Marjorie Renwick v. Wawanesa Mutual Insurance Company, 2017 ONFSCDRS 81

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 81

FSCO A13-008822

BETWEEN:

MARJORIE RENWICK

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Barry S. Arbus, Q.C.

Heard:

In person at ADR Chambers on September 26, 27, 28 & 29, 2016; November 11 & 18, 2016 and by written submissions completed on February 21, 2017

Appearances:

Mr. Ryan Naimark and Mr. Alex Nikolaev, counsel, for Ms. Marjorie Renwick

Mr. Darrell March, counsel, for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. Marjorie Renwick, was involved in a motor vehicle accident which occurred on December 17, 2011. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”) payable under the SABS.¹ The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is the Applicant entitled to receive a weekly Income Replacement Benefit, at the rate of $185.00 per week, for the period from May 2, 2016 to date and ongoing?
Is the Applicant entitled to receive a Medical Benefit for a Medical Treatment Plan with HealthMax Physiotherapy Clinics, dated June 5, 2013, in the amount of $2,972.30?

Result:

The Applicant is not entitled to receive a weekly Income Replacement Benefit, at the rate of $185.00 per week, for the period from May 2, 2016 to date and ongoing.
The Applicant is not entitled to receive a Medical Benefit for a Medical Treatment Plan with HealthMax Physiotherapy Clinics, dated June 5, 2013, in the amount of $2,972.30.

EVIDENCE AND ANALYSIS:

Background

The Applicant was involved in a motor vehicle accident on December 17, 2011, when a large truck rear-ended the Applicant’s vehicle. The Applicant experienced pain in her neck, shoulders and lower back, and attended at Humber River Hospital following the accident. She ultimately applied for statutory accident benefits from her Insurer, Wawanesa.

At the time of the motor vehicle accident, the Applicant was self-employed as an accountant at Rose’s Financial Legal Services, which was a business she owned. The Applicant had operated this business since 1992. Prior to that time, she worked in the business as an employee and took it over when her employer died. Her evidence was that prior to the motor vehicle accident, she worked between 40 and 50 hours per week, but following the accident, she returned to work only on a part-time basis, working on average 8 hours per week and relying on significant help from her daughter.

The evidence demonstrated that, starting in 2012, the Applicant received between 20 - 25 nerve block injections and an infusion every six weeks from Dr. Segal and these injections and infusions have continued up until the present time. Dr. Alan Drayton’s evidence confirmed that the Applicant has been receiving regular treatment for pain relief in between the regular nerve block injections. In addition, the evidence confirmed that the Applicant has been attending the Wasser Pain Clinic at Mount Sinai Hospital, has been taking opioids and anti-depressants and has been under the regular care of Dr. Slyfield, psychiatrist, in addition to attending the Centre for Addiction and Mental Health (CAMH) on two occasions in December 2013 and June 2016.

The Applicant’s further evidence was that following the accident, she moved her business to a significantly smaller space as she was required to downsize, which was a result of her inability to carry on her business at the same level as prior to the accident. Ultimately, in April 2016, due to her deteriorating health conditions, she closed the business completely.

The Applicant’s further evidence was that although she had a history of minor neck, back and knee pain before the accident, she never missed any time from work; but after the accident, she had the additional problem of shoulder pain and psychological issues and suffered from pain, depression, sleep disturbances and anxiety.

The Applicant’s Position

The Applicant takes the position that prior to the accident, she had a history of uncomplicated neck, back and knee pain for which she never missed any work. She did not have a history of shoulder pain or psychological issues of any kind, nor difficulty operating a motor vehicle. In addition, the Applicant had no reliance on medication of any kind, whether for pain, sleep disturbances or anxiety, nor did she receive any nerve block injections. Following the accident, the Applicant claims to have experienced immediate and significant pain in her neck, back and shoulders. The Applicant was diagnosed with chronic neck pain in April 2012, and in May of the same year, she was diagnosed with a chronic left shoulder cuff injury (frozen shoulder), and began receiving weekly cortisone nerve block injections. In March 2013, the Centre for Pain Management observed that her condition was worsening and she could not work.

In October 2014, a five-day, multi-disciplinary rebuttal assessment prepared by the Applicant concluded that the Applicant suffered from a complete inability to engage in any employment or self-employment for which she was reasonably suited by education, training or experience. Dr. Finkel, who was the psychiatrist that assessed the Applicant in October 2012, concluded that the Applicant was disabled from working from a psychiatric perspective, and concluded that she had a substantial inability to perform the essential tasks of her pre-accident employment. The Applicant’s counsel submits that both the findings of the Applicant’s psychological impairment and her physical disability led to the conclusion that the Applicant has a total inability to engage in any employment for which she is reasonably suited.

The Applicant’s counsel, relying on Crossey and Farmers’ Mutual Insurance Company² and Terry and Wawanesa Mutual Insurance Company,³ state that just because the Applicant continued to work beyond the 104-week period does not disentitle her at a later date to claim a total inability to work within the requirements of the SABS. The Applicant’s counsel also relies on Burgess and Pembridge Insurance Company,⁴ where Arbitrator Bujold stated that:

the employment must not only be reasonably suited by education, training or experience, but the insured person must be able to engage in any such employment in a competitive real world setting, taking into account employer demands for reasonable hours and productivity.

The Applicant’s counsel submits that the facts of the Applicant’s case are even stronger than the Crossey, Terry or Burgess cases.

The Applicant submits that the Treatment Plan completed by Dr. Drayton, a chiropractor, for the purpose of pain reduction to increase her strength and range of motion to return to normal life and work activities was both reasonable and necessary.

With respect to the Medical Treatment Plan from HealthMax, dated June 5, 2013, the Applicant claims that her evidence and the evidence of Dr. Segal and Dr. Drayton support that the treatment provided by Dr. Drayton provided significant pain relief between her weekly injections. The Applicant submits that the treatment provided by Dr. Drayton provided sufficient relief that enabled the Applicant to work on a part-time basis for 4½ years until May 1, 2016.

The Insurer’s Position

The Insurer takes the position that the onus clearly rests on the Applicant to establish and vindicate her claims for both Income Replacement Benefits and for the Medical Treatment Plan.

In the 2012 report of Dr. Tepperman, the doctor noted that the injuries suffered were of a moderate degree and there was no neurological impairment. In the psychological report of Dr. Saunders in April 2012, Dr. Saunders noted that there were no psychological symptoms that would prevent the Applicant’s impairments from being defined as a minor injury. In the October 2012 multi-disciplinary report prepared by the Insurer, it was noted that the Applicant could resume her previous employment, with restrictions. Dr. Finkel, the psychiatrist, noted that although the Applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment, she was working on a part-time, somewhat modified basis. Dr. Finkel noted that the Applicant was not restricted, from a psychiatric perspective, from doing work on a part-time basis.

In the vocational evaluation and transferable skills analysis performed by Ms. Elena Agostino, dated December 2, 2013, Ms. Agostino noted that the Applicant qualified for many vocational alternatives including bookkeepers, payroll clerks, banking, insurance and financial clerks. Dr. Gallimore, in his December 5, 2013 disability orthopaedic assessment report, noted that although the Applicant had an impairment from an orthopaedic standpoint, the physical tasks required to be a bookkeeper should not prevent her from being able to perform her job. He felt that she did not suffer a substantial inability to perform the essential tasks of her employment, and the jobs identified in Ms. Agostino’s transferable skills analysis would be appropriate alternatives. Dr. Resnick, in his psychiatric assessment report, dated December 9, 2013, observed that the Applicant did not suffer a complete inability as a result of the motor vehicle accident to engage in any employment for which she was reasonably suited. Dr. Resnick further notes the Applicant was capable of performing any jobs listed in the transferable skills analysis.

With respect to the Medical Treatment Plan submitted by HealthMax, the Insurer states that the onus is still on the Applicant to prove that the Treatment Plan is reasonable and necessary. The Insurer submits that in 2013, Dr. Rajwani found that the Applicant had reached maximum therapeutic benefit and the Treatment Plan would not benefit her and was not reasonable and necessary. The Insurer claims that the Applicant has not presented any evidence to contradict this conclusion.

Analysis and the Law

Income Replacement Benefit

The relevant sections of the applicable legislation are Sections 6 and 7 of the SABS, which are set out below:

(1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.
(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. O. Reg. 34/10, s. 6 (2).

(2) For the purposes of subsection (1), the weekly base amount in respect of an insured person is determined as follows:

(ii) the greater of the amount determined for the purposes of subparagraph i and $185, if the weekly income replacement benefit is for a week for which the person is entitled to receive an income replacement benefit after the first 104 weeks of disability.

(3) The insurer may deduct from the amount of an income replacement benefit payable to an insured person,

(b) 70 per cent of any income from self-employment earned by the insured person after the accident and during the period in which he or she is eligible to receive an income replacement benefit.

In this case, the Applicant has been assessed several times by numerous assessors from a functional, orthopaedic, vocational and psychological perspective. Although the Applicant has a serious, ongoing impairment, I do not feel that she has met the complete inability test. Given the Applicant’s history in working successfully in a sedentary position, and the wide range of employment options that the vocational assessor suggested are available to her by reason of her education, training and experience, I am satisfied that she has not been able to establish that she meets the complete inability test.

In examining the financial results of the business for the six-year period covering pre-accident through 2015, the Applicant’s income in any given year never exceeded $9,200. In fact, her income for the two years after the accident exceeded that of the two years before the accident. Any of the jobs suggested by Ms. Agostino would, in fact, provide a higher income to the Applicant than she was earning prior to the accident.

I am satisfied that even if the tests suggested by the Applicant’s counsel as set out in the Crossley, Terry and Burgess cases applied, then the Applicant would still be able to consistently attend and sustain a reasonable number of hours in a competitive real-world setting.

Medical Treatment Plan

It is incumbent upon the Applicant to establish that the Treatment Plan in dispute is reasonable and necessary, as is set out in Sections 15 and 16 of the SABS. The 2013 report of Dr. Rajwani found that the Applicant had reached maximum therapeutic benefit, that the Treatment Plan in dispute would not benefit her and accordingly was not reasonable and necessary. Dr. Drayton gave evidence that the Applicant started working with him in January 2012 and provided a multi-discipline therapy for her; however, he failed to establish that the Treatment Plan was reasonable and necessary and at no time challenged the evidence of Dr. Rajwani.

Conclusion

Although I have sympathy for the Applicant and the discomfort and pain that she is suffering, I am satisfied that she has failed to meet the tests required, either with respect to establishing a claim for post-104 week Income Replacement Benefits, or with respect to her claim for the Treatment Plan in question.

In summary, I find the following:

The Applicant is not entitled to receive a weekly Income Replacement Benefit, at the rate of $185.00 per week, for the period from May 2, 2016 to date and ongoing;
The Applicant is not entitled to receive a Medical Benefit for a Medical Treatment Plan with HealthMax Physiotherapy Clinics, dated June 5, 2013, in the amount of $2,972.30.

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 the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

March 20, 2017

Barry S. Arbus, Q.C.

Arbitrator

Date