Neil Condison v. TD General Insurance Company, 2017 ONFSCDRS 262

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

Neutral Citation: 2017 ONFSCDRS 262

FSCO A15-000521

BETWEEN:

NEIL CONDISON

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Lynda Tanaka

Heard:

In person at ADR Chambers on June 27, 28 and 30 and July 5, 6 and 7, 2017

Appearances:

The Applicant, Neil Condison, participated

Mr. Richard Levy and Mr. Robert Jones,¹ counsel for Mr. Neil Condison

Ms. Jennifer Beresford and Mr. Michael Vrantsidis,² counsel for TD General Insurance Company

Issues:

The Applicant, Mr. Neil Condison, was injured in a motor vehicle accident on August 1, 2013 and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.³ The parties were unable to resolve their disputes through mediation, and the Applicant, 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 the Applicant entitled to income replacement benefits for the period August 8, 2013 to date at the rate of $368.15 per week?
Is the Applicant entitled to medical benefits for various therapies provided by Gibson Wellness Centre (“Gibson”) claimed as follows: a) an OCF-18 dated August 30, 2013 in the amount of $3,087.28; b) an OCF-23 dated September 30, 2013 in the amount of $990.00, being the unapproved balance of the total of $2,200.00; and c) an OCF-18 dated December 6, 2013 in the amount of $2,966.60?
Is the Applicant entitled to the cost of an x-ray as claimed in the OCF-18 submitted by Gibson Wellness Centre dated February 25, 2014 in the amount of $760.00?
Is the Applicant entitled to interest for the periods of unpaid benefits?
Is the Applicant entitled to his expenses for the arbitration?
Is the Applicant entitled to his expenses incurred during the period between the date of the Application for Arbitration and the payment of the outstanding claims for benefits, other than those claimed in issue 2 and 3?
Is TD entitled to its expenses for the arbitration?

The parties have resolved a number of the issues that were included in the Application for Arbitration filed. As the case has progressed, it appears that there are certain barriers to recovery of the benefits that the Applicant wishes to have addressed through conditional orders. He wishes to have an order as to the entitlement to and calculation of his income replacement benefit conditional on his refiling his 2013 tax return to report the income that he received prior to the accident which he says was inadvertently omitted due to the lack of a T4 from the employer. He also seeks a declaration that the medical benefits claimed above are reasonable and necessary but that TD’s obligation to pay is conditional on a future determination of whether or not the Applicant was catastrophically injured. TD opposes both conditional orders.

Result:

The Applicant is entitled to income replacement benefits for the period of August 8, 2013 to October 30, 2013 at the rate of $281.31 per week.
The Applicant is not entitled to the medical benefits claimed as follows: a) an OCF-18 dated August 30, 2013 in the amount of $3,087.28; b) an OCF-23 dated September 30, 2013 in the amount of $990.00, being the unapproved balance of the total of $2,200.00; and c) an OCF-18 dated December 6, 2013 in the amount of $2,966.60.
The Applicant is not entitled to the cost of examination for an x-ray claimed in the amount of $760.00.
The Applicant is entitled to interest on unpaid benefits, including income replacement benefits and any medical benefits that TD agreed to pay after the Pre-Hearing conference in this matter prior to the Hearing. If the parties have any difficulties with the calculation of interest in accordance with my findings, they may ask for a reattendance to deal with the issue.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, any party requesting expenses shall file with me and with the opposing party written submissions setting out the request for expense and any supporting material within 30 days of the issuance of this decision. The opposing party shall file with me and with the party requesting expenses its responding submissions within 15 days of receipt of the request for expenses. The party requesting expenses shall file with me and the opposing party its reply material within 10 days of receipt of the responding material. I will determine the entitlement and quantum of expenses in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“DRPC”).

EVIDENCE AND ANALYSIS:

Background

The following witnesses testified:

The Applicant;
Dr. Julian Chen, M.D., Chronic Pain Specialist;
Ms. Alexandra Paolini, Occupational Therapist;
Mr. Frank Martino, Rehabilitation Counsellor;
Dr. Alborz Oshidari, M.D., Physiatrist; and
Dr. Gordon Arbess, the Applicant’s Family Doctor.

The Applicant was injured in the morning of August 1, 2013 when an SUV pulled in front of him and stopped suddenly. The Applicant, who was driving his 1991 Honda Civic, rear-ended the SUV. He testified that the Honda damages were estimated at greater than $5,000 and the Honda was not repaired. While the photographs⁴ show damage to the front of the Applicant’s vehicle, the records indicate that the airbags did not deploy.

The Applicant testified that, on the day of the accident, he experienced soreness in his neck and the left side of his body, particularly the mid and lower back, and that his hips were sore.

The Applicant contacted his family doctor’s office on the day of the accident and the doctor’s clinical notes and records indicate that the Applicant had been in a motor vehicle accident and was going to the Emergency Department.⁵ He went to the Rouge Valley Hospital later that day. He testified that it was very busy in the emergency department and that he only saw a nurse who sent him home. The hospital records⁶ show he was seen by a doctor shortly after 6:00 p.m. and he was complaining of neck pain. He was diagnosed with whiplash and neck strain. He was prescribed a muscle relaxant and pain reliever. The Applicant first saw Dr. Arbess, his family doctor, concerning the accident on August 27, 2013⁷ by which time he was being treated by Gibson Wellness Centre (“Gibson”) with chiropractic, massage, TENS and acupuncture treatment.⁸

Claims and Medical History and Assessment since the Accident

The Applicant submitted an OCF-1,⁹ and OCF-2¹⁰ and OCF-3¹¹ to TD to support his claims for income replacement benefits and medical and rehabilitation benefits. He has continued to have chiropractic, massage, and other treatment at Gibson since August 2013 to date. Gibson filed the OCF-24 Minor Injury Treatment Discharge Report dated October 17, 2013¹² on November 1, 2013 (resubmitted November 13, 2017) and OCF-18s for treatment outside the Minor Injury Guideline (“MIG”)¹³ were filed thereafter.

TD took the position supported by chiropractic reports obtained under independent examination that the Applicant suffered a minor injury within the meaning of the MIG. TD relied on the assessment of Dr. Derek Lefebvre, D.C. who provided a letter and chiropractic report dated January 31, 2014,¹⁴ and an Addendum Report¹⁵ dealing with whether or not the Applicant’s injuries fell within the MIG.

After the accident, Dr. Arbess referred the Applicant for considerable medical imaging, some of which identified deterioration in his back and neck joints. In December 2013, Dr. Arbess ordered an x-ray of the Applicant’s lumbar spine and the opinion rendered by the radiologist was “Generalized change of degenerative disc disease with no osteoarthritis in the facet joints, spondylolysis or spondylolisthesis”.¹⁶ In February 2014, the Applicant was off work because of back and neck pain and, as a result, a cervical/lumbar stress study was conducted in February 2014 by Ontario Research Medical Group. The preliminary results report identified spinal instability in the cervical x-rays and a “Complex blend of spinal instability with pre-existing condition and/or other structural inclusions”. The report also noted “degenerative arthropathy and pre-existing pathology” with “Severe DDD L5-S1 also present”.¹⁷

An MRI of the Lumbar Spine was also done in March 2014 at St. Michael’s Hospital and the report to Dr. Arbess found no central canal stenosis except in L4-L5 where it is described as “mild”. The report’s findings are “Multilevel degenerative changes involving the lumbar discs and inferior lumbar facet joints. Mild central canal stenosis at the L4-5 level.”¹⁸

In the fall of 2014 the Applicant was off work with neck pain which he described to his employer as a pinched nerve in his neck. An x-ray of the cervical spine was conducted on October 24, 2014 at the request of Dr. Arbess and the impression (given by the same radiologist who had done the December 2013 x-ray of the Applicant’s lumbar spine) was cervical spondylosis¹⁹.

An MRI of the cervical spine was done on December 8, 2014²⁰ and the report was mild spinal stenosis C3-4, mild to moderate spinal stenosis C4-5 with severe left neural foramen narrowing and moderate to severe right side neural foramen narrowing as well as in C5-6, left side. At C6-7 there was mild spinal stenosis. Of most importance was a report of possible minimal left C7 radiculopathy.²¹

The Applicant was seen by Dr. Michael Sawa in the Neurophysiology lab of St. Michael’s Hospital on March 10, 2015 for an evaluation for a possible left cervical radiculopathy.²² The Applicant reported to Dr. Sawa that he experienced neck pain immediately after the accident and about one to two months later the neck pain began to radiate down the left arm and was associated with paresthesia involving the entire left hand. The symptoms persisted for several months but were intermittent in nature. He reported his left arm was weaker slightly when pushing doors open. He reported steady improvement in the last six to eight months (from March 2015) and that his arm was now strong. He had no pins and needles sensation in the hand and the pain had improved.²³ Dr. Sawa’s opinion was that the nerve conduction studies revealed some non-specific changes “which may represent the minimal manifestations to a left C7 radiculopathy”. The opinion continued as follows:

Overall we suspect [the Applicant] has a nearly resolved mild left C7 radiculopathy. Given his improving symptoms and overall neurological status, we would recommend conservative treatment at this time.²⁴

Future surgery was contemplated in the event “things worsen in the future” but no follow up appointment was arranged with Dr. Sawa.

The Applicant testified that he did return to his desk job after the accident as an account executive selling telecom services, but he was only able to work about 10 hours in total due to the pain from his injuries. He has tried to work at other jobs and has had great difficulty because of the pain in his back and neck. More recently, he has numbness and tingling in his left hand and his hip has caused him considerable discomfort. He testified that his work required him to travel to visit clients at their places of business and this was very difficult for him, given the traffic in the GTA. Even trips within the GTA could be one hour or more, one way, and he has difficulty sitting for that length of time. He also expressed difficulties with commuting to work via transit or by a long car ride.

The Applicant testified that he continues to experience pain in his neck, left arm and back, and one year after the accident, he developed tinnitus and numbing and tingling in his left arm, all of which he attributes to the accident injuries. He started complaining of the hip pain in 2015. Dr. Arbess’ clinical notes and records disclose that he complained to his doctor in 2012 about back pain, but that the symptoms resolved by June 2013 and the OCF-18s filed to obtain treatment approval indicate no pre-existing condition that would affect his response to treatment for the injuries identified.²⁵ Prior to the accident, there is no record of neck pain, or tingling or numbness in his left arm or hand, or of tinnitus or migraines, or of the hip pain. The Applicant attributes them all to the accident.

Dr. Arbess’ clinical notes and records indicate visits concerning the motor vehicle accident on August 27, September 17 and December 10, 2013, the period during which the Applicant was no longer at his pre-accident employment and he began his employment at another employer. There were other visits to Dr. Arbess’ office in that time period to deal with chronic conditions for which the Applicant was being monitored and for other issues. The Applicant is recorded as doing physiotherapy and improving with no tingling, numbness or decreased sensation.²⁶ At Gibson where he was receiving regular treatment, the notes for the visits in 2013 are just about illegible and I was unable to discern any notation of clear progress.²⁷ He was reassessed by Gibson in November 2014 and the notes indicated that the “pain and numbness is reducing day by day – feeling much better than before…every day activities are okay now, tenderness is almost nil”.²⁸

The Applicant underwent a Psychological Assessment for Treatment Planning conducted on February 26, 2016 and a report dated March 25, 2016 was provided by Dr. Arunkumar Thankappan Pillai, Ph.D. C. Psych.²⁹

Dr. Pillai interviewed and assessed the Applicant two and half years after the accident. He concluded that the Applicant’s presentation was consistent with features of an Adjustment Disorder with Depressed Mood. He recommended cognitive behavioural psychotherapy of 8 sessions to address his adjustment disorder, mild depression and pain symptoms. The Applicant testified that he was receiving therapy at Gibson.

The Applicant was referred to a chronic pain specialist in 2017 because of the ongoing pain and resistance to treatment, despite receiving extensive treatment under accident benefits. The chronic pain specialist, Dr. Chen, testified with respect to his report³⁰ and his opinion that the Applicant suffers from chronic pain as a result of the accident. Dr. Chen is properly qualified and credentialed as a practitioner for chronic pain medicine/addiction in Canada and the USA. He is also certified as an American Medical Association – Evaluation of Permanent Impairment. He was retained to determine the nature of the injury leading to the chronic pain condition, to determine the impact of the condition, and to provide a plan that may help improve the Applicant’s functioning level and/or condition.

Dr. Chen’s opinion was that the Applicant suffers from chronic pain. In his testimony, he was clear that the degeneration he observed in the imaging of the neck vertebrae was consistent with a prolonged period of degeneration and that the Applicant’s symptoms are consistent with the result of the accident trauma on the neck, thereby bringing on the pain symptoms in the neck and the tingling and numbness in the left arm. Dr. Chen concluded that the Applicant’s pain condition is moderate to severe, complicated by depression and poor sleep, as a direct consequence of the accident.

Dr. Chen recommended a sleep clinic, psychologist/psychiatrist support, rehabilitation, and job modification/functional assessment.

Dr. Arbess testified that it is not unusual to have patients whose imaging indicates degenerative conditions but the patients are asymptomatic and, conversely, to have patients with symptoms of pain where imaging shows nothing consistent with those symptoms. He described it as putting together pieces of the puzzle. He also testified that, in the early months after the accident, he was concerned that the symptoms the Applicant complained of could also be attributed to a pre-existing chronic medical condition that he has been treating the Applicant for since 2008 or could be a side effect of the medication taken by the Applicant with regard to that chronic medical condition.

Dr. Arbess also referred the Applicant to an Ear Nose and Throat Specialist who conducted auditory tests with respect to his tinnitus. Surgery was discussed with the Applicant, arranged and then cancelled at the Applicant’s request.³¹ No direct causal link between the tinnitus and the accident was established in the evidence.

In addition to the 2017 chronic pain assessment by Dr. Chen, the Applicant was assessed by an orthopedic surgeon, Dr. Chih-Peng Chang, MD, MPH, FRCSC, who produced an Orthopedic Assessment Report dated March 1, 2017.³² Dr. Chang also concluded that the Applicant suffered chronic pain. Dr. Chang concluded that the Applicant had a possible whiplash injury that had aggravated prior cervical spondylosis. He attributed the neck pain, left shoulder pain, and pain and numbness down to his left hand to left C7 radiculopathy. He identified cervical nerve root impingement that might be the cause of the shoulder pain. Dr. Chang was not able to confirm the causal relationship between the neck bulge and the accident. He identified possible mechanical neck and back pain as well, and recommended further imaging and referral to a pain specialist and neurologist or neurosurgeon. He also recommended ongoing psychiatric management for a possible adjustment disorder or depression, together with continuing physical therapy treatments such as he had been receiving at Gibson.

TD obtained a Multidisciplinary Report dated August 29, 2014 concerning the income replacement benefits claim, which included a Physiatry Assessment by Dr. Alborz Oshidari, M.D., F.R.C.P.C., Physiatrist, a Job Site Analysis by Dawn Rynberk, Registered Kinesiologist, and a WorkWell Functional Capacity Evaluation by Dr. Karen Hudes, Chiropractor, and Dawn Rynberk.³³ On the basis of the conclusions of this Multidisciplinary Report, TD discontinued the Applicant’s income replacement benefits.

Dr. Oshidari testified at the Hearing. In his July 26, 2014 Physiatry Assessment, which formed part of the Multidisciplinary Report referred to above, Dr. Oshidari expressed the opinion that the Applicant showed functional range of motion of the spine with normal neurological finding. He saw no specific neuromuscular structural abnormality and advised TD that the Applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. His examination did not reveal any cervicolumbar radiculopathy or cervical myelopathy.³⁴ He reviewed the WorkWell Functional Capacity Evaluation of the chiropractor, Dr. Karen Hudes, after his own assessment of the Applicant, and her conclusions did not change his opinion. Dr. Hudes and Ms. Rynberk concluded that there were no functional limitations with respect to the Applicant performing the physical demands of his pre-accident employment.³⁵

Dr. Oshidari also assessed the Applicant on September 30, 2015, over two years after the accident, and issued a report dated October 9, 2015.³⁶ Dr. Oshidari confirmed his earlier observation that he did not detect any sign of active radiculopathy in the cervical and lumbar spine but the documentation he had received suggested pre-existent advanced degenerative changes in the cervical and lumbar spine with multilevel neural foraminal narrowing at some spinal stenosis in the lumbar spine. He advised that the pre-existent medical condition took the Applicant outside the MIG, being a condition which would prevent him from achieving maximal recovery from the minor injury if he is subject to the $3500.00 limit. The Applicant indicated that, despite two years of extensive treatment, the pain did not get better and got worse with change of weather. Based on that history, and despite his finding that the Applicant was not subject to the MIG, Dr. Oshidari did not find the OCF-18 treatment plan for continued physical treatment was reasonably necessary.³⁷

Dr. Oshidari provided an Addendum report in which he recorded a review of findings of a Neurology Ambulatory Consult Report by Dr. M. Sawa and Dr. M. Atia dated February 18, 2015.³⁸ This report had identified non-specific changes “which may represent the minimal manifestations to a left C7 radiculopathy.”³⁹ After referencing this conclusion, Dr. Oshidari concluded that the report was in keeping with his impairment rating provided for the cervical spine for the possible C7 radiculopathy and that his opinion in his direct assessment report remained unchanged.⁴⁰

An Independent In-Home Assessment dated June 18, 2016⁴¹ was prepared by Phyllis R. Belle, RN, on retainer by TD. The purpose was to determine if there was an accident related physiological functional impairment affecting a return to housekeeping, home maintenance and personal care. The report was done over 2 years after the accident. Ms. Belle identified impairment of the Applicant’s functional strength and range of motion, all of which limited his abilities to perform his personal care and housekeeping activities to the level he was accustomed to prior to the accident. She determined that he needed assistance with meal preparation, bathroom cleaning, vacuuming, laundry, garbage removal and maintenance. The assistance was recommended due to his impaired ability to push, pull, lift, carry, stoop and crouch, reduced range of motion in the lumbar area, and decreased strength in his left arm and hands. Ms. Belle also identified attendant care needs, specifically “cleans tub/shower/sink/toilet after applicant’s use”, “applicant requires assistance in co-ordinating/scheduling attendant care”, “assisting the applicant with prescribed exercise/training program”, and preparing the TENS equipment and administering the treatment.⁴² There is no claim for attendant care in this arbitration but the physical limitations identified are of assistance in isolating the functions that were impaired for the purpose of assessing the benefit claims in this matter.

An OCF-19 was completed by Dr. Arbess on behalf of the Applicant⁴³ in the spring of 2016 and submitted to TD claiming that the Applicant suffered catastrophic impairment. As a result, TD arranged to have the Applicant assessed to determine if he had a catastrophic impairment. The assessment was conducted by Dr. Oshidari.⁴⁴ The issue of whether or not the Applicant is catastrophically impaired is not an issue in this arbitration so the use of the reports generated by the assessment is limited to obtaining more information about the ability of the Applicant to function in his work for the purpose of the income replacement benefits. The conclusion of the various studies undertaken was that the Applicant was not catastrophically impaired.

Dr. Oshidari also completed a physiatry assessment of the Applicant for the purposes of responding to the catastrophic impairment claim.⁴⁵ In his report dated October 21, 2016, Dr. Oshidari documented complaints from the Applicant which noted neck pain, middle and low back pain, sleep disturbance, and tinnitus. Dr. Oshidari indicated in his report that it was possible that shortly after the accident there was C7 radiculopathy but his September 2015 assessment indicated no abnormalities to indicate the ongoing presence of a radiculopathy. Dr. Oshidari’s opinion was that the Applicant had not sustained a catastrophic impairment from a neuromusculoskeletal perspective.⁴⁶

Issue 1: Is the Applicant entitled to income replacement benefits for the period August 8, 2013 to date and ongoing at the rate of $368.15 per week?

Income replacement benefits (“IRBs”) are recoverable under Part II of the Schedule. To obtain IRBs under the Schedule, the Applicant must establish that in the first 104 weeks after the accident he suffered from a substantial inability to perform the essential tasks of his employment. For any IRBs after 104 weeks, the Applicant must establish that he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. The calculation of the amount of the benefit is dependent on the amount of income reported to the Canada Revenue Agency (“CRA”) in the tax return filed by the Applicant and cannot exceed $400.00 per week. The 104-week period ended July 31, 2015.

Under s. 11 of the Schedule, an insured’s entitlement to IRBs is not affected by his returning to or starting employment at any time during the first 104 weeks if, as a result of the accident, the insured is unable to continue with that employment.

The Applicant is claiming IRBs for the period for which they have already been paid (August 8 2013 to September 27, 2014) and for four additional periods: September 27, 2014 to December 15, 2014; February 10, 2015 to February 22, 2015; June 22, 2015 to December 15, 2015; and from January 1, 2016 to date and ongoing. He acknowledges that TD should be credited with $5,919.20, being 70% of the employment income he received at his job in 2015. For the claim for the period after August 1, 2015, the Applicant must meet the complete inability test set out above.

TD’s position is that the claim should be denied on several grounds. The Applicant failed to report his income to the CRA properly and consistently with his claim for benefits.⁴⁷ Also, the claim for the benefits was based on a designation of the income from the four weeks prior to the accident and the claim as now presented is based on the 52 weeks prior to the accident, an option he did not choose. Nor did he approach TD to change this designation and it is too late to do so during the arbitration Hearing. Further, the evidence does not establish what the income was in the period August 1, 2012 to August 1, 2013. TD also relies on other inconsistencies in the evidence and also on the inconsistencies in the self-reporting of the Applicant’s history and pain.

The Applicant testified that he has about two years of college education in a business diploma course. He has worked for most, if not all, of his career in computer technology. The OCF-2, Employer’s Confirmation Form,⁴⁸ identifies his position at the date of the accident as “Account Executive” with E Mobile Tel (“E Mobile”), his job description as “Sales of Telecom Services 9 am to 5 pm”, and the task of the job as “sitting at desk calling clients by phone and email”. Exhibit 1 indicates he commenced work on June 7, 2013 and he stopped work on August 7, 2013. There is further confirmation of this employment in a letter dated June 28, 2016 from the Former Director of Operations, E Mobile,⁴⁹ which indicates a start date of June 10, 2013 and an end date of “between August 20-22, 2013 – I do not have the exact date.” Since Exhibit 1 was prepared by the Applicant’s superior contemporaneously with his stopping work, I accept the dates in the OCF-2 as correctly reflecting the dates worked.

In the Application for Accident Benefits,⁵⁰ the Applicant (in Part 8 Income Replacement Determination) identified two employers, E Mobile, and also a company called Verb Exchange. He reported that he was employed by Verb Exchange in Corporate Sales at a rate of 40 hours per week from November 1, 2003 to August 1, 2013. His application for IRBs is based on his being prevented from working as a result of the injuries suffered in the accident as of August 1, 2013. He indicated that he earned $35,000 in the period from June 1, 2013 to the date of the form (August 22, 2013) from E Mobile Tel and $50,000 during the almost 10 years he worked for Verb Exchange.

In the OCF-2 completed by Gibson, the Applicant claims that he was substantially unable to perform the essential tasks of his employment as a result of and within 104 weeks of the accident and that he cannot return to work on modified hours or duties. Gibson also indicates on the form that the Applicant did not have any disease, condition or injury that affected his ability to perform his job. The injuries suffered in the accident are identified as:

sprain and strain of the lumbar spine,
dislocation, sprain, and strain of joints and ligaments of lumbar spine and pelvis,
other sprain and strain of cervical spine,
muscle strain, shoulder region and
headache⁵¹.

TD agreed to pay income replacement benefits but they did not, however, start until March 29, 2014 at a rate of $368.15 per week.⁵² TD had responded to the filing of the OCF-1 and OCF-2 on September 19, 2013⁵³ that it could not determine the eligibility for IRBs because of the lack of an OCF-3.⁵⁴ It appears that the OCF-3 which was faxed out to it in late September either did not reach it or was lost, as TD requested a copy of it on March 14, 2014 and received it on March 17, 2014.⁵⁵ A lump sum payment of the benefit in the amount of $12,254.14 was calculated by TD and based on a gross annual income of $27,348.36. The payment covered the period August 8, 2013 to March 28, 2014 when the bi-weekly benefit payments started. At TD’s request, a further OCF-3 dated June 20, 2014 was also submitted by Gibson indicating that the Applicant was still substantially unable to perform the essential tasks of his employment as a result of and within 104 weeks of the accident and that he cannot return to work on modified hours and/or duties.

Exhibit 50 contains the Applicant’s tax returns for 2012 to 2016. He declared no taxable income in 2016. The Applicant’s tax return for 2012 indicated that he earned a taxable income of $29,556 with T4s submitted from five different companies. The 2013 tax return was not filed until May 17, 2017. He declared a 2013 taxable income of $20,210.00 with T4s from 3482286 Canada Inc. (one of his employers from 2012), and from Jatheon Technologies Inc. His 2014 and 2015 tax returns were filed at the same time as the 2013 return. He declared taxable income of $21,139.85 for 2014 from employment by Jatheon Technologies Inc. and TeraGo Networks Inc. (“TeraGo”). He declared $32,542.28 in taxable income in 2015 for employment income from Around the Clock Staffing Solutions Inc., Ayming Canada Inc., TeraGo and other income from SunLife Assurance Company of Canada (“SunLife”) under a wage-loss replacement plan. None of the tax returns refer to the companies listed on the OCF-3 dated in August 2013. His highest earning year of the years for which tax returns were provided was in 2015 although $14,221.18 was attributed to the SunLife wage loss replacement plan. There is no evidence to support the earnings level declared in the OCF-2.

Also, the Applicant disclosed to the vocational counsellor at Rehabilitation Networks Canada Inc. in the course of a Transferable Skills Analysis⁵⁶ that he had been employed in 2013 between January and May by TruAct Corporation as a Sales Executive/Account Manager for a base salary of $70,000 per year plus commissions.⁵⁷ He told Mr. Martino that he left the company when it closed down. No such company is listed in either his 2012 or 2013 tax returns and no income at the level he reported to Mr. Martino is reported on his tax return for either year, or even something that represented 5 months at that base salary level.

The Applicant blamed his failure to file tax returns on the pain he has suffered since the accident. He acknowledged that he had not included in his declared income for 2013 the income from E- Mobile which had been the basis in the OCF-2 for the claim for IRBs. He undertook to file an amended return for 2013 if a conditional order were made for IRBs calculated on that basis.

The OCF-2 filed by the Applicant claimed IRBs because of his inability to return to work at E Mobile, a company where he had worked since June 2013. He chose to have his benefits determined on the basis of the four weeks prior to the accident and claimed that he made $607.14 in each of weeks 1 and 2 and $718.22 in each of weeks 3 and 4.

Commencing in February 2014, the Applicant worked at TeraGo but stopped work on May 19, 2014 due to disability caused by a pinched nerve confirmed in an MRI in the fall of 2014 which he has blamed on the accident.⁵⁸ He applied in December 2014 for disability benefits through TeraGo’s provider Manulife but the benefits were denied because the application was filed more than 180 days after he stopped work due to the disability. There are indications in the file that in December 2014 he did return to work but then stopped work in February 2015.⁵⁹ When he applied for short-term disability benefits in 2015 to SunLife (TeraGo’s new provider), he denied that he was eligible to receive accident benefits and he failed to inform SunLife of his ongoing claim for IRBs as a result of the accident.⁶⁰ He failed to inform TD of benefits payable under the group benefit plan at SunLife.

The TeraGo file⁶¹ discloses that the Applicant took leaves of absence in May of 2014 when he was absent more than 10 days and put on suspended pay and required to apply for short-term disability. In June 2014, he failed to return to work despite a doctor’s note confirming return to work and he provided no documentation to support the excuse of Dengue Fever or any other reason why he could not return to work. In August 2014, Dr. Arbess provided a letter indicating that the Applicant had been off work since May 23, 2014 and would return in mid-September. Further notes were provided by Dr. Arbess postponing the return to work date to December 15, 2014. He took another leave of absence in February 2015 and applied for short-term disability benefits from SunLife.

The Applicant testified that he has not worked since the winter of 2015 when he went on short-term disability benefits from SunLife for which he was eligible under his employment by TeraGo. The employment records that have been produced, including emails informing the Applicant that he has been terminated or his employment ended by mutual agreement, indicate a lack of responsiveness by the Applicant to the requirements of his employers. The Arbess CNRs do not reflect the ever changing landscape of the Applicant’s employment over the years, though Dr. Arbess testified that he would usually note when an employment situation changed and he did complete forms for the Applicant to obtain short-term disability benefits as well as an application for long-term disability benefits.

The evidence of income provided by the Applicant is inconsistent and unconvincing for these reasons. There is conflicting evidence as to when he left his E Mobile employment but it is no later than August 22, 2013 and could be as early as August 1 or August 7, and he told TD that he could not return to E Mobile because the company had closed when in fact it had only moved.

Second, contrary to his assertions in his claim that the accident prevented him from working, he secured other employment within three months of the accident, work of essentially the same kind - sedentary office work - as he did prior to the accident.

Third, the Applicant has failed to meet his obligation to provide the details of his income and work experience. When asked for details of his work experience on the stand, he testified only in vague generalities, being unable to recall start and finish dates, income information, or specifics of the job requirements. The information on his tax return for 2012 provides T4 slips for two companies, neither of which was disclosed to the occupational experts retained to support his claim for IRBs. There are five different employers disclosed on the 2013 T1 but he did not disclose on his CRA filing, the sixth job, the one at E Mobile which was the basis for his IRB claim. In neither 2012 nor 2013 did he earn more than $30,000 per year but the information he gave to the occupational experts was that he was making $50,000 to $70,000 per year. He also presented himself as employed by companies in the period of 2005 forward for periods of some years but the information on those companies was not disclosed where appropriate with respect to the accident benefit claims. The information he gave in evidence and to his Insurer and to the experts was inconsistent, incomplete and not persuasive.

Finally, the Applicant obtained and kept IRBs even though he was employed full-time or receiving collateral benefits. The Applicant was paid IRBs in a lump sum for the period since the accident in August 2013 to March 2014 and those benefits continued on a bi-weekly basis until the fall of 2014. As can be seen in the table below, he was employed for substantial portions of that period or was entitled to or obtaining short-term disability benefits.

Period Employer

October 31, 2013 to January 9, 2014⁶² Jatheon Technologies Inc.

2013 – dates unknown 3482286 Canada Inc.

February 28, 2014⁶³ and continuing to April 7, 2017⁶⁴ TeraGo Networks Inc.⁶⁵

2015 February 23, 2015 to June 21, 2015 SunLife Assurance Company of Canada

2015 – dates unknown Ayming Canada Inc.⁶⁶

2015 – dates unknown Around the Clock Staffing⁶⁷ Solutions Inc.

The Applicant has not disclosed all his income for 2013 to the CRA. He requests an order that, if he does so, then his IRBs will be paid at a higher rate than if he did not correct his filing. This position was revealed on the last day of this Hearing. I have no jurisdiction to make such a conditional order. Nor do I believe that this is an appropriate request. The Applicant has an obligation in law to report all his income to CRA and if, whether inadvertently or otherwise, he finds later he has not done so, he must correct that failing. This obligation exists separate and apart from any claim under the Schedule. It would be much more convincing if, having found the missed income at any point during the Hearing preparation, the filing had already been corrected or a commitment was given to make the correction by a specific date. Further, as was made clear in Uribe and Wawanesa Mutual Insurance Company,⁶⁸ CRA reserves its right to reassess so that an insurer could be faced with an amended income several years after the fact, even if the arbitrator’s conclusion, based on what was then the assessed income, was correct.

In determining whether or not the Applicant is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, it is important to consider his abilities and skills. The Applicant reported to Mr. Martino that he is very technologically advanced with an advanced level of proficiency in all Microsoft Office Applications and that he had used various software applications throughout his employment. He uses a smart phone with a high level of proficiency.⁶⁹

With respect to the first 104 weeks after the accident, the Applicant’s family doctor as well as the treatment providers at Gibson were of the view that he was substantially unable to fulfil the essential tasks of his employment but the evidence is that he, in fact, did work in that period. He testified that in the period after the accident when he was receiving no benefits from TD he went through his savings and had to work. The records indicate that he was able to obtain employment on October 31, 2013 at a higher income level than he had been paid at E Mobile.

As noted above, TD obtained a multidisciplinary assessment dealing with the IRBs claim in the fall of 2014 (including the assessment of Dr. Oshidari, a physiatrist). Based on that report, the IRBs were terminated. No subsequent independent assessment was done as to whether or not the Applicant was at any time after that point within the 104 weeks substantially unable to fulfil the essential tasks of his employment, nor with respect to whether he has had or has now a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. When Dr. Arbess was asked the question directly, he responded that the Applicant is disabled because of the accident.

Nonetheless, I have ample evidence of the history of the Applicant’s condition through the Arbess CNRs, the Gibson Clinical Notes and Records, the Manulife and SunLife files referred to above, and the various medical and other reports that have been provided. As is usually the case, the Applicant has had good days and bad days. There are records of his sharing with his family doctor and others that his injuries have recovered by 50% or more at various points in the history. As he functions now, he has limited ability to sit for long periods, as was shown during his testimony, and, according to the latest functional analysis, his main difficulty with his upper body is reaching with his left arm.

To determine whether or not the Applicant’s impairments satisfy the requirements of entitlement to IRBs, it is important to review the reports done relevant to work, including the 2014 Job Site Analysis and Work Well Functional Capacity Evaluation,⁷⁰ obtained on retainer of TD, and the 2017 Functional Abilities Evaluation Report,⁷¹ the Transferable Skills Analysis Report⁷² and the Vocational Evaluation Report⁷³ obtained on behalf of the Applicant.

The 2014 Job Site Analysis was conducted by Dawn Rynberk, a registered Kinesiologist, July 23, 2014, almost one year after the accident, to obtain information regarding the essential job demands of an Account Executive/Inside Sales Rep with E Mobile, the Applicant’s employer at the time of the accident. The company had moved to a different office but the information was obtained from the same individual who had completed the OCF-2 describing the Applicant’s employment shortly after the accident. The Applicant worked in a cubicle setting with a desk, computer and telephone, fully adjustable chair and access to headsets to speak on the phone. The Applicant was permitted to get up and move around from his desk as needed. All the work was done at the desk. The work required use of a keyboard tray and mouse. Physical demands, sensory and environmental demands and psychosocial demands were rated on a scale of 1 to 4 with 1 being the lowest.

Ms. Rynberk also contributed to the Work Well Functional Capacity Evaluation Report dated August 29, 2014⁷⁴ with a chiropractor, Dr. Karen Hudes. The assessors reviewed questionnaires completed by the Applicant and interpreted the results as follows:

The Applicant perceived himself to have a crippled level of disability due to back pain and to have a moderate level of disability due to neck pain.
The Applicant reported that he did not have a joint problem such as a hip problem that could be made worse by a change in physical activity.

They also concluded that there were no functional limitations with respect to the Applicant performing the physical demands of his pre-accident employment.

With respect to the 2017 analyses conducted by Rehabilitation Network Canada Inc., both authors, Alexandra Paolini and Frank Martino, testified. Ms. Paolini conducted the Functional Abilities Evaluation to measure demonstrated functioning and to objectively determine whether the results are indicative of the Applicant’s true functional abilities. Ms. Paolini recommended a Vocational Evaluation, as well as an In-Home Assessment.

Mr. Martino generated two reports, the Vocational Evaluation Report (“VER”) and the Transferable Skills Analysis Report (“TSAR”). The conclusion of the TSAR was, however, that there were no employment matches identified through use of the software for occupational titles to determine exact or “best fit” matches based on his aptitude profile obtained through evaluation of his work history and review of his education as well as physical limitations.

Mr. Martino concluded that the Applicant would not experience difficulties in learning new skills and/or information and that he would likely adapt well to changes in work duties and would not require repetition in learning new skills.⁷⁵

I can give little weight to the conclusions of Mr. Martino, though he is clearly a very experienced rehabilitation counsellor. He admitted under cross-examination that the work history he had obtained from the Applicant did not match the positions that had been identified in the employment history revealed in the tax filings for the period 2012 to 2016. Also, the computer search to generate the exact or best fit matches was based on a range of income, all of which were income levels beyond what the Applicant had reported on his tax returns. Mr. Martino admitted that the adjustment of income level would affect the outcome of the job search, and he would not guess at what the outcome might be of a computer based search that included the other positions that were evidenced by the tax returns or by corrected income assumptions. Also, there is a discrepancy between the reports of the general aptitude ratings in the two reports though they appear to rely on the same tests.

Finally, Mr. Martino’s analysis is based on the conclusions of Ms. Paolini as to the Applicant’s physical limitations and I prefer the evidence of Dr. Oshidari, Dr. Hudes and Ms. Rynberk as to the extent of the impairments suffered by the Applicant. The functional analysis done by Ms. Belle did not indicate functional limitations in a sedentary job. Even if the physical ailments of the Applicant have worsened in the four years between the accident and the May 2017 assessment, the Applicant has not established on the balance of probabilities that the accident has materially impacted on those impairments or caused them. Dr. Chang was unable to make the causal link in his 2017 report as noted above.

Dr. Arbess testified that the Applicant is disabled because of his injuries; he did not specify whether the Applicant was totally or partially disabled, temporarily or permanently, and his CNRs contain references in which he notes that he has urged the Applicant to return to the gym and to work. He did not say the Applicant was completely unable to work. Even when given the opportunity in the CPP Disability Claim application, Dr. Arbess included no information as to how the Applicant’s conditions interfered with his functioning. His OCF-19 form in which he certified that the Applicant is 55% impaired under the Whole Person Impairment categories under the AMA IV Guides is not credible, given that he acknowledged no training in completing this form.

It is clear that the Applicant has experienced pain and impairments over the years since the accident and I accept the medical evidence that he has chronic pain. The functions that are interfered with, however, are best captured in the activities of housekeeping and not in the functions he is required to perform in his work. While he has, over the years, given his job history in inconsistent terms, there appears to be no dispute that his job has been sedentary in nature and that, with assistive devices and accommodation, he could resume sedentary work. He appears to be an intelligent man and his inability to provide consistent and detailed information on his employment history is not credible.

I am not satisfied that the analyses done by Ms. Paolini and Mr. Martino are well founded. Given Mr. Martino’s acknowledgements of the underlying assumptions of the analysis and the lack of support for those assumptions in the evidence, I do not accept that these reports truly capture the potential employment for this individual.

I am not convinced that there are no jobs to which he is reasonably suited that can accommodate his impairments, with his years of experience in computer software and sales. Nor am I satisfied that the extent of his disability is such that he is not trainable to acquire substantive knowledge or skills within a reasonable time. I find the evidence provided by the Applicant exaggerates his difficulties. He bears the onus of proving that he falls within the legislative requirements and I find that the Applicant has not led sufficient evidence to convince me that his impairments meet the requirements of the Schedule to support an IRB beyond a limited period.

In summary, I find that, in accordance with the Schedule, the Applicant did not lose his entitlement to IRBs by virtue of his attempt to return to work at E Mobile for 10 hours after the accident. I find that he suffered a substantial inability to perform the essential tasks of his employment from the date of the accident to his return to work on October 31, 2013 when he commenced employment with Jatheon. I find that I do not have sufficient evidence to establish on the balance of probabilities that he continued thereafter to suffer a substantial inability to perform the essential tasks of his employment after October 31, 2013 or, if he was, that the inability was due to his injuries suffered in the accident.

With respect to the quantum of the weekly benefit, TD is correct that the Applicant has not filed the usual proof of pay stubs for any period other than the E Mobile employment and that that employment cannot form the basis of the benefit because it is not income declared for tax purposes. The Applicant’s counsel provided a calculation of the weekly benefit based on one-half of the 2012 income declared and one-half of the 2013 income declared and arrived at a weekly figure of $281.31. I have found that the Applicant is entitled to this benefit and therefore order the benefit payable in that amount. I agree with the Applicant that TD calculated its payment of the benefit based on 52 weeks and the fact that the Applicant did not should not bar his recovery.

I find that the Applicant has not met the onus of establishing that after July 31, 2015 he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. I find that the reports that were obtained to support the case were not founded on assumptions that could generate credible outcomes to support the case.

Issue 2: Is the Applicant entitled to Medical Benefits for various therapies provided by Gibson Wellness Centre claimed as follows: a) an OCF-18 dated August 30, 2013 in the amount of $3,087.28; b) an OCF-23 dated September 30, 2013 in the amount of $990.00, being the unapproved balance of the total of $2,200.00; and c) an OCF-18 dated December 6, 2013 in the amount of $2,966.60?

Issue 3: Is the Applicant entitled to the cost of an x-ray as claimed in the OCF-18 submitted by Gibson Wellness dated February 25, 2014 in the amount of $760.00

As a result of the Physiatry Assessment of October 9, 2015 conducted by Dr. Oshidari (and referred to above), TD agreed that the Applicant had a pre-existing condition related to his cervical spine that took him outside the MIG on October 29, 2015⁷⁶ and TD agreed to pay the Gibson invoices up to the maximum of $50,000 under the policy. In a letter dated March 28, 2015,⁷⁷ TD notified the Applicant that it had paid invoices for treatment provided in the period February 17 to September 10, 2014 together with a partial payment of an invoice for service February 2 to March 6, 2015.⁷⁸ TD informed the Applicant that invoices were denied for services provided from February 2 to March 6, 2015 and December 6, 2013 to January 10, 2014. In the letter marked Exhibit 34, TD took the position that it had approved treatment plans totalling $50,000, the maximum under the policy, and had already paid $44,451.80. The parties agree that the Applicant has continued to get treatment from Gibson since then⁷⁹ and I conclude that, since the treatment plans were approved, TD has now paid the full $50,000.

The case law⁸⁰ is clear that I cannot award medical benefits in advance of the determination of the catastrophic claim and therefore I refuse to do so.

In addition, with respect to Issue 3, the reasonableness and necessity of the x-ray imaging and interpretation proposed in the OCF-18 dated February 25, 2014 have not been established. As outlined earlier, there has been considerable x-ray and MRI imaging conducted as ordered by the Applicant’s family doctor. The Applicant bears the onus of establishing the reasonableness and necessity of other imaging and he has not done so.

Whether or not any of the balance of the claims for medical benefits is recoverable as reasonably necessary is moot, given that the Applicant has had $50,000 paid to his treatment providers for treatment.

Issue 4: Is the Applicant entitled to interest for the periods set out below on unpaid benefits?

The Applicant is claiming interest for periods in which he says that TD delayed or withheld payment of benefits. I have found that the Applicant was entitled to IRBs and he did not receive them until March 28, 2014. There is no explanation given for the delay from September 27, 2013 when the OCF-3 was submitted and the payment on March 28, 2014 of a lump sum for the amounts calculated by TD. Interest is payable for that period.

In addition, the Applicant is claiming interest on medical benefits that previously formed part of the dispute and were paid after the Pre-Hearing. TD did not approve the OCF-18s for payment outside of the MIG until Dr. Oshidari’s report of October 2015. There is no explanation as to why there was not an earlier assessment, when the imaging was clearly forwarded to TD throughout 2014 together with Dr. Arbess’ opinion. The Preliminary Screening for Spinal Instability,⁸¹ which identified issues of pre-existing pathology and degeneration, was forwarded to TD on March 28, 2014. TD had Dr. Oshidari’s opinion given in the summer of 2014. The opinion noted the Applicant did not meet the requirements for IRBs but not with respect to the MIG. TD relied on the opinion of a chiropractor with respect to the MIG. But the December 8, 2014 MRI report identifies the C7 radiculopathy. The Applicant also produced a later assessment which identified manifestations to a left C7 radiculopathy in a Neurology Ambulatory Consult Report and Electromyography Report of Dr. Sawa⁸². Interest should run on the denied OCF-18s starting on the earlier date that the Applicant provided TD a copy of Dr. Sawa’s Report and October 9, 2015 (the date of Dr. A. Oshidari’s report that the Applicant should come out of the MIG) and ending on the date of payment of the medical benefits in excess of $3,500.

There was a clear indication, confirmed by Dr. Oshidari, that there was a pre-existing condition that had possibly caused radiculopathy and was consistent with the complaints that were documented by the Applicant’s family doctor.

Counsel for the Applicant also revealed that TD had agreed to pay some medical benefits after the Pre-Hearing but without a total settlement of all the claims. Therefore interest should run on those amounts as well. If there is any difficulty in determining the interest, I may be spoken to for a further appointment to provide clarification.

EXPENSES:

The Applicant’s counsel requested an order that the Applicant recover his expenses of the process by which TD agreed to pay the IRBs and later take the Applicant out of the MIG. These expenses can be dealt with in the context of the overall expenses of the arbitration.

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, any party requesting expenses shall file with me and with the opposing party written submissions setting out the request for expense and any supporting material within 30 days of the issuance of this decision. The opposing party shall file with me and with the party requesting expenses its responding submissions within 15 days of receipt of the request for expenses. The party requesting expenses shall file with me and the opposing party its reply material within 10 days of receipt of the responding material. I will determine the entitlement and quantum of expenses in accordance with Rules 75 to 79 of the DRPC.

October 12, 2017

Lynda Tanaka Arbitrator

Date