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

Neutral Citation: 2018 ONFSCDRS 21

FSCO A15-009118

BETWEEN:

HUSSEIN ABU-JARADEH

Applicant

and

AVIVA CANADA INC.

Insurer

REASON FOR DECISION

Before: Arbitrator Charles Matheson

Heard: In person on November 2-3, and November 27-29, 2017

Appearances: Mr. Frank McNally and Sophia Dales, Lawyers, for Mr. Abu-Jaradeh Ms. Megan Murphy, Lawyer, for Aviva Canada Inc. Mr. David Perron, Lawyer, for Aviva Canada Inc.

Issues:

The Applicant, Mr. Hussein Abu-Jaradeh, was injured in a motor vehicle accident on August 24, 2014. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Abu-Jaradeh applied for arbitration at the Financial Services Commission of Ontario, through his representative, under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Is Mr. Abu-Jaradeh entitled to receive a weekly income replacement benefit of $400.00 commencing August 31, 2014 to date and ongoing, less any amounts already paid?

2. Is Mr. Abu-Jaradeh entitled to receive a medical benefit for the following:

a. $4,048.57 for an OCF-18 dated 15 January 2015,

b. $545.00 for an OCF-18 dated 20 January 2015?

3. Is Mr. Abu-Jaradeh entitled to payments for the cost of an examination for $1,750.18 for an in-home assessment dated January 1, 2015?

4. Is Mr. Abu-Jaradeh entitled to interest for the overdue payment of benefits?

5. Is Aviva liable to pay a special award to Mr. Abu-Jaradeh?

6. Is either party entitled to its expenses with respect to the Hearing?

Result:

1. The Applicant is entitled to receive a weekly income replacement benefit of $400.00 commencing August 31, 2014 to date and ongoing, less any amounts already paid.

2. The Applicant is not entitled to receive a medical benefit for the following:

a. $4,048.57 for an OCF-18 dated 15 January 2015,

b. $545.00 for an OCF-18 dated 20 January 2015.

3. The Applicant is not entitled to payments for the cost of an examination for $1,750.18 for an in-home assessment dated January 1, 2015.

4. The Applicant is owed interest for the overdue amounts of the income replacement benefit in accordance with the Schedule.

5. The Insurer is liable to pay a 50% special award to the Applicant.

6. Should the parties become unable to resolve expenses, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Mid-Hearing Motion

During the Hearing the Insurer moved that Dr. K. Payne be recalled as a witness. The Insurer wanted to have the doctor explain her testimony in another Aviva arbitration, and compare it to the testimony that she gave in this proceeding.

In this proceeding, the doctor testified that she was able to provide an initial assessment report without the use of extensive collateral medical documentation. The Insurer believes that the doctor’s sworn testimony in the first case conflicts with her actions in this case, and as such her credibility and her report’s credibility would be brought into disrepute.

In review of the evidence of the previous case, the doctor stated under examination-in-chief, that she was surprised that a colleague completed an Insurer’s Medical Examination (“IME”) without any collateral information, and that she would not have completed same, without more information than her colleague used.

The evidence in this case is that the doctor provided an initial assessment for an Applicant, not an IME.

In my view these two types of assessments are different in that the Applicant’s assessment is the ground level assessment, which are generally completed with little or no other professional opinions because there are none. The IME is done in order that the Insurer may obtain a second opinion. In a linear timeline the IME comes much later and after several sources of initial collateral information can be considered. In my view, there are two types of assessments and the resulting testimony and actions of Dr. Payne are consistent. I therefore dismiss the motion.

Background

The Applicant was the driver of his converted mini-van taxi when it was rear-ended while waiting at a yield sign. His vehicle moved forward from the rear impact and hit the car in front of him.

The Applicant immigrated to Canada from Jordan on a permanent basis in 2004. The Applicant was married and a father of one-year-old twin daughters at the time of the accident. The Applicant was alone in his vehicle at the time of the accident. The Applicant was self-employed as a full-time taxi driver for a company known as Airport Taxi at the time of the accident.

EVIDENCE

Applicant’s Testimony:

The Applicant testified that he had graduated from a Jordanian university with a Bachelor Degree in computer science in 2002. Other than taking some English as a Second Language (“ESL”) courses when he arrived to Canada, he has not pursued any other education prior to the accident.

In regards to employment prior to being a taxi driver, the Applicant testified he worked in various jobs including a computer repairman, a baker, a carpenter and as a pizza restaurant manager. In the manager capacity he was in charge of other employees’ hours of work, ordering supplies, and training employees on how to cook the pizza and make the toppings. As a taxi driver he worked for several companies between 2008 and 2011 until he began working for Airport Taxi. The Applicant testified that he worked 75-80 hours per week. He rented the taxi plates from its owner and had to pay all his own expenses including insurance, commission to the Taxi Company, fuel and mechanical repairs.

In regards to his taxi driving responsibilities, the Applicant testified that he modified his mini-van in order to accommodate wheel chairs. Part of his duties included lifting the chair and then securing the chair inside the van for the trip. He would also be responsible to load and unload customers’ luggage from the taxi. His work day could extend beyond 12 hours per day.

In regards to prior motor vehicle accidents, the Applicant testified that he was involved in two accidents, one in December 2008 and the second in June 2010. In regards to the 2008 accident he suffered a whiplash and a right knee injury that were resolved with some chiropractic treatments. In regards to the June 2010 accident his injuries were resolved with a combination of chiropractic treatments and physiotherapy. He missed work for several months after the 2010 accident, but all physical issues were resolved from this accident prior to his involvement in the 2014 accident.

In regards to his pre-accident health, the Applicant suffered some sinus infection issues but these issues did not interfere with his work schedule. The Applicant admitted that his right knee would act up if he was doing heavy lifting or after a heavy workout at the gym. He had surgery in 2014 to correct the sinus issue. He had no sleep issues prior to this accident nor did he have any mental health or cognitive issues.

In regards to his pre-accident activities, the Applicant testified that he would canoe, fish, socialize with friends and family, walk, ride a bike and go to the gym at various times of the day, as his work load would permit.

In regards to the actual accident, the Applicant testified that he lost consciousness or blacked out for a few minutes after the initial impact of his head hitting the headrest and then the windshield, as the next memory he had was a person talking to him through his window. The Applicant remembered feeling something like an electrical shock go down his body at the time of the initial impact. The Applicant did not go for treatment immediately after the accident, but the next day went to the hospital because he was having headaches, dizziness, and knee pain in both knees, as well as having issues with swallowing, and light sensitivities. He had a CT scan of his head at the hospital which confirmed there was no internal bleeding in the skull, and the x-rays of the back showed no broken bones. He was told that he had suffered a concussion and a whiplash. The hospital advised him not to work until he followed up with his family doctor.

The next day he followed up with his family doctor, where his doctor confirmed the hospital findings. He had concussion symptoms, he was instructed to seek physiotherapy, and not to work while concussion symptoms continued. He had complained about having issues with swallowing liquids. The Applicant testified that his physical injuries 30 days after the accident were severe headaches, very tight neck and back muscles, with some balance issues. Shaking his head to say no would cause nausea. Headaches started on the right side of his head and continued down his neck and into the shoulder.

In regards to one year post-accident, the Applicant testified that he felt that he was still suffering from the concussion, and sciatica as evidenced with an OCF-3 (Disability Certificate).² The Applicant complained about difficulties in concentration, in that it was difficult to read or comprehend what he was reading. He reported that at this time he was having issues with sleeping. It was a problem to fall asleep, and he would wake up several times per night because of the pain in his back. He suggested that anxiety was preventing him from sleeping. It was quickly becoming about not doing more but being pain free.

In regards to his first attempt to return to work in December 2014, the Applicant testified that he needed to return to work as he required money for his family as his savings were now gone, and his children required more things as they were growing. His symptoms at the time were getting better and the pain and nausea were getting less intense. The Applicant returned to work and did a Saturday, December 6 and a Sunday, December 7 shift for about 10 hours per day, on a modified basis in which he did not service any wheel chair clients. The pain proved to be too much for him and his legs would fall asleep due to extended periods of time sitting, so he discontinued this attempt to return to work.

In regards to imaging of his injuries, the Applicant testified that his doctors found “disc compression” in his mid-back (this is where the malleable material between the discs has been destroyed) and also found in his lower back a “slipped disc” which impacts the spinal cord and the sciatica nerve going down his left leg. The Applicant stated it was explained to him that his ankle issues stem from the slipped disc. Surgery was discussed as a solution but these injuries are considered permanent and surgery was not recommended by two of his doctors.

In regards to his post-accident mental and emotional health the Applicant testified that once he realized that he had physical issues that he was not going to recover from, he developed an angry outlook on life. He has a short fuse, even with his daughters, as their noise is too much for him. He resorts to putting himself in a closed, quiet and dark room. He has anxiety as he does not know what the future holds for him and his family. He explained that his depression is from his life not moving forward. He gets no or very little enjoyment out of life anymore. He maintains that these are the reasons that his marriage is in jeopardy. The Applicant expanded on his mental health issues which include his lack of concentration, word finding, getting lost in a conversation, losing or misplacing things and forgetting why he walked into a room, all of which trigger his anger or depression or both.

The Applicant testified that he was examined by Dr. K. Payne, and Dr. K. Smith as well as Dr. T. Ricci since June 2015 and continues to be treated by Dr. T. Ricci for all of his mental health issues.

In regards to his second return to work attempt in November 2015, he attempted to work for Uber as a freelance taxi driver, as he had lost the licence plate for Airport Taxi. The Applicant said he still had pain in his upper and lower back, with some headaches. The Applicant explained he had no money after being cut off from any income. He was surviving on the barest of necessities only, and he saw no other way to resolve his family’s dire situation. He forced himself to work several days per week for about 6 hours a night at the start but he could not keep up the pace. He testified he would take extra drugs for the pain and try to persevere for as long as he could. Often on bad days he would not work at all. This gave his family some monetary relief, but he could not continue driving and stopped in April 2016. The Applicant testified that his cousin sends him money each month to help support his family which in turn relieves some of his immediate financial concerns.

The Applicant testified that the total income from his Uber driving, after expenses for this six-month timeframe, was $2,800.00.³

Under cross-examination, the Applicant stated he was fluent in Arabic, and had no anxiety issues prior to the accident. He also gave a detailed breakdown of the Uber fare scheme and their records of his payments. The Applicant agreed that there are no records or details within the records he has submitted that captures where he was for a pick-up or drop-off, or what he was doing in between his fares.

In regards to his Airport Taxi employment the Applicant reiterated that he and he alone rented the licence plate for the right to drive a taxi in Ottawa, and that no one else drove his van in his off hours. He had control of his starting time for work. He stated that his duties at Airport Taxi required him to lift luggage and secure passengers and their wheel chairs to the van for safety.

The Applicant verified that he did not declare all of his gross Airport Taxi income for the purposes of his income taxes. The Applicant verified that he did not tell any assessors that he was working for or did work for Uber, and explained that he just answered their questions. He did not offer extra information, and further he was embarrassed to tell people he worked for Uber, as it was still considered illegal to do this type of work within this time frame.

Dr. Kimberly Payne’s (Neuropsychologist) Testimony

Dr. Payne testified on behalf of the Applicant, as to the validity and veracity of her neuropsychological report dated July 17, 2015.⁴ The doctor opined that she was able to complete a report based on all available information at the time of the report. The doctor opined that a person can suffer a concussion despite not losing consciousness, as an impact to the head may not cause a loss of consciousness while inducing a concussion and resulting in a brain injury. The doctor opined that is was relevant from her point of view that the hospital was querying a head injury by obtaining a CT scan for same.

After extensively explaining her battery of testing and its meaning, Dr. Payne gave a diagnostic impression in her report and stated the following:⁵

Based on the information available to me at the time of this evaluation, the following DSM-5⁶ diagnoses have been rendered:

Major Depressive Disorder, single episode, moderate severity

Post-Traumatic Stress Disorder

Somatic Symptom Disorder, with predominant pain, moderate severity

Mild Neurocognitive Disorder due to brain injury

In summary, Dr. Payne wrote⁷ and verbally supported the following:

Now, almost 1 year post accident his prognosis remains uncertain. With regards to his cognitive functioning, further spontaneous recovery could be expected over the course of the next year, but less likely in the context of his pain and emotional distress. Environmental stressors including family obligations, financial strain, and limited vocational opportunities represent further barriers to recovery.

In cross-examination, Dr. Payne verified that she did not treat the Applicant, she included all available information at the time of the assessment, she did not do any collateral interviews, and she did not author any other addendums on this report, as she did not review any information that would change her mind in her diagnosis.

Further Dr. Payne stated that she would have noted inside her report the documents she would have reviewed, and if there is no reference to any material that would infer that there were no other documents. Dr. Payne opined that in her practice about 20% of her assessments have no documents associated with the client, and that she has not experienced a situation in which she was not able to complete an assessment report, but in theory it could happen.

Dr. Payne testified that the results of her report are valid because she has several imbedded validity tests within the tests performed by the Applicant. Having said this, the doctor clarified that validity is a either a pass or fail and he passed the tests.

Finally, Dr. Payne testified that her summary was written for the benefit of the unsophisticated reader in a summary format, therefore some sophisticated details are omitted like the DSM-5 diagnoses.

Andrea Genereux (Vocational Assessor)

Ms. Genereux testified on behalf of the Applicant, as to the validity and veracity of her Vocational Evaluation Report, dated September 7, 2017. After reviewing the contents of her report and her test results Ms. Genereux also reviewed her opinion from her perspective. Her conclusions are as follows:

…based upon Mr. Abu-Jaradeh’s current medical status and medical prognosis , there are currently no occupations within the Canadian National Occupational Classification that will accommodate his limitations and permit access to employment that is comparable in status, remuneration, and reward as compared to his occupational goals and projected pre-accident occupational potential.⁸

Ms. Genereux also reviewed the various reports which led her to her conclusions and/or

verified her own test results. A sample of the reports cited by Ms. Genereux is as follows:

• Insurer’s Psychological Assessment Report, by Dr. P. Moncion, dated April 6, 2016, where she quotes the doctor’s significant findings as follows: “He [the Applicant] meets the diagnosis of DSM-5 Major Depressive Disorder-severe, Post-Traumatic Stress Disorder and Somatic Symptom Disorder with predominant pain…. Yes, Mr. Abu-Jaradeh sustained an impairment as a direct result of the MVA.”⁹

• Neurologist, Insurer’s Examination Report, by Dr. T. Mendis, dated July 28, 2016, where she quotes the doctor’s significant findings as follows: “He [the Applicant] also complains of on-going headaches consistent with persistent post traumatic headaches which are related to whiplash.”¹⁰

• Insurer’s Orthopaedic Assessment Report, by Dr. Mussett, dated September 22, 2016 where she quotes the doctor’s significant findings as follows: “He [the Applicant] does have underlying pathology as documented on his lumbar spine MRI with bilateral L5 pars defects and moderate neuroforaminal narrowing of his L5-S1 junction.”¹¹

• Speech Language Pathology Report by Ms. S. Gravel, dated June 5, 2017, where she quotes the speech pathologist’s significant findings as follows: “Cognitively, Mr. Abu-Jaradeh presented with markedly impaired immediate and delayed memory difficulties”.¹²

Under cross-examination Ms. Genereux agreed that there are no validity tests within her assessment tests, however, if the Applicant was continuously scoring 4 or 5 out of 5 then she would have requested that a qualified person re-assess the client. This did not happen in this case.

Dr. Kevin J. Smith’s (M.D., Anesthesiologist and Chronic Pain Management) Testimony

Dr. Smith testified on behalf of the Applicant, as to the validity and veracity of his Independent Chronic Pain Assessment report dated July 20, 2015,¹³ as well as his Independent Pain Medicine Re-Assessment report dated September 5, 2017.¹⁴

Dr. Smith, when describing the purpose of his assessment’s methodology, opined that:

pain is a complex condition, it’s not like a fracture which can be clearly identified on an x-ray image with a black and white method of diagnosing and assessing it. Pain requires a multi-faceted assessment of it. The pain experience is a result of a combination of biology, psychology and social circumstances, and all three areas need to be assessed to find out and identify what meaning the pain has on the client’s life.

Starting on page 15 of his report, Dr. Smith reiterated some of the diagnoses that he reached which were as follows:

• Chronic pain syndrome (mixed musculoskeletal and headache components) associated with:

o Sleep disruption

o Psychological / emotional disturbance

• Possible traumatic brain injury with features of post-concussive syndrome, to be determined

• Chronic musculoskeletal neck pain due to:

o Mechanical, probable facetogenic, pain

• Headaches

o Post-Traumatic

o Probable cervicogenic component

• Chronic musculoskeletal upper back pain due to:

o Myofascial pain

• Chronic musculoskeletal low back pain due to:

o Mechanical, probable bilateral sacroiliac joint and possible facetogenic, pain

• Chronic musculoskeletal bilateral knee pain, not yet determined.

Dr. Smith wrote his prognosis which is found on page 19 of his report, which reads as follows:

Based on the chronicity and severity of the signs and symptoms, without further assessment or treatment the prognosis for recovery to pre-accident levels of function from these diagnoses is poor.

In regards to his second re-assessment report, the doctor reviewed and summarized the various disabilities the Applicant had been diagnosed with by various doctors including a wide range of section 44 assessors, all of which verified his previous conclusions and suspicions within each of the stated medical disciplines with more detailed clarity. Dr. Smith wrote under the heading of Prognosis on page 19 of this report the following:

…the prognosis for recovery to pre-accident levels of function from these diagnosis is very poor and it is highly probable that the client will experience either continuous pain or flare-ups in pain due to the accident-related diagnoses. This client will have permanent chronic pain and associated functional impairments.

Under cross-examination Dr. Smith defended his findings in both of his reports in that Chronic Pain Syndrome is not found within the DSM-5. It is common terminology used by non-psychologists and there is an overlap of the Chronic Pain Disorder in the DSM-4; however, the doctor’s use of Syndrome in this context, is a combination of all the diagnoses.

Dr. Smith agreed that a person diagnosed with Chronic Pain Syndrome may be able to work, or raise a family.

Dr. Smith opined that the Applicant is capable of sitting, just not for long or prolonged times, and further stated that if the physical findings were different from one report to the other then there would not be a second report.

Dr. T. Ricci’s (Psychologist) Testimony

Dr. Ricci testified on behalf of the Applicant, as to the validity and veracity of her Psychological Assessment report dated June 15, 2016,¹⁵ which was generated as a result of her submission of the OCF-18¹⁶ requesting treatment. Dr. Ricci testified that both Drs. Garcia and Schmidt found that her OCF-18 was reasonable and necessary,¹⁷ as their diagnoses were the same as hers.

Dr. Ricci reiterated her findings, found on page 5 of her report which states the following:

…It is my opinion that he [the Applicant] presents with the following DSM-5 diagnoses: Adjustment disorder with anxious and depressed mood; specific phobia, situational type (vehicle-related), features; and Somatic symptom disorder, predominantly pain.

Further Dr. Ricci opines on his pain and his prognosis on page 9 of her report, which reads as follows:

In my opinion, Mr. Abu-Jaradeh presents as pain-focused. He spends much of his day trying to manage his pain. His pain is diffuse and involves a number of anatomical sites. His pain significantly limits his functioning.

In my opinion Mr. Abu-Jaradeh’s prognosis with respect to returning to pre-accident psychological levels of functioning is considered guarded at this time, given the length of time since his accident and given the chronicity of his pain symptoms and given his relative lack of psychological insight.

Dr. Ricci provided four recommendations for treatment for the Applicant, which is now being provided in part by Dr. Ricci.

Dr. Ricci was not surprised that the Applicant did not advise her that he attempted to go back to work for Uber, because clients are generally there for treatment only and are not focused on past events.

In regards to her Progress Report¹⁸ to the Insurer, dated May 2, 2017, Dr. Ricci explained the five areas of noted progress, and in summary she opined as follows:

At this time, it is my opinion that Mr. Abu-Jaradeh presents with low motivation which makes it difficult for him to apply strategies learned in session. He has difficulty following through on tasks. He lacks motivation and interest in activities and, as such, finds it difficult to practice strategies learned in sessions.

Under cross-examination Dr. Ricci opined that she and Dr. Payne had very similar clinical test results. The primary difference, the two reports being a year apart from each other, is Dr. Payne’s diagnosis of Major Depressive Disorder versus Dr. Ricci’s diagnosis Adjustment Disorder. Dr. Ricci suggested that she could have given the same diagnosis, but in her clinical experience the Adjustment Disorder was a better fit for this person.

Dr. Ricci stated that she does not have enough evidence to give an opinion on whether the Applicant can ever return to work at this point in time.

Dr. Margaret White’s (Medical Physician) Testimony

Dr. White testified on behalf of the Insurer, as to the validity and veracity of her three reports that resulted from her physical assessment on February 24, 2015. The first report¹⁹ was to opine on the reasonableness and necessity of a physiotherapy treatment plan.

The second report²⁰ was where the doctor opined on the disputed in-home assessment plan of $1,750.16. She found that this treatment plan was not reasonable or necessary.

The third report²¹ opined on a Chiropractor’s treatment plan.

Dr. White authored another report dated April 7, 2015,²² in order to opine on income replacement benefits (“IRB”), as whether the Applicant suffers a substantial inability to perform his work. She found that the Applicant “does not suffer a substantial inability to perform the essential tasks of his employment. He may have to do so with periods of rest, movement, and exercise in between.”²³

The next report Dr. White authored was dated September 18, 2015.²⁴ This report was a paper review only. The purpose of this report was to understand if added information would change her previous opinions in her April 7, 2015 report. She did not change her opinion, as the new information was outside her scope of expertise and she deferred to other health professionals such as Dr. Smith, Dr. Payne and Dr. Garcia.

The last report authored by Dr. White is dated March 10, 2016.²⁵ This was another paper review in order to understand if the new information would change her previous opinions in her past two reports. She did not change her opinion, and agreed with a Physiatrist’s opinion about the subject OCF-18.

Under cross-examination the doctor agreed that there was only one physical assessment that resulted in one report and four subsequent paper reports based on that single examination. She agreed her findings in addendum reports were based on that one assessment and how the Applicant presented on that day, combined with any new information.

In regards to the April 7, 2015 report on the Applicant’s IRB issue, Dr. White agreed she did not account for or include an Insurer’s FAE report²⁶ and/or a Work Demands report,²⁷ when arriving to her conclusions, as she only includes relevant information. The doctor agrees that these reports were not listed in her report. The doctor confirms that she believed the Applicant was in pain and required unspecified rest periods during the work day.

The doctor confirms that the hospital CT scan was because there was a concern of a head injury, and that the family doctor was concerned with the Applicant’s Chronic Pain.

The doctor confirms she did not include relevant information in her report such as the days and hours the Applicant would work in a week, nor the key tasks of his employment, including lifting and sitting, as stated in the Work Analysis report.

The doctor confirms that she did not list in her report that the Applicant’s taxi was a modified van for wheel chairs and that an essential task was to load people in and out of the van.

The doctor confirmed that she had no dispute with the conclusions on pages 6, 9 or 11 of the FAE report, but could not comment on same as it was not noted within her reports.

The doctor confirms that when she defers to another doctor that she is telling the Insurer to take another opinion into consideration, and in regards to Dr. Smith’s report she had no reason to disbelieve his conclusions.

Mr. Christopher Viveiros’ (Current Adjuster, Litigation Specialist) Testimony

Mr. Viveiros testified on behalf of the Insurer. He reviewed the general practices of the Insurer surrounding the adjusting of files such as this. This includes when to ask for an addendum report, when to request surveillance reports and the procedures the Insurer generally employs when terminating or denying a treatment plan.

Mr. Viveiros confirmed that when a doctor defers to another doctor, he would generally look for that doctor’s report.

Under cross-examination Mr. Viveiros verified that he, as an adjuster, must read a complete report and not just the conclusions, so he is able to understand the complete picture the report is providing. He further confirmed that he had continuously reviewed this file since he had been assigned it in January 2016.

Mr. Viveiros did not agree that a disability certificate or OCF-3 which impacted upon an IRB issue would necessarily trigger a section 44 Insurer’s assessment under the Schedule.

Mr. Viveiros verified that the Insurer has no control over which health assessor is assigned to a file, however it does have control over the discipline of medicine the requested assessor practices in, and what opinion questions the assessor is required to answer.

Mr. Viveiros acknowledged that he read the entire file (to the best of his ability) once he took over the file, and also acknowledged all the medical evidence of psychological issues, cognitive issues and physical issues the Applicant was suffering from since July 2015 to date including three letters from Applicant’s counsel to reinstate the IRBs. He also acknowledged that he still did not request a section 44 assessment to assess the Applicant in regards to his neuropsychological abilities or disabilities as they relate to a pre- or post-104-week IRB issue, despite his own personal opinion that the Applicant should have been “holistically” assessed in regards to Chronic Pain.

Mr. Viveiros also admitted that he was having trouble finding an assessor who could properly assess the Applicant for Chronic Pain, once he was assigned the file.

Mr. Viveiros agreed that he recalled (Insurer’s examination) Dr. Paula Moncion’s Psychology report dated April 6, 2016,²⁸ and agreed that the doctor opined that “From a psychological perspective, he is experiencing chronic pain with depression and anxiety, both severe. This is impacting all areas of functioning…”.²⁹

Mr. Viveiros acknowledged the Licensing and Appeal’s Tribunal’s March 16, 2017 decision that found the findings of Dr. Smith as factual, and he then acknowledged that he still did not assess the Applicant for an IRB.

When questioned why he did not reinstate the IRB when he took over the file, now that he had the advantage of hindsight to see the complete body of medical evidence, including the Insurer’s own assessors agreeing with the Applicant’s assessors, Mr. Viveiros continued to hold that he had the very first assessors’ reports (March 10, 2015) which said that the Applicant could return to his work which included a neurologist’s opinion.

Issues

1. Is Mr. Abu-Jaradeh entitled to receive a weekly income replacement benefit of $400.00 commencing August 31, 2014 to date and ongoing, less any amounts already paid?

The Applicant is seeking both pre- and post-104 week income replacement benefits. Neither party has raised the issue of quantum of the IRB in this Hearing.

It is an undisputed fact that the Insurer paid an IRB from the date of loss until May 1, 2015. The real question then is: should the Insurer have reinstated the benefit after May 1, 2015 and, if so, when?

The relevant pre-104-week IRB legislation is as follows:

5(1) The Insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

1. The insured person,

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

The relevant post-104-week legislation is as follows:

6. (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.

I take arbitral notice that the Applicant has the onus of proof on a balance of probabilities that he is entitled to any benefits pursuant to the Schedule. Thus the Applicant must prove that the injuries that he sustained in the accident caused: a) a substantial inability to engage in the essential tasks of his pre-accident employment within the first 104 weeks of the accident, and b) a complete inability to engage in any employment for which he is reasonably suited by way of education, training, or experience after the first 104 weeks.

Arguments for re-instatement of pre-104 IRB

The Applicant argues that the Insurer has not adduced any evidence that would contradict either Dr. Smith’s Chronic Pain Syndrome findings, or Dr. Payne’s neuropsychological findings. The Applicant argues both of these reports were being written and released less than 60 days after the Insurer terminated the IRB.

Further, the Applicant argues that, in fact, over time the Insurer has been given more evidence by Dr. Ricci and its own psychological assessors (Drs. Garcia, Schmidt, and Moncion) that ended up supporting Dr. Payne’s general and overall diagnoses of Major Depressive Disorder, single episode, moderate severity, Post-Traumatic Stress Disorder, Somatic Symptom Disorder, with predominant pain, moderate severity, and Mild Neurocognitive Disorder due to brain injury.

The Applicant argues that the Insurer has not at any time since the accident assessed the Applicant from a psychological perspective for any benefit let alone for an IRB, either pre- or post-104 week IRB.

The Applicant argues that the Insurer only relied upon Drs. White, Mendes and Ms. Dresch’s reports in order to terminate the IRB.

The Applicant argues that Dr. White only viewed him from a musculoskeletal (joint and bone) perspective and did not take into consideration any of the conclusions of Ms. Dresch’s Functional Abilities Evaluation or her Work Demands Analysis report before opining on whether the Applicant was substantially unable to perform the essential tasks of his pre-accident employment. The Applicant continues to argue that the doctor, in her paper reviews, continually deferred comments about issues outside her scope of expertise to other professionals, meaning that a red flag should have been raised to examine the Applicant by professionals within that discipline of medicine. The evidence of the adjuster shows that the Applicant was not examined by professionals within those disciplines of medicine.

In regards to Dr. Mendes, the Applicant argues that the doctor only viewed the Applicant through the lens of a neurologist and not from a whole person perspective, and again ignored the red flags presented by Dr. Mendes in that he, “deferred to the appropriate specialists regarding the myofascial injuries as the conditions described are mainly non-neurological in nature.”³⁰

The Applicant submits that the evidence shows the Insurer did not assess the Applicant with the appropriate assessors in order to properly assess the “substantial inability” test. Further, the Applicant’s assessors’ conclusions have not been proven wrong, unreliable or inconsistent.

The Insurer argues that the Applicant’s credibility is an issue, in that he agreed that he did not claim all his income to Canada Revenue Agency. His claimed income was a net $50,000.00 but his testimony was a gross of $100,000.00 and he lied to his assessors by not disclosing his attempts to return to work.

The Insurer argues that by virtue of the Applicant working part-time as an Uber driver, he showed that he had the capacity to perform the essential tasks of his employment: driving people from point A to point B for 5.5 months. The Insurer continues to argue that he had only one essential task in his pre-accident employment.

In regards to Dr. Payne the Insurer argues that her evidence should be given no or little weight. Dr. Payne provided conflicting evidence in another proceeding about what documentation was required before conducting an assessment. If her previous testimony was in fact true, she would not have been able to complete her report.

In regards to Dr. Smith’s 2015 report, the Insurer argues that the doctor agreed under cross-examination that a person with this condition may be able to maintain employment.

Decision on re-instatement of pre-104-week IRB

I am satisfied that the Applicant’s evidence is truthful and that he provided direct answers to any questions put to him in a credible manner. I am also satisfied that the Applicant’s omission of information was not an attempt to deceive, and I accept Dr. Ricci’s and the Applicant’s explanations for these omissions. I also accept the Applicant’s explanation that in this time frame, working for Uber was considered, by his friends and fellow taxi drivers, to be illegal. In this light I can see why he would not want to advertise the fact that he had to start to work for Uber.

In regards to Dr. Payne’s testimony and report, in my view, the report was contemporaneously written within a critical time frame, believable and concise. Over time almost all aspects of her report have been proven to be essentially correct. I also do not believe that the testimony she provided at another proceeding conflicted with anything she has done in this case.

In regards to Dr. Smith, I also believe him to be a credible witness, and that the Applicant suffered the identified issues within his 2015 report. I note that the 2015 report was written within the same time frame as Dr. Payne’s report. I agree with Dr. Smith that a person could maintain his employment while being diagnosed with Chronic Pain Syndrome, however, the follow-up questions were not presented as evidence. The doctor was not permitted to qualify his answer, in that, he was not able to opine on what thresholds of the frequency of the pain or the severity of the pain would be necessary for a person to continue to work. Therefore, I find it difficult to minimize Dr. Smith’s 2015 findings as the Insurer also did not follow-up on the significant findings of this report with its own experts.

In regards to Dr. White and her March 10, 2015 report, in my view, the doctor erred when she did not give enough weight to the fact that the Applicant was suffering from myofascial-type pain as described by Dr. Mendis who performed his examination on March 17, 2015, three weeks after Dr. White’s examination. Dr. White recognized the pain but essentially said the Applicant could stop working at any time and simply walk it off, when she states “He may have to do so with periods of rest, movement, and exercise in between”.³¹

Further, Dr. White in her testimony continuously compared the Applicant’s Airport Taxi job with that of an Uber driver. In my view, this is like comparing apples and oranges; both grow on trees and are fruit but they are very different. The essential tasks of these jobs are similar in nature but not the same. Dr. White did not take into account the wheel chair component of the Applicant’s Airport Taxi job nor the job requirement to load or off load luggage, the frequency and distances per trip demands, or the hours of work, when she opined that the Applicant was able to do the essential tasks of his previous employment. At this critical juncture of her report, Dr. White should have deferred an opinion as did Dr. Mendis, because they were both looking at the same joint and muscle issues. The Applicant’s problems fell outside her practice and expertise, but she did not defer an opinion. To justify her opinion on the IRB issue I have not heard any evidence that it is within the professional scope of Dr. White to opine on vocational occupations.

In regards to his income, I note that the Applicant was making beyond $50,000.00 per year, and after 6 months of Uber driving part-time, which he could not sustain, his income totalled $2,800.00 gross in almost 6 months meaning a total of $5,600.00 per year. In my view this is not a sustainable or competitive employment. In my view, these examples of trying to return to work are honest attempts to return to work, in spite of the fact that the Applicant did not disclose to his assessors that he had attempted to return to work, one or two years after he stopped working.

Therefore, in my view, upon the preponderance of all the information the Applicant is entitled to the pre-104-weekly IRB, which should have been identified in late 2015 and backdated to May 1, 2015.

Arguments for Post-104-week IRB issue

I note that this benefit would have started on or about August 24, 2016.

The Applicant relies on Drs. Payne, Smith and Ricci’s undisputed evidence of diagnosed Chronic Pain which rises to the level of Somatic Symptom Disorder, and the fact that the Insurer has not produced any evidence that contradicts any of these doctor’s opinions that the Applicant cannot or should not work from a psychological perspective.

The Applicant argues that he continues to take various prescription medications for depression and pain, since they were prescribed in 2014 and 2015.

The Applicant continues to argue that the Insurer continues to rely upon a musculoskeletal perspective of the Applicant as he was in February 2015, not from a psychological perspective as the Applicant continued to decline over time as he reacted to his Chronic Pain. The Applicant argues that the Insurer’s assessors did not take into account the vocational work demands report or the FAE report when the doctor opined on whether the Applicant could work at his pre-accident job.

I note that the Applicant points out that the Insurer has not, at any time in the past four years, assessed the Applicant for a post-104-week IRB from a psychological perspective, thus none of the assessors asked the correct assessment questions. The Insurer’s experts spoke only to the physical aspects of joint and muscle range of movement, potential only.

The Insurer argues that I should follow the Court of Appeal decision in Burtch v. Aviva,³² in that the Applicant is required to adduce strong medical evidence to make out a prima facia case for his total disability beyond 104 weeks, which in the Insurer’s opinion, he has not done. With this in mind the Insurer urges me to follow Arbitrator Mongeon in his recent decision in Doxtator and Aviva Canada,³³ in that the Applicant in that case also had a good, long work history, but was capable of adapting to changes in pressures and schedules. Notably Arbitrator Mongeon states that “it may be difficult for the claimant to find work but not impossible.”³⁴

In regards to Dr. Ricci, the Insurer argues that she has not provided an OCF-3 or an OCF-19 for the Applicant and that inaction should be assigned a negative connotation in this case. Further, while the doctor opined that a vocational assessment at this time is not appropriate, she did not provide an opinion regarding whether he meets the pre-104-week or the post-104-week test.

The Insurer argues that there are parallels in this case and that of Doxtater. In that case the Applicant was a high school graduate and on her way to an apprenticeship. In this case the evidence shows that the Applicant has a university degree in Computer Science, has worked in a bakery and has driven a taxi, and has taken some ESL courses. It is therefore difficult to believe that the Applicant has no skills or abilities whatsoever.

Further, in Doxtater, the Applicant was able to cope as a single parent while cleaning homes on a part-time basis, while in this case the Applicant was able to attend treatment, co-parent twins and drive for Uber. Therefore, I should find that the Applicant in this case would be competitive in the marketplace.

Finally the Insurer argues that Andrea Genereux failed to look at the total person when completing her transferrable skills analysis. She did not or could not opine on why the findings of her General Aptitude Test Battery (“GATB”) tests results showed the Applicant as scoring lower than expected in his verbal aptitude category. Further, the Insurer argues that Ms. Genereux did not conduct any motor coordination, finger dexterity and manual dexterity of the Applicant due to reported dominant right arm pain in Dr. Smith’s 2015 report. Therefore, I should follow Arbitrator Mongeon and give no or little weight to her incomplete report as it does not satisfy the Applicant’s post-104-week IRB claim.

Decision on Post-104-week IRB

I agree with the Insurer that I must follow the Court of Appeal’s decisions in that “it is not necessary that the insured person be formally qualified and be able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative”.³⁵ I also agree that the Applicant must adduce strong medical evidence to make out a prima facie case that he is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience, beyond 104 weeks post-accident.

It is my view, it boils down to the medical evidence, which, after the preponderance of all the complied medical evidence, which spans some 13 months beyond the 104-week mark, shows the Applicant has met the “complete inability” test.

In my view, the reports and testimony of Drs. Payne, Smith, Ricci, Garcia, Schmidt, Moncier, are consistent and they all confirm that the Applicant suffers from depression. He suffers from the type of depression that makes him incapable of motivating himself to complete the simplest of tasks, without being side tracked by his pain. The Applicant is consumed by managing his pain daily to the point of social isolation, including being estranged from his wife and children.

In my view, the fact that his treating psychologist, Dr. Ricci, does not think that a vocational assessment would be worthwhile at this point in his treatment and recovery, is significant. The Applicant is not able to perform any job related tasks with any consistency as he is also suffering from an Adjustment Disorder. He is in denial that he must adjust to his new reality let alone to what that new reality will look like. The Applicant is only motivated by what he can do to reduce his pain. Dr. Ricci opined even if it were appropriate to have a vocational assessment, she would strongly advise that some sort of volunteer work take place first, and we are in my view clearly not at this stage yet.

In my view, the Applicant’s desperate attempts to return to work in order to provide money for his family while he put his own wellbeing last on his priority list demonstrates an honest attempt to return to work, which ultimately failed to produce a competitive income.

This case is different from the Doxtater case in that the Applicant in that case did not have the significant psychological medical evidence that this Applicant has compiled, although I do not wish to downplay the physical issues Ms. Doxtater suffered as a result of her accident.

In regards to his transferrable skills, I take arbitral notice that a university degree in Jordan is not the equivalent to a degree here in Canada, and the Applicant failed to finish his ESL courses. However, if the Applicant is unable to focus and complete work like tasks, not unlike his ESL classes because of pain or depression, any transferrable skills become irrelevant, and as such I give little weight to these assessments at this time.

In regards to the Applicant’s pain, I note this is pain that is in part generated by his physical injuries as noted in his MRIs. This is not phantom pain or some other psychological manifestation; it is actual physical pain generated by prolonged sitting or bending, which cannot be ignored.

Therefore, for the reasons above, the Applicant is entitled to receive a weekly income replacement benefit of $400.00 commencing August 31, 2014 to date and ongoing, less any amounts already paid.

2. Is Mr. Abu-Jaradeh entitled to receive a medical benefit for the following:

a. $4,048.57 for an OCF-18 dated 15 January 2015,

b. $545.00 for an OCF-18 dated 20 January 2015?

Section 15 of the Schedule applies to medical benefits and reads, in part, as follows:

15. (1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

The parties agree that the test for a treatment plan is its reasonableness and necessity at the time the plan was submitted to the Insurer.

In regards to the chiropractic treatment plan, the Applicant argues that because the Applicant was receiving some benefit from ongoing chiropractic treatment this disputed $545.00 plan should have been funded by the Insurer.

In regards to the physiotherapy treatment plan of $4,048.57, the Applicant argues that because the Applicant continued to pay out of pocket for physiotherapy after the Insurer denied this plan and now continues to enjoy the funding of later approved physiotherapy plans, then by extension this treatment plan must have also been both reasonable and necessary.

The Insurer argues that the Applicant has not provided sufficient evidence that the treatment plans are both reasonable and necessary. The Insurer argues that neither of the treatment plan authors testified to the reasonableness and necessity of each plan, therefore I should give little or no weight to the self-serving evidence from the Applicant.

Decision

I agree with the Insurer that I have not heard enough evidence that would suggest that at the time of the treatment plan’s submission, there was enough merit to a reasonableness or necessity to either of these plans. I note that said plans are some 6 months prior to Dr. Smith’s and Dr. Payne’s reports. I am unable to justify these two plans just because after the passage of time, and the apparent decline of the Applicant, I can somehow link these plans to plans now approved by the Insurer.

Therefore, for the above reasons, the Applicant is not entitled to receive a medical benefit for the following:

a. $4,048.57 for an OCF-18 dated 15 January 2015,

b. $545.00 for an OCF-18 dated 20 January 2015.

3. Is Mr. Abu-Jaradeh entitled to payments for the cost of an examination for $1,750.18 for an in-home assessment dated January 1, 2015?

Arguments

The Applicant argues again that by virtue of having much later in-home occupational therapy being approved by the Insurer, then by extension the denied plan must be deemed reasonable and necessary.

The Insurer again argues that the Applicant has not provided sufficient evidence that the treatment plan is both reasonable and necessary. The Insurer argues that the treatment plan’s author did not testify as to the reasonableness and necessity of the plan, therefore I should give little or no weight to the self-serving evidence from the Applicant.

Decision

I agree with the Insurer. I am unable to look years backward to justify a treatment plan that does not have any nexus to medical evidence at the time the Insurer made its decision as to the reasonableness and necessity of the disputed plan.

Therefore for the above reasons, I find the Applicant is not entitled to payments for the cost of an examination for $1,750.18 for an in-home assessment dated January 1, 2015.

4. Is Mr. Abu-Jaradeh entitled to interest for the overdue payment of benefits?

In light of my previous decisions of entitlement to the income replacement benefits, I find that the Applicant is owed interest for the overdue amounts of the IRB in accordance with the Schedule.

5. Is Aviva liable to pay a special award to Mr. Abu-Jaradeh?

The enabling legislation at the time of the accident is s. 282(10) of the Insurance Act R.S.O 1990, which reads as follows:

Special award

(10) If the arbitrator finds that an Insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

In my view, pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, where an insurer has unreasonably withheld or delayed payments, an Arbitrator can, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 1 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Applicant is seeking a maximum amount or 50% special award.

The Applicant relies, in part on Sinnapu and Economical Mutual Insurance Company³⁶. The Applicant argues that this case confirms that an insurer has a duty to weigh all available medical evidence and other information in making its decision, and cannot abdicate its decision-making responsibilities to its hired examiners. Further, the Applicant argues that this case also confirms that “the criteria for punitive damages, that is willful and deliberate misconduct or bad faith, goes considerably beyond the Insurance Act standard of simple unreasonableness.”

The Applicant also relies, in part, on Cowans and Motors Insurance Corporation³⁷. The Applicant argues that this case supports the proposition that “intent” is not necessary in order to find an unreasonable delay or withholding of benefits and, as such, there does not need to be a requirement of an independent actionable wrong to provide the foundation for a special award, and that accident benefit insurers owe a “duty of good faith” to an insured person that is not as high as a trustee, but, is nonetheless “significant”. The Applicant continues to argue, among other things, that this case also confirms that a special award is to “punish” insurers that unreasonably fail to pay accident benefits promptly, as required by the “Schedule”, and to “deter” that company and others from acting similarly in the future, and that it is the Arbitrator’s discretion to assign quantum to a special award when the Arbitrator takes into account the principles of “rationality and proportionality”.

The Applicant argues that despite overwhelming evidence that the Applicant could not work in any capacity, the Insurer continued to deny IRBs to this day. The Insurer has displayed its own unwillingness to appreciate its own evidence, which has noted that the Applicant’s psychological and cognitive impairments have cost the Applicant significant mental distress, as well as income, for the past two and a half years.

The Applicant demonstrates the Insurer’s stubbornness, inflexibility and imprudent behaviour to include its inactions in regards to the three letters dated June 15, 2015, July 26, 2015 and December 17, 2015.

The June 15, 2015 letter was after Dr. Mendis’ s. 44 Neurology report which found the Applicant suffering from cognition issues arising as a result of a possible brain injury, and where he defers for opinion to the appropriate specialists regarding the Applicant’s myofascial and cognitive issues.

The July 26, 2015 letter noted the Insurer’s delay in assessing if his injuries were outside the Minor Injury Guidelines and to reinstate the IRB.

The December 17, 2015 letter asked that the Applicant’s IRB be reinstated after Dr. White now deferred to Dr. Smith for comment on a Chronic Pain perspective. The letter pointed out that Dr. Smith opined that the Applicant met the post-104-week test.

The Applicant argues that not only did the Insurer not defer to its own assessors, the Insurer did not respond to three disability certificates in support of the Applicant’s eligibility for both non-earner benefits and the more stringent “complete inability to carry on a normal life” test and IRBs.

The Applicant argues that the Insurer continued to display the type of behaviour consistent with a special award when it ignored its own s. 44 psychological assessment in regards to the Minor Injury Guidelines. Conclusions rendered by Drs. Garcia and Schmidt clearly found the same psychological issues as did Dr. Payne earlier and agreed that the Applicant should be removed from the Minor Injury Guidelines. The Applicant argues that the Insurer did not take the holistic approach to the Applicant now that it knew he had psychological and cognitive issues.

The Insurer’s adjuster agreed in cross-examination that he did not at any time assess the Applicant psychologically in regards to his IRB claim. To the last of his testimony he maintained that Dr. White and Dr. Mendis’ original reports along with some un-evidenced surveillance supported terminating the Applicant’s IRBs.

The Insurer argues that the Applicant is not credible and his word cannot be trusted therefore his testimony should be given little or no weight. He lied when he did not claim all his income to Revenue Canada, and he lied by omission when he did not tell his assessors about working for Uber.

In the event that the Applicant is found to have entitlement, the Insurer should not be held to the standard of perfection.

The Insurer argues that there was no evidence that the Insurer ignored Applicant counsel’s letters or the added OCF-3s, and there is nothing in the Schedule that demands communications to either the Applicant or Applicant’s counsel when the Insurer receives said letters or added unrequested disability certificates.

Decision

I note a significant amount of time elapsed (approximately 12 months) between the submission of Dr. Ricci’s first OCF-18 and the treatment being approved and commencing.

I note that the Applicant evidenced his recent Licence Appeal Tribunal³⁸ (“LAT”) decision which found that his proposed treatment plan for pain management through occupational therapy for $3,358.14 dated January 21, 2016 was deemed reasonable and necessary. In doing so, the adjudicator made the factual finding that the Applicant had both physical and psychological impairments.

I also note that the Insurer, as the sophisticated party, had known about the specific case law decisions, as mentioned above, and what they stood for, for the past six or more years.

In my view, the adjuster’s answers to questions in cross-examination were purposely vague and misleading, however, the adjuster stated that he read all medical reports completely, and understood them. He did not simply skip over the report and read the answers to the questions at the back of the reports.

I agree with the Insurer, that the Insurer is not to be held to a standard of perfection; however, in light of the medical evidence, the adjuster’s testimony, and the recent LAT decision it is clear in my view that a special award is warranted.

In my view, the Insurer should have pieced together the evidence that the Applicant was suffering from more than soft tissue injuries and that there were significant psychological issues. The Insurer should have realized this as late as September 2015, yet the Insurer allowed the Applicant and his family to simply wither on the vine.

When the Insurer was forced to remove the Applicant from the Minor Injury Guidelines by virtue of its own s. 44 report because of psychological and cognitive issues, the IRB issue, as identified in numerous letters from Applicant counsel, should have triggered a re-assessment via s. 44 at a minimum. It did not. I note that there is no evidence that the Insurer turned its mind to the IRB issue after any of the letters or even after the release of the LAT decision in March 2017.

I find it incredible that after all the Applicant’s medical information continued to accumulate, the Insurer continued to rely on Drs. White and Mendis’ reports which viewed him through a physical perspective, only.

In regards to rationality and proportionality, I find that there is a strong resemblance to this case and that of Sinnapu. However, in this case nobody brought an application for interim IRB benefits and the damages to the Applicant and his family are compounded to the level where a special award should be found to be in the range comparable to Cowans, especially in light of the recent LAT award.

In my view, there is a need to not only punish the Insurer for its actions in this case, but also to provide a strong deterrence for others not to do the same. The case law is well established and yet this Insurer continued acting inconsistently as regards their obligations to an Applicant.

For the above reasons, I find that the Insurer is liable to pay a 50% special award to the Applicant.

6. Expenses:

Neither party made submissions on expenses. Should the parties become unable to resolve this issue, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 29, 2018

Charles Matheson Arbitrator

Date

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

Neutral Citation: 2018 ONFSCDRS 21

FSCO A15-009118

BETWEEN:

HUSSEIN ABU-JARADEH

Applicant

and

AVIVA CANADA INC.

Insurer

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:

1. The Applicant is entitled to receive a weekly income replacement benefit of $400.00 commencing August 31, 2014 to date and ongoing, less any amounts already paid.

2. The Applicant is not entitled to receive a medical benefit for the following:

a. $4,048.57 for an OCF-18 dated 15 January 2015,

b. $545.00 for an OCF-18 dated 20 January 2015.

3. The Applicant is not entitled to payments for the cost of an examination for $1,750.18 for an in-home assessment dated January 1, 2015.

4. The Applicant is owed interest for the overdue amounts of the IRB in accordance with the Schedule.

5. The Insurer is liable to pay a 50% special award to the Applicant.

6. Should the parties become unable to resolve expenses, they shall subsequently schedule an Expense Hearing before me in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 29, 2018

Charles Matheson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Dr. Bourggonza, Chiropractor, OCF-3, dated September 15, 2014.
3. 3Exhibit 14 and 15, Revenue Canada Tax Returns.
4. 4Exhibit 25.
5. 5The Ottawa Psychological Group, Psychological and Neuropsychological Assessment Report, dated July 17, 2015, pg. 10 of 12.
6. 6American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.
7. 7Ibid., page 11 of 12.
8. 8Independent Vocational Evaluation Report, dated September 7, 2017, pg. 5 of 32.
9. 9Ibid, under Disability, pg. 14 of 32, as reported in Exhibit 45.
10. 10Ibid., pg. 15 of 32.
11. 11Ibid., pg. 15 of 32.
12. 12Ibid., pg. 16 of 32.
13. 13Exhibit 21.
14. 14Exhibit 27.
15. 15Exhibit 11, Tab 18A, pg. 948-957.
16. 16OCF-18 dated June 10, 2015, $1,995.32.
17. 17Exhibit 30, Insurer’s Examination Psychologist Assessment, dated August 12, 2015.
18. 18Tab 18b, Exhibit 31.
19. 19Exhibit 36.
20. 20Exhibit 37.
21. 21Exhibit 38.
22. 22Exhibit 35.
23. 23Ibid., pg. 9 of 11.
24. 24Exhibit 39.
25. 25Exhibit 40.
26. 26Exhibit 42, Functional Abilities Evaluation, dated April 7, 2015.
27. 27Exhibit 41, Work Demands Analysis, dated April 7, 2015.
28. 28Exhibit 45.
29. 29Ibid., pg. 7 of 11.
30. 30Neurology Assessment, Dr. Tilak Mendis, dated April 7, 2015, pg. 7 of 10.
31. 31Ibid., pg. 9 of 11.
32. 32Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479.
33. 33Doxtater and Aviva Insurance Company of Canada, (FSCO A16-002361, November 17, 2017).
34. 34Ibid., pg. 15.
35. 35Ibid., paragraph 24.
36. 36Sinnapu and Economical Mutual Insurance Company, (FSCO Appeal, P11-00012, November 1, 2011).
37. 37Cowans and Motors Insurance Corporation, (FSCO A09-003237, October 15, 2010)
38. 38H.A.J and Aviva Insurance Canada, LAT 16-001418/AABS, March 16, 2017.