took time off work and began receiving Employment Insurance Benefits (“EI”). She collected EI from August 5, 2012 until August 3, 2013. Afterwards, on November 15, 2014, the Applicant applied for Canada Pension Plan Disability Benefits (“CPP”).² Her application for CPP was approved and she has not returned to work since.

EVIDENCE

The Applicant

The Applicant testified that this MVA has had a dramatic effect on her life. The Applicant testified that she went to the emergency room after the accident, but her OHIP summary stated that she attended on November 5, 2012, not October 11, 2012, the date of the MVA.³ She could not explain the discrepancy, nor could she explain why she didn’t go for medical treatment until three weeks post-accident. She was asked as part of her testimony to explain why she told Drs. Theodoropoulis, Saunders, and Leinzer that she went for medical treatment right after the MVA when the OHIP records showed otherwise.⁴ Again, she failed to provide an answer as to how there could be conflicting evidence.

The Applicant said that the MVA of October 11, 2012 exacerbated her pre-existing workplace injury. In addition, in the MVA, she sustained shoulder and back injuries. She testified that she never had back pain issues prior to the MVA of October 11, 2012. However, when asked under cross-examination why there was an entry in her medical notes and records on August 1, 2012 showing that she had an upper and lower back strain, the Applicant said she did not know why. She was also asked if there was a reason why she would doubt the authenticity of the Clinical Notes and Records (“CNRs”), and she said no there was no reason to disagree with the CNRs.

The Applicant stated that she never returned to work after the MVA, but at multiple other points in her testimony, she said that she did work after the MVA. On her OCF-2, the Applicant testified that June 22, 2012 was her last day of employment,⁵ but she could not explain why her Record of Employment said her last day was November 1, 2012.⁶

The Applicant confirmed that her highest level of formal education was Grade 12. She also received a Child Care Assistant Certificate. Prior to the MVA, she worked as an early childhood care worker at a day care facility in the City of Toronto. She testified that she was responsible for being a kitchen coordinator and a child care assistant. Her typical day would start around 8:00 a.m. After getting some of the older children off to school, the Applicant testified that she would prepare and deliver food to the various rooms in the building where daycare activities were taking place. She testified that the actual teachers would feed the students; she would just prepare and deliver the food. She would also clean up after the children had eaten. In between these sessions, the Applicant was also responsible for doing laundry. This routine would then repeat in the afternoon until her job ended around 4:00 p.m.

The Applicant confirmed that she was involved in a couple of prior accidents, one being a MVA in July of 2009 and the other being the aforementioned workplace injury on June 22, 2012. When asked about the prior MVA, the Applicant confirmed that the MVA occurred on July 10, 2009, over three years prior to the subject accident. She testified that she suffered lower back, shoulder and neck injuries from it and subsequently claimed accident benefits. The Applicant also testified that she took one year off of work because of that MVA.

The Applicant was also asked about the workplace injury. She testified that she injured two fingers throwing out diapers at work on June 22, 2012. The Applicant was off work following this injury/incident. She testified that the medical records showed she visited a clinic regarding this injury rather than her family doctor because her family doctor was away on vacation. The doctor at the walk-in clinic prescribed her medication for the pain. The Applicant testified that she received EI from August 5, 2012 until August 3, 2013 as a result of being off because of the workplace incident.⁷

Around the same time, in addition to the workplace injury, the Applicant testified that she also had some elective outpatient surgery completed on her backside. The surgery was successful and she healed completely. As a follow-up to this surgery, the Applicant visited her surgeon the day prior to the subject MVA. She testified that the surgeon said she was able to return to work. In addition, the Applicant was asked if she agreed with Dr. Theodoropoulis, when he stated in the Applicant’s CNRs that she was healed from both her July 2009 MVA and her 2012 workplace injury. In Dr. Theodoropoulis’ opinion, the Applicant’s medical issues were completely resolved.⁸ The Applicant disagreed and testified that all she knows is that in her opinion, her health has gone downhill after the MVA of October 11, 2012.

The Applicant was asked about an EI form she signed on December 12, 2012, where she stated that she was fired from her job.⁹ She signed on page 4 of this form that she was ready to work. When asked under cross-examination to explain this discrepancy between claiming IRBs and stating on an EI form that she was capable of working, she wasn’t able to do so. She confirmed that she was receiving regular EI from December 30, 2012 until August 3, 2013. At the same time, the evidence showed that the Applicant was “double-dipping” and receiving IRBs from December 30, 2012 until its termination date of April 29, 2013. When asked to explain this situation, the Applicant could not explain why she was not being honest and forthright.

Once her EI ended in August 2013, she applied for CPP.¹⁰ In Section 15 on the form, she stated that she had attempted to return to work. When asked to explain this contradiction, she testified that she didn’t know why she said that. Ultimately, she was approved for CPP disability, but she testified that if given the opportunity, she would love to go back to work because she likes taking care of children.

Mr. Gutano Amoruso

Mr. Amoruso testified that he has been the Applicant’s common-law husband for approximately nine years. He confirmed that the Applicant stopped working when she hurt her hand with the diaper-throwing workplace incident in June 2012. He was asked if he knew if the Applicant went to the hospital right after the incident. He said that he didn’t think that she did. Mr. Amoruso also testified that prior to the MVA of October 11, 2012, the Applicant had a bubbly personality and was a positive-thinking person. Since the MVA, the Applicant is depressed in his opinion.

Dr. Saplys

The Insurer called Dr. Saplys, an orthopedic surgeon, as its expert witness. His testimony centered on the Applicant’s injuries related to the MVA of October 11, 2012. Specifically, he commented on the Applicant’s injuries causing her to have either a substantial inability to engage in her pre-MVA employment, or a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.¹¹ Dr. Saplys testified that his practice includes completing both accident benefits and WSIB assessments. The doctor stated that during his assessment of the Applicant, he asked if there were other MVAs that he should be aware of. The Applicant replied that there were none. Dr. Saplys testified that it was only at a later date that he became aware that the Applicant was involved in a prior workplace incident and a prior MVA.

Dr. Saplys then conducted physical-related tests. He testified that when he conducted these tests on the Applicant, her results did not have a normal pathology. In essence, he testified that physically, the Applicant’s reactions were not reflective of her stated injuries.

When asked about the MRI of the Applicant’s cervical spine,¹² he said in his opinion, the changes seen in the MRI were degenerative in nature, which one would expect to see as a person ages. Ultimately, he testified that if the Applicant was complaining of pain, it was related to her degenerative issues, not MVA-related. When asked about the MRI of the Applicant’s lumbar spine, where there were also degenerative changes shown, again, he testified that these issues were not caused by the MVA.

Dr. Saplys was asked in his report to comment on the Applicant’s injuries as they relate specifically to her having a substantial inability (pre-104) or a complete inability (post-104) to return to work. He said that the injuries the Applicant suffered as a result of the MVA of October 11, 2012 did not cause her to stop working from a medical perspective. In his testimony, when asked to elaborate on the Applicant’s overall conditions when he assessed her, he said in his opinion, even though he never wrote about it in his report, the Applicant showed signs of pain magnification. He felt that there was no reason to comment on the pain magnification, because in his assessment, he had already come to the conclusion that the Applicant’s injuries were not conducive to her being unable to work.

ANALYSIS

IRBs

I found the Applicant’s testimony to be contradictory and lacking credibility. As a result, I put little weight on her testimony and significantly more weight on the documented medical and work-related evidence. The Applicant is claiming both pre- and post-104 IRBs, but there was no documented evidence that she attempted to return to work after the MVA.

The onus is on the Applicant to prove that she suffered a substantial and/or a complete inability to work as a result of the accident on October 11, 2012. Section 5(1) of the Schedule provides for an Applicant’s entitlement to an IRB as follows:¹³

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

The insured person

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.¹⁴

The Schedule in Section 6(1) provides a guideline as to what the amount of the IRB shall be.

(1) The amount of the income replacement benefit shall be

(a) for each of the first 104 weeks of disability, 80 per cent of the insured person’s net weekly income from employment determined in accordance with section 61; and

(b) for each week after the first 104 weeks of disability, the greater of the amount specified in clause (a) and $185. O. Reg. 403/96, s. 6 (1).

The question germane to the Applicant’s claim for IRBs is, does the evidence show that the Applicant’s injuries, as a result of the MVA of October 11, 2012, prevent the Applicant from working? Based on the evidence, I have concluded that the Applicant is not prevented from working.

The Applicant didn’t have any medical experts testify that her injuries were directly caused by the MVA.

Contradictions in the Applicant’s testimony along with her own medical evidence proved the Insurer’s case more than her own. From a medical perspective, there was no evidence conclusively tying the Applicant’s injuries from the MVA to her reported complaints, thereby preventing her from working. In fact, the evidence overwhelmingly shows the Applicant could work.

The Applicant bears the onus to provide medical evidence that as a result of the MVA, she is unable to return to her pre-MVA employment. The Applicant had a pre-existing history of medical issues, but none of these issues appear to have been exacerbated by the MVA.

If an Applicant doesn’t suffer a substantial inability to engage in any employment within 104 weeks after the MVA, the Applicant will not qualify for post-104 IRBs either. Based on the evidence presented, the Applicant did not suffer a substantial inability to engage in her pre-MVA employment, much less suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

Medical Benefit

There was a single medical issue in dispute. No evidence was submitted at the Hearing showing that the treatment plan in dispute was reasonable or necessary. With the onus on the Applicant to prove that this treatment plan was reasonable and necessary, she failed to produce evidence that this was the case.

Special Award

Since no benefits were found to be payable, there is no Special Award to be granted.

CONCLUSION

The onus was on the Applicant to prove her case. In this regard, the Applicant failed to submit evidence to meet this threshold. In order to meet this threshold, the Applicant had to show a direct connection between her injuries and the subject MVA. The evidence has to match the story that the Applicant is telling. In this case, it did not.

Whenever the Applicant was challenged on discrepancies in her testimony, her default answer was she didn’t know or she didn’t remember. There were significant misleading statements that the Applicant gave to her doctors, assessors and even at this Hearing. For example, she claimed she went to the emergency ward at the hospital immediately following the MVA, but the evidence overwhelmingly showed that this was not the case, and in fact, the records show she sought medical treatment approximately three weeks after the MVA. The Applicant’s credibility completely undermined her case. The evidence even showed that for a time, the Applicant was double-dipping, receiving both EI and IRBs. Further, the evidence tendered at this Hearing showed that the Applicant could have continued working.

For the above stated reasons, I find that the Applicant failed to prove her case, and as a result, all issues in dispute are denied.

EXPENSES:

The parties did not make submissions on 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 DRPC.

June 26, 2017

Jeff Musson Arbitrator

Date

Financial Services Commission of Ontario