Neutral Citation: 2017 ONFSCDRS 274

FSCO A16-002213

BETWEEN:

M.B.

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Paulina Gueller

Heard: In person at ADR Chambers on August 16, 17 and 18, 2017 and closing submissons in writing completed by August 25, 2017

Appearances:

M.B. participated Mr. Arvin Gupta, Lawyer, and Ms. Seta Boyadjian, Lawyer, both participated for the Applicant Mr. Kevin Griffiths, Lawyer, and Mr. David Koots, Lawyer, both participated for Certas Direct Insurance Company

Issues:

The Applicant, M.B., was injured in a motor vehicle accident on October 15, 2013 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is M.B. entitled to receive a non-earner benefit of $185.00 per week from April 15, 2014 to date and ongoing?
Is M.B. entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses in respect of the Arbitration?

Result:

M.B. is not entitled to receive a non-earner benefit from April 15, 2013 to date and ongoing.
M.B. is not entitled to interest as no benefits are payable.
The Insurer is entitled to its expenses. If the parties cannot agree on the quantum of expenses of this matter, they may request an appointment before an Arbitrator in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“DRPC”).

Motions to exclude the Applicant’s documents

At the outset of the Hearing, the Insurer raised a motion to exclude the Applicant’s Brief of Documents as it was served the day before the Hearing and not at least 30 days before the Hearing in accordance with Rule 39 of the DRPC.

I invited the parties to take a break and discuss the matter privately. Upon continuation of the Hearing, the parties advised that they agreed that the Applicant would utilize the evidence provided in the Insurer’s Brief.

The Applicant then requested I allow the Disability Certificate (“OCF-3”) to be admitted. It supported the Applicant’s entitlement to non-earner benefits NEBs”) and it was not included in the Insurer’s Brief.

Considering that the parties agreed to use the Insurer’s Brief, I advised the parties that the Applicant would not be allowed to enter any evidence that is not in the Insurer’s Brief.

Motion Regarding the OCF-3

The Applicant submitted that the OCF-3 signed by Dr. Jain, dated December 8, 2015, is a critical document and even though it was not served 30 days before the Hearing, the Insurer knew of the document as it was mentioned in several documents of the Insurer’s Brief. It was sent to the Insurer’s assessors and was also listed within the doctor’s reports.

The Insurer submitted that the OCF-3 was not served in compliance with Rule 39 of the DRPC and the Applicant did not show that exceptional circumstances prevented her from serving it at least 30 days before the Hearing.

I found that the Insurer knew of the OCF-3 and the denial of the NEB was based upon this OCF-3. Therefore, I did not find that it could be a trial by ambush and there would be no prejudice to the Insurer as the Insurer had the opportunity to review the OCF-3 on many occasions prior to the Hearing. Therefore, I allowed the OCF-3 to be entered as evidence.

Motion to Exclude Witnesses

The Insurer raised a motion to exclude a witness identified only as Ms. Rabia, because no last name was provided in the Applicant’s letter dated July 12, 2017² or in the Summons to Witness form dated August 8, 2017. Two days before the Hearing, the last name of this witness was provided by the Applicant to the Insurer. The Insurer further opposed Ms. Rabia referencing her notes, as they were not previously provided to the Insurer.

The Applicant submitted that Ms. Rabia should be allowed to testify as she is a lay witness who assists the Applicant with her daily activities, and her summons included the list of documents she had to bring to the Hearing.

The DRPC sets out that the party who intends to call a witness shall properly identify the witness at least 30 days before the Hearing. The party may summons a witness up until 5 days before the Hearing, and the Summons shall include all the necessary information.

Ms. Rabia was identified only as a case worker. In addition, the Summons to Witness form did not specify any document that she ought to bring to the Hearing, and the Insurer had not been provided with the clinical notes and records. Therefore, I accepted the Insurer’s submissions and did not allow the witness to testify.

Dr. Jain, the Applicant’s family physician, and Dr. Kakar, the Applicant’s treating Psychiatrist, were both allowed to testify as lay witnesses. Therefore, they were not permitted to provide an expert opinion.

BACKGROUND

The parties agreed that the name of the Applicant will be anonymized because of the very sensitive and private nature of the information disclosed. Therefore, the Applicant is referenced as “M.B.” within this Decision.

The Applicant was involved in a motor vehicle accident (“MVA”) on October 15, 2013. She had a medical history of pre-existing depression, anxiety, Post-Traumatic Stress Disorder (“PTSD”) and chronic pain before the MVA.

The Applicant worked as an accountant for more than 20 years. In 2009, she lost her job. She had a traumatic MVA in 2011 that prevented her from re-entering the workforce.

The Applicant suffered psychiatric issues since 2002, when she was hospitalized. After an abusive and dysfunctional relationship with her husband, she finally separated in 2013. She has had conflicts with her daughters since the MVA of 2011, including one of her daughters not inviting the Applicant to her wedding.

EVIDENCE AND ANALYSIS

Witness # 1 M.B.

The Applicant testified that she is currently 60 years old. The MVA occurred as she was driving west on Davies to Yonge St. and turned left into a parking lot when her vehicle was struck by another vehicle coming from the other side. The impact caused her vehicle to spin. No ambulance attended at the scene. A tow-truck took her vehicle to the body shop. When she arrived at home, she was in pain and called an ambulance which took her to the hospital. At the hospital, x-rays were taken and she was prescribed medication for pain and sleep.

The Applicant testified that the previous MVA in 2011 caused injuries to her left arm and numbness to two fingers. This subject MVA has aggravated and intensified the pain in these areas.

She testified that before the MVA in 2011 she was a yoga instructor, but she has not been a yoga instructor since the 2011 MVA. She testified further that following the conclusion of the separation process from her husband, she moved out from the family home in December 2013. After the 2013 MVA, she started exercising in a swimming pool for a few months, but during the cold months of November and December 2013 she stopped going.

The Applicant stated that after the MVA in 2013, she no longer does the cooking because her hands shake and her fingers are numb. She testified that she may go out for dinner, order in food, or that a friend, or the case workers Rabia or Chantelle will assist with the cooking. She started to see Rabia in 2013 or 2014 following the MVA, as Dr. Hanag, a Psychotherapist from the Centre for Addiction and Mental Health (“CAMH”), applied for her to receive assistance from a case worker. CAMH currently provides support in the form of sending a case worker to her home, as she lives on her own. Rabia comes every week and motivates and helps her. Chantelle is a nurse who assists the Applicant with taking her medication and she meets with her once a week and texts her every day. The Applicant testified that she was accepted at CAMH for depression and anxiety, but did not remember whether she applied to CAMH, before or after the MVA in 2013.

The Applicant has been receiving benefits from Ontario Disability Support Program (“ODSP”) since 2012 and has been receiving assistance through Community and Home Assistance to Seniors prior to 2013.

The Applicant testified that she drives to do her grocery shopping and short errands, but does not drive long distances. She attends workshops 5 days per week for 7 hours per day. She testified she has dinner with neighbours who reside in her building.

Regarding her family situation, she testified that before the MVA she was trying to reconcile with her husband, and described their relationship as an on-off relationship. She got an apartment through ODSP in April 2013 and moved back and forth from the family home to the apartment. In December 2013 she moved out permanently from the family home.

During cross-examination, she testified that she was very healthy before the 2011 MVA. She testified that her pain had intensified following the 2013 MVA. However, she confirmed that the clinical notes and records (“CNRs”) dated May 28, 2013 from her family doctor, which stated she had, “chronic multiple joints pain, Anxiety and insomnia. Pain getting worse, states not able to walk”³ were correct.

In 2002, she was admitted into hospital for a suicide attempt. She testified that she continued to remain with her husband for the sake of the children. Her daughters started to disrespect her. She lost her job as an accountant in 2009 and after a traumatic MVA in 2011, she lost a job opportunity in February 2011 and could not re-enter the workforce. Around 2012 she applied for ODSP benefits and started to see Dr. Bakshi, a Psychiatrist.

Witness # 2 Dr. Jain

Dr. Jain has been the Applicant’s family physician since March 6, 2012. The Applicant visited him on October 22, 2013, following the MVA.

Dr. Jain testified that the Applicant’s depression became worse sometime in 2015 and he referred the Applicant to a specialist and prescribed her medication for her depression.⁴ In December 2012, after eight months of being her family doctor, Dr. Jain referred the Applicant to a Psychiatrist. His CNRs indicate that the Applicant had chronic pain, anxiety and insomnia throughout 2013. On April 9, 2013, he increased the Applicant’s medication.⁵ He testified that prior to the 2013 MVA, the Applicant could sometimes not walk and she suffered from depression and anxiety.⁶ Dr. Jain also supported the Applicant on several occasions by providing her counselling relating to the separation from her husband, and also for pain, depression and anxiety.

Dr. Jain testified that he completed the OCF-3 dated December 8, 2015⁷ based on the information provided by the Applicant but he did not know what the Applicant did the six months before the 2013 MVA and what activities she stopped doing after the MVA. He testified that he knew little information about the 2013 MVA and asked the Applicant questions while he was completing the OCF-3.

Dr. Jain testified that he sent the Applicant for an MRI as a protocol because she had vertigo.

When the Applicant comes to see him now, she cries a lot, and from observation, Dr. Jain testified that the Applicant’s pain and depression were aggravated as a result of the 2013 MVA.

Witness # 3 Dr. Ravi Kakar

Dr. Kakar, Psychiatrist, testified that the Applicant was referred to him by Dr. Jain. The Applicant attended 6 sessions between February 1 and December 1, 2016. He produced a report addressed to Dr. Jain on February 1, 2016.

Dr. Kakar testified that the Applicant experienced nightmares, flashbacks, problems with concentration and sleeping, and decreased interest in activities resulting from memories of her injuries. His report noted that on AXIS I, the Applicant has severe Major Depression, Persistent Depression Disorder, PTSD, pain associated with psychological factors, and a general medical condition.⁸

He testified that he was not aware that the Applicant was involved in a 2013 MVA and that the family issues contributed to the depression.

He testified that all the Applicant’s issues are from the MVA that occurred in 2011.

Witness # 4 Dr. Lorne Tugg

Dr. Lorne Tugg MD FRCP(C), Psychiatrist, completed an insurer’s examination (“IE”) on December 17, 2015. He testified that the Applicant had a history of pre-mental depression. In 2002, she was admitted to the hospital. After the 2011 MVA she developed depression, major depression and PTSD. She underwent different treatments and still had psychiatric diagnoses up to the 2013 MVA.

Dr. Tugg testified that the Applicant has had an ongoing conflict with her family following the 2011 MVA. She separated from her husband and her children stopped talking to her as they blamed her for the separation from their father. He stated that within her culture, women who leave a marriage are not respected.

Dr. Tugg testified the Applicant’s previous psychiatric diagnoses were the same, but they became aggravated after the 2013 MVA. His opinion is that she does not meet the criteria for the NEB because there are no substantial differences comparing pre and post-MVA activities of daily living.

Witness # 5 Dr. John Heitzner

Dr. John Heitzner, Physiatrist, completed an IE report dated January 22, 2016. He testified that the Applicant made constant reference to the 2011 MVA. His opinion was that the Applicant had “a high perceived level of disability, pain behaviour, self-restricted range of motion and inconsistency of physical examination”.⁹ He opined also that chronic pain may impede her recovery, because the Applicant still believed she was unable to recover.

He concluded that the Applicant sustained an aggravation of her pre-existing chronic pain, and that she has reached maximum medical recovery to the injuries sustained in the 2013 MVA. Also, from a musculoskeletal point of view, his opinion is that the Applicant has not suffered a complete inability to carry on a normal life as she had chronic pain prior to the 2013 MVA.¹⁰

Section 12 of the Schedule states, in relevant part:

(1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

(2) Subject to subsection (3), the amount of a non-earner benefit is $185 for each week during the period that the insured person suffers a complete inability to carry on a normal life, less the total of all other income replacement assistance, if any, for the same week.

(3) If a person qualifies for a non-earner benefit under paragraph 2 of subsection (1) and more than 104 weeks have elapsed since the onset of the disability, the amount of the non-earner benefit is $320 for each week that the insured person suffers a complete inability to carry on a normal life, less the total of all other income replacement assistance, if any, for the same week.

ANALYSIS

The test for the NEB is that a person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the MVA. On a balance of probabilities, the Applicant must prove that as a result of the MVA, she is continuously prevented from engaging in substantially all pre-MVA activities.¹¹

If the Applicant is unable to perform only a few activities, this would not amount to “substantially all” of a person’s pre-MVA activities, no matter how significant those activities may be to the Applicant.

The issue in this case is whether the MVA exacerbated the psychiatric issues, preventing M.B. from engaging in the normal life she had prior to the MVA.

The Applicant attended her family doctor regularly since 2012. There are no notes in Dr. Jain’s records about what activities the Applicant could and could not do before and after the MVA.

He testified that he completed the OCF-3 dated December 8, 2015 based on the information that the Applicant provided him at the time of its completion. In addition, his CNRs show that the Applicant has had a medical history of depression, anxiety and complaints about pain limiting her daily activities since 2012.

The Applicant also was treated by Dr. Neely Bakshi, a Psychiatrist at the Markham Stouffville Hospital. By letter dated January 4, 2013, Dr. Bakshi states:

The patient has experienced several impairments in relation to her major depression, including fatigue, suicidal ideation, psychomotor retardation, and anhedonia. This has resulted in restrictions in her functioning, including inability to attend to IADLs on a regular basis and deficits in self care. Her post-traumatic stress disorder has resulted in avoidances behaviour, emotional numbing, and disturbed sleep with nightmares. The patient avoids situations that provoke her anxiety, which mostly involves the presence of other people. These restrictions in her behaviour have resulted in continued problems in her instrumental functioning. The patient’s major depressive disorder and post-traumatic disorder have been chronic in nature and have resulted in continuous disability over the last few years…¹²

The Applicant was also treated by Dr. Jennifer Marcus, psychology student, and Dr. Helen Chagigiorgis, PhD in Psychology. The CNRs of Dr. Marcus dated April 10, 2013 state, “She had only cooked for herself once during the week because she did not feel well.”¹³

By letter dated June 30, 2015, Dr. Mohammed Khodabandehloo, Orthopedic Surgeon, states that the Applicant was involved in a MVA and injured her patella in 2011. However, there is no mention of the MVA that occurred in 2013.

Consequently, on a balance of probabilities, I am persuaded that the Applicant failed to prove that her life significantly changed because of the 2013 MVA. All the reports and testimonies, including that of her family physician and personal Psychiatrist, indicate that her normal life changed as a consequence of the 2011 MVA and was aggravated before the 2013 MVA because of her family conflicts and her separation from her husband. Only Dr. Heintzman testified that the Applicant’s previous existent chronic pain condition was aggravated by the 2013 MVA, but she did not qualify for NEB as her activities of daily living have not changed, and she was self-restricting about recovery regarding her physical impediments.

Despite the chronic pain being aggravated following the 2013 MVA, the Applicant’s activities of daily living did not change. On the contrary, the Applicant was able to attend workshops of 5 continuous days, do her grocery shopping and errands, drive, and socialize with others.

I am persuaded by the Insurer’s submissions that the Applicant’s testimony was vague, inconsistent and unreliable. In addition, she testified she applied for CAMH but did not produce the file.

Her family doctor’s CNRs and testimony show that she has been having the same symptoms since she started to see Dr. Jain in 2012. Further, her personal Psychiatrist, Dr. Kakar, testified that during the six sessions he treated her, she has never mentioned the 2013 MVA to him, and her issues are related to the 2011 MVA.

For all the above reasons, on a balance of probabilities, I find the Applicant has failed to provide medical evidence to establish a causal link that the 2013 MVA significantly changed her everyday activities. Further, I cannot conclude that this MVA impedes her from carrying on the life she had prior to the MVA. Therefore, I find M.B. does not meet the test for the NEB, and she has no entitlement to it.

EXPENSES:

The Insurer is entitled to its expenses. If the parties cannot agree on the quantum of expenses of this matter, they may request an appointment before an Arbitrator in accordance with Rules 75 to 79 of the DRPC.

October 25, 2017

Paulina Gueller Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

M.B. is not entitled to receive a non-earner benefit from April 15, 2013 to date and ongoing.
M.B. is not entitled to interest as no benefits are payable.
The Insurer is entitled to its expenses. If the parties cannot agree on the quantum of expenses of this matter, they may request an appointment before an Arbitrator in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.