Neutral Citation: 2017 ONFSCDRS 193

FSCO A14-004894

BETWEEN:

(ANTOINE) ANDREW BONITO Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on May 30 and 31, 2017 and by written submissions completed on June 1, 2017

Appearances: Mr. Nader Fathi, Licensed Paralegal, participated for Mr. (Antoine) Andrew Bonito Ms. Maggie Morgan, Lawyer, participated for State Farm Mutual Automobile Insurance Company Ms. Ljubica Tadic on behalf of State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. (Antoine) Andrew Bonito, was injured in a motor vehicle accident (“MVA”) on July 26, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Bonito, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is Mr. Bonito entitled to receive a Non-Earner Benefit (“NEB”) in the amount of $185.00 per week from January 26, 2012 to July 26, 2012?
Is Mr. Bonito entitled to receive Medical Benefits claimed in the amounts as follows for services by Physiomed Leaside: i) $1,322.84 for physiotherapy, dated December 14, 2011; ii) $1,899.26 for physiotherapy, dated February 1, 2012?
Is Mr. Bonito entitled to receive $1,272.40 for a psychological assessment, dated July 28, 2011?
Is Mr. Bonito entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

Mr. Bonito’s claim to receive a NEB from January 26, 2012 to July 26, 2012 is dismissed.
Mr. Bonito’s claims to receive Medical Benefits in the amounts of $1,322.84 and $1,899.26 for physiotherapy are dismissed.
Mr. Bonito’s claim to receive the cost of a psychological assessment in the amount of $1,272.40, dated July 28, 2011, is dismissed.
As all claims for this Arbitration are dismissed, Mr. Bonito is not entitled to any interest.
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”).

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant is currently 27 years old. On July 26, 2012, he was the seat-belted driver of a Mercedes Benz C220, which was stopped at a stoplight on Warden Ave. The vehicle the Applicant was driving was involved in a four-chain vehicle collision. His vehicle was hit from behind by another vehicle, which caused the Applicant’s vehicle to hit the vehicle in front of him. The Applicant’s vehicle was written off.

The Applicant was the only witness who testified at the Hearing. There were no documents submitted prior to the Hearing on behalf of the Applicant.

Within the Applicant’s written closing submissions was included a prior without-prejudice settlement proposal. The Insurer asserted that the Applicant waived his “without prejudice” privilege by making submissions with respect to the settlement proposal.

The Applicant also noted in his written closing submissions that he was claiming NEBs from January 26, 2012 to January 26, 2014. The Insurer objected to the timeframe, and stated the timeframe for NEBs in dispute, per the Pre-Hearing letter and discussion at the start of the Hearing, was January 26, 2012 to July 26, 2012. I agree that the Insurer’s submission is accurate with regards to the timeframe being claimed for the NEBs.

Motion by Insurer to Dismiss the Claim for NEBs

On the first day of the Hearing, the Insurer requested that the Applicant’s claim for NEBs be dismissed. The Insurer had filed written submissions on point prior to the Hearing.²

The Insurer stated that it received a copy of a Disability Certificate (“OCF-3”), dated February 2, 2017.³ On the OCF-3, beside the question: “Does the Applicant suffer a complete inability to carry on a normal life”, the box was checked off as “No.” The Insurer stated that the Applicant must prove he suffered a complete inability to carry on a normal life as a result of the MVA, within 104 weeks of the MVA. The Insurer further states there was no OCF-3 provided with the Application for Accident Benefits. The only OCF-3 the Insurer had on file was submitted six years following the MVA and did not support that the Applicant has a complete inability to carry on a normal life.

The Insurer relied on three cases. The first case was from the Ontario Court of Appeal, Sagan v. Dominion.⁴ This was an Appeal case in which the appellant never submitted an OCF-3 but had claimed NEBs in his Application for Accident Benefits. The action was barred by the two-year limitation period. The Insurer also relied on Steele v. Intact.⁵ There, the plaintiff had never filed an OCF-3 to establish she met the criteria for NEBs and the limitation period expired. The last case referenced by the Insurer was Volpe v. Co-operators.⁶ The plaintiff was statutorily barred from receiving NEBs as she had failed to submit a completed OCF-3 as required by s. 35(2) of the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O. Reg. 403/96 and under s. 36 of the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10. The plaintiff was statutorily barred from mediating and litigating her claim as noted within s. 55(1) of both Schedules and s. 281(2) of the Insurance Act.⁷

The Insurer stated that the Applicant should be statutorily barred from receiving NEBs as he failed to submit an OCF-3 as required under s. 36 of the Schedule. This would therefore statutorily bar the Applicant from mediating and subsequently arbitrating this claim in accordance with s. 55(1) of the Schedule, as the Applicant has failed to notify the Insurer of the circumstances regarding the claim for NEBs pursuant to s. 12 of the Schedule.

The Applicant responded that there was an OCF-3 submitted by Physiomed Leaside shortly after the MVA, but the Insurer stated it had no record of receiving any OCF-3, other than the one dated February 2, 2017.

The Applicant stated that his accident benefit claims file had been inactive for two years due to the fact that he was incarcerated. The Applicant further stated that he was not working at the time of the MVA; he was attending school. He did not return to school following the MVA, and therefore should be entitled to receive NEBs. To date, the Insurer has not paid any NEBs to the Applicant.

I made an oral ruling that the Applicant could proceed to the Hearing with his claim for NEBs, to allow him to present any evidence on point.

Motion Raised by Applicant - Request to Admit Second OCF-3

On day two of the Hearing, the Applicant raised a Motion requesting that I allow an OCF-3, dated October 25, 2011, to be admitted at the Hearing. The Insurer opposed the Motion and stated I should not allow the OCF-3 to be admitted as a copy of this OCF-3 had never been served upon the Insurer.

The Applicant stated the OCF-3 had been submitted to the Insurer, but provided no proof that it had been previously provided. The Applicant stated that the Insurer must have had an OCF-3 on file or it would not have paid out any Medical Benefits, and that the Insurer had paid for treatment under the Minor Injury Guideline.

The Insurer stated that it had only received one OCF-3, dated February 2, 2017; day two of the Hearing was the first time the Insurer was made aware of another OCF-3. The Insurer disagreed with the Applicant’s statement that an OCF-3 is required for an Insurer to pay Medical Benefits. The Insurer stated that it only requires a Treatment Confirmation Form (OCF-23) to be submitted and then Medical Benefits can be paid. The OCF-3 is only required if an Insured is applying for specified benefits.

I made an oral ruling that the OCF-3, dated October 25, 2011, would not be admitted at the Hearing. I relied on Rule 39 of the DRPC. The OCF-3 had not been filed at least 30 days prior to the commencement of the Hearing. There were no extraordinary circumstances provided by the Applicant as to why this document had not been filed in accordance with Rule 39. The Applicant had not provided a fax confirmation or a Statement of Service to show the OCF-3 he requested to admit was previously provided to the Insurer.

Applicant’s Submissions

In testimony, the Applicant stated that while he was stopped at a red light, a vehicle from behind hit his rear bumper. This caused his head to hit the steering wheel. The Applicant stated he suffered whiplash.

At the time of the MVA, the Applicant stated he was enrolled full-time at Centennial College in the Community and Justice Service Program. It was a two-year program and he completed one year of the program. He had attended class five days per week for approximately six hours per day. Following the MVA, the Applicant stated he was unable to return to school and complete his coursework as it was difficult to sit for prolonged periods of time due to pain in his lower back resulting from the MVA.

Prior to the MVA, the Applicant stated he led a very active lifestyle. He enjoyed playing sports including basketball, working out at the gym, and assisted his parents with the lawn maintenance and snow removal. The Applicant further stated he no longer engages in these activities and leads a much less physically-active lifestyle since the MVA, due to his lower back pain. He is currently employed full-time, working 40 hours per week at a catering company, performing light work duties.

The Applicant stated that when he is a passenger in a vehicle, he looks behind him as he worries another vehicle may hit him from behind. He said he sometimes gets depressed, and is “stressed-out” about not being able to go to school, or continue playing sports, and he has gained some weight.

The Applicant further stated that prior to the MVA, he sustained a right ankle fracture as a result of playing basketball and this demonstrates he had an active lifestyle prior to the MVA. He did not provide the date when this fracture was sustained, other than it happened a significant amount of time prior to this MVA. The Applicant stated he occasionally experiences pain in his right ankle since the accident.

During his testimony, the Applicant stated he is not presently taking any medications other than the prescribed medical marijuana he uses 2-3 times per day to manage his back pain. He carries a medical marijuana card.

Since the MVA, the Applicant has seen his family doctor, Dr. Balkissoon, whom he stated he last saw one month ago, and he told him that he still experiences back pain. The Applicant stated that Dr. Balkissoon’s Clinical Notes and Records (“CNRs”) reference the Applicant’s anger and Dr. Balkissoon recommends an anger management assessment.⁸

The Applicant testified that he received physiotherapy, chiropractic treatment, and massage therapy from a clinic called Physiomed Leaside. He attended this clinic about twice per week up until 2013, “when the coverage stopped from the Insurer.” The Applicant testified that he also attended a clinic called Pro-Med Rehabilitation, but no CNRs from this clinic were provided for the Hearing.

There was an Insurer’s Examination (“IE”) for Psychiatric Assessment with Dr. Zielensky, dated December 12, 2011,⁹ which the Applicant attended. Dr. Zielensky referenced in his report that the Applicant was attending school at the time of the MVA. The report also noted that the Applicant was unable to return to school following the MVA, as he had no transportation and experienced back pain. Post-MVA, the back pain interfered with him being able to sit in class for prolonged periods and caused a reduction in recreational activities engaged in by the Applicant.

The Applicant stated he got involved with the wrong crowd following the MVA and was incarcerated for a period of two years. The time period of incarceration was from March 2015 to January 2017. During that period, his back pain worsened as a result of the mattress which he slept on and the lack of physical treatment available to him to alleviate his back pain.

The Applicant submitted that as a result of being incarcerated for the past two years, he was unable to attend medical assessments.

The Insurer’s Submissions

The Insurer re-submitted that the Applicant should be statutorily-barred from receiving a NEB, and from mediating and arbitrating the claim for it. In addition, the Insurer submitted that the Applicant had not provided any evidence to support that his disability has prevented him from substantially engaging in all of the activities he did prior to the MVA.

Regarding the Treatment Plans in dispute, the Insurer submitted that the injuries sustained by the Applicant in the MVA were soft-tissue injuries, and the Treatment Plans in dispute were not reasonable and necessary.

The Insurer stated that the CNRs of Dr. Balkissoon that were provided spanned from May 7, 2012 to June 4, 2013. The Applicant stated that he saw Dr. Balkissoon one week following the MVA. The Insurer asked the Applicant what complaints he reported to Dr. Balkissoon since the MVA. The Applicant stated he reported headaches, and that his knees and back hurt. The Insurer asked the Applicant if Dr. Balkissoon provided a diagnosis for these symptoms. The Applicant stated in response to this question that Dr. Balkissoon diagnosed him with lower back soft-tissue damage, and recommended physiotherapy. The Applicant stated that he did not sustain any fracture, tears, or dislocations as a result of the MVA and that he had no prior medical conditions.

The Insurer asked the Applicant if he was involved in a second MVA on November 23, 2011, as it was noted within the CNRs of Physiomed Leaside.¹⁰ The Applicant testified he was involved in the subsequent MVA.

The Insurer noted the Applicant attended treatment at Physiomed Leaside from August 5, 2011 to February 13, 2012, as noted within the CNRs provided.¹¹ The Insurer referenced an entry within these CNRs, dated November 8, 2011, which states: “pt. feels better. Less pain than before.”¹²

The Insurer referenced a medical imaging x-ray report for the Applicant, dated February 1, 2017.¹³ The x-ray report noted intermittent back pain for years, but yielded no abnormal results.

The Applicant stated he felt sad and depressed following the subject July 26, 2011 MVA. When the Applicant was asked by the Insurer if Dr. Balkissoon ever referred him to see a psychiatrist, a psychologist, or for counseling, the Applicant responded “no.” When asked if he was ever prescribed any medication for these symptoms, the Applicant stated he did not want to take medication. The Insurer noted there were no references to this contained within Dr. Balkissoon’s CNRs. The Insurer requested I draw an adverse inference as Dr. Balkissoon has not been produced as a witness and therefore he could not provide testimony regarding information contained within his CNRs, nor corroborate any evidence provided by the Applicant. I agreed with the Insurer on this point.

The only documentation produced for this Hearing reflected the dates which the Applicant attended Centennial College noted in the Canada Revenue Agency form Tuition, Education, and Textbook Amounts Certificate (T2202A.)¹⁴ It noted that the Applicant attended school from September to December 2010. However, the Applicant stated he attended school for one full school year.

The Insurer referred to correspondence from SOMA Medical Assessment Corp., dated November 2, 2011,¹⁵ which stated: “Please cancel nov [sic] 14 IE in Kingston and reschedule at a clinic in Scarborough as insd [sic] is in school at Scarborough college…” The Insurer put to the Applicant that he had previously stated he had not returned to school following the MVA. The Applicant responded that he returned to school following the MVA for a few days, but was unable to complete the program. The Applicant testified that prior to the MVA, his grades were in the “80s.” The Insurer requested I draw an adverse inference as the transcripts and records from Centennial College were not provided to corroborate the Applicant’s statement. I allowed this as no further supporting evidence was provided to support the information.

The Insurer referred to Dr. Zielensky’s Psychiatric Assessment Report.¹⁶ His IE was conducted to assess if a Treatment Plan for a psychological assessment submitted by Dr. Hann, dated July 28, 2011,¹⁷ was reasonable and necessary. The Treatment Plan was not incurred. Dr. Zielensky’s findings in his report concluded there was no psychiatric diagnosis as a result of the MVA, the Applicant’s prognosis was good, and from a psychiatric point of view, the patient had reached maximum medical improvement.¹⁸

The Insurer also relied upon the Court of Appeal decision, Heath v. Economical.¹⁹ Mr. Heath needed to demonstrate, on a balance of probabilities, that his disability prevented him from engaging in all of the activities he engaged in prior to the accident. Mr. Heath failed to demonstrate this and did not qualify for NEBs.

THE LAW

Section 32(1) of the Schedule states:

A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.

Section 36 of the Schedule states:

(1) In this section and section 37, “specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 23. O. Reg. 34/10, s. 36 (1).

(2) An applicant for a specified benefit shall submit a completed disability certificate with his or her application under section 32. O. Reg. 34/10, s. 36 (2).

(3) An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted. O. Reg. 34/10, s. 36 (3).

Section 55 of the Schedule states, in relevant part:

An insured person shall not commence a mediation proceeding under section 280 of the Act if any of the following circumstances exist:

The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation.

ANALYSIS AND DECISION

Entitlement to NEBs

As a completed OCF-3 supporting entitlement to the benefit was not provided by the Applicant within 104 weeks of this MVA, he was statutorily-barred from receiving NEBs. I find Volpe to be on point with this. But even if I found that the Applicant is not statutorily-barred from receiving payment for NEBs, I still find he has not met the criteria as stated within ss. 12(1) and (2) of the Schedule. Other than the Applicant’s testimony, he provided no evidence that supports his entitlement to receive payment for NEBs. There were no records provided from Centennial College to prove the Applicant attended past December 2010. There was no documentation filed by the Applicant which actually proves he was registered as a student at the time of the MVA. There are no records which indicate what grades the Applicant obtained at school, both before and after the MVA. There were no lay witnesses, including family members, to testify regarding the Applicant’s life prior to the MVA and following the MVA. The first entry in the CNRs from the Applicant’s family doctor, Dr. Balkissoon, was dated May 12, 2012, 10 months following the MVA. The Applicant was also involved in a second MVA on November 23, 2011. This makes it difficult to attribute the Applicant’s ongoing complaints of back pain to either the first or second MVA. There were no CNRs from the family doctor provided beyond June 4, 2013. Then there is a substantial gap in the medical CNRs since June 4, 2013. The Applicant was incarcerated from March 2015 to January 2017.

The claim for NEBs is dismissed on the basis of a lack of supporting evidence.

Two Treatment Plans in Dispute from Physiomed Leaside

Regarding the Treatment Plans in dispute in the amounts of $1,322.84 (dated December 14, 2011) and $1,899.26 (dated February 1, 2012), I find they are not reasonable and necessary. Both Treatment Plans are after the date of the second MVA of November 23, 2011, and with the evidence presented before me, I cannot anchor them to this MVA. In addition, I note that both of these Treatment Plans were unsigned by both the health practitioners and the Applicant.

This Treatment Plan was dated July 28, 2011, two days following this MVA, but the Treatment Plan was not incurred. I also note it was not signed by Dr. Hann or the Applicant. The Insurer commissioned a psychiatric IE by Dr. Zielensky, who found this Treatment Plan was not reasonable and necessary. Nothing provided by the Applicant supported that the Treatment Plan requesting a psychological assessment was reasonable and necessary, even though section 15 of the Schedule necessitates such.

All three Treatment Plans are dismissed as the Applicant has not provided any supporting evidence that the three disputed Treatment Plans were reasonable and necessary, and all three Treatment Plans were unsigned.

As all claims in dispute for this Arbitration have been dismissed, the Applicant is not entitled to any interest.

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.

July 10, 2017

Kimberly Parish Arbitrator

Date

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:

Mr. Bonito’s claim to receive a Non-Earner Benefit from January 26, 2012 to July 26, 2012 is dismissed.
Mr. Bonito’s claims to receive Medical Benefits in the amounts of $1,322.84 and $1,899.26 for physiotherapy are dismissed.
Mr. Bonito’s claim to receive the cost of a psychological assessment in the amount of $1,272.40, dated July 28, 2011, is dismissed.
As all claims for this Arbitration are dismissed, Mr. Bonito is not entitled to any interest.
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.