minicounsel

Footnotes

The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
(1999) 1999 CanLII 9303 (ON CA), 46 O.R. (3d) 309.
RSO 1990, c. E.23
Page 305 of Binder A.
Original pagination.
Pages 302 and 303 of Binder A.
Page 8 of Binder A.
I note that August 12, 2015 is a Wednesday and August 27 (a Thursday) is a period of precisely two weeks and 1 day whereas 3 weeks might imply a longer period.
Page 300 of Binder A.
Page 64 of Binder A.
Page 266 of Binder C.
Page 147 of Binder D.
Page 146 of Binder D.
Page 165 of Binder D.
Pages 302 and 303 of Binder A.
Page 77 of Binder C.
I note that the Applicant has also, as a part of her Multi-Disciplinary Assessment, provided a comprehensive and detailed summary of the Applicant’s medical history: Page 98 et seq., Binder A.
Tab 13 of Binder A.
Tab 23 of Binder A.
Page 37 of the report.
Page 47.
Page v of the report.
Tab 11 of Binder C.
Page 139 of Binder C.
Page 156 of Binder C.
Page 161 of Binder C.
Page 174 of Binder C.
Page 202 of Binder C.
Page 227 of Binder C.
Page 234 of Binder C.
Page 216 of Binder C.
Page 239 of Binder C.
Page 296 of Binder A.
RSC, 1985, c.1 (5th Supp.)
Page 55 of Binder A.
FSCO A11-001160, Arbitrator Bujold, June 6, 2014.
Page 106 of Binder A.
Page 108 of Binder A.
Page 323 of Binder A.
Question 4, Page 323 of Binder A.
Page 136 of Binder C.
Supra note 25.
Page 348 of Binder A.
Page 202 of Binder C.
Available online at: http://noc.esdc.gc.ca/English/CH/Welcome.aspx?ver=06&ch=03.
See: http://noc.esdc.gc.ca/English/CH/CareerHandbookPurpose.aspx?ver=06&sub=0&ch=03.
See: http://noc.esdc.gc.ca/English/CH/AptitudesEnglish.aspx?ver=06&sub=0&ch=03.
Page 335 of Binder A.
Page 58 of Binder A.
Document J.

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 93

FSCO A16-004343

BETWEEN:

RISTA ALMEDOM

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Marcel D. Mongeon, Arbitrator

Heard:

At ADR Chambers on February 7, 8, 9, 26 and March 1 and 2, 2018

Appearances:

The Applicant participated

Mr. Ryan Naimark for the Applicant

Mr. Darrell March for the Insurer

Issues:

The Applicant, Ms. Rista Almedom (the “Applicant”), was injured in a motor vehicle accident on August 28, 2015 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa” or the “Insurer”), 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 the Applicant entitled to receive a weekly income replacement benefit, and, if so, for what periods of time and in what amounts?
Is the Applicant entitled to receive a medical benefit for $1,299.99 for a treatment plan submitted by Healthmax Physio on December 8, 2015?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

The Applicant is not entitled to receive an income replacement benefit.
The Applicant is not entitled to any further payment of this medical benefit.
The Applicant is not entitled to the payment of a special award.
The Applicant is not entitled to interest.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

PRELIMINARY AND INTERIM MATTERS

At the commencement of the Hearing, I was asked to deal with a preliminary issue. This was a request by the Insurer to exclude the filing in evidence of a Supplementary Arbitration Brief by the Applicant.

I have the following facts on the request to exclude the brief. The brief contained a copy of an Insurer’s medical examination of the Applicant conducted in December 2017 and the Applicant’s George Brown College accommodation file up to December 2017.

The Insurer was only aware that the Applicant intended to file the Supplementary Brief the morning that the Hearing commenced. The following is a synopsis of the decision which I made and communicated to the parties:

The Insurer objects to the introduction of the documents on the basis of rule 39.1 of the Dispute Resolution Practice Code (“DRPC”). That provision makes it clear that a party must serve the other party with any documents to be used at the hearing at least 30 days before the hearing.

I note that, as part of the requests made for adjourning this Hearing two times from November until the time this Hearing began, we were made to understand from the Insurer’s representative that the Insurer was conducting post-104 income replacement benefit (“IRB”) assessments. Apparently, such assessments were not conducted. Rather, the reports included in the supplementary document brief of the Applicant deal with assessments of the Applicant for other reasons than issues which are in dispute in this Hearing.

Rule 39.1 of the DRPC is in practice designed to ensure that there is no ambush at the Hearing. All documents to be relied on must be made available to the other side. The arbitral decisions that the Insurer’s representative has referred to make it clear that the implementation of the rule might be draconian at times. It is designed to ensure that parties are not surprised by anything at the Hearing.

The Applicant’s representative has submitted the Court of Appeal case of Reimer et al v. Thivierge² as support for the proposition that if a report originated with the other party, a notice period need not be enforced.

I agree with the Insurer’s submission that this decision can be easily distinguished. The case relates to s. 52 of the Evidence Act³ providing a 10-day notice period for certain types of reports. This case does not touch on the specific hearing system that has been established under the DRPC. The case also deals with trials, not arbitrations under the Schedule and the Insurance Act.

The strongest point that the Applicant’s representative has made is that the Insurer would already have the reports that he seeks now to put into evidence; after all, they are reports from Insurer assessments. However, as the arbitral decisions that were cited to me establish, this is not sufficient. If a report is to be relied on, it is incumbent on the party who wishes to put it into evidence to alert the other side to that fact at least 30 days before the hearing.

There is a good policy decision for such a rule: in an arbitration under the Schedule, a document can be put into evidence even without a witness to establish the circumstances of that document. As a result, the 30-day notice period ensures that the opposing party can review all documents in appropriate time and prepare or oppose as is appropriate. The 30-day period also allows a party time to prepare; even if it had possession of a document, it still needs time to prepare knowing that the document will be sought to be put in evidence.

I ordered the supplementary document brief excluded. I further ordered that if Dr. Kelly (the maker of one of the reports) was to be called as a witness, the excluded documents would not be put to him in any fashion. I made a similar order with respect to a representative of the Applicant’s college (the maker of the accommodation file).

I was also asked to rule on the following interim matter at the beginning of the second day of the Hearing.

The Applicant’s representative made an application to me as follows:

A report in the Applicant’s document brief is suggested to be corrupted from the original report. The Applicant seeks an adjournment in order to establish the facts relating to such corruption by way of affidavit. The Applicant then intends to argue that I should consider the admission of an uncorrupted version of the document on the basis of r. 42 of the DRPC.

My own observation of the report in question is the following:

At Tab 23 of the Applicant’s document brief,⁴ there is a lengthy multi-part report. It is the multi-disciplinary report that the Applicant will rely on to establish significant parts of her case.

The report appears to be missing information as follows: signatures of Dr. Hsu are missing at pages xii and 38 of the report. At pages 22 through 29⁵ inclusive, there are large blank spaces which might have included graphical information. There are no pages 39 through 47 inclusive in the report.

The Insurer opposed the adjournment and the filing of an affidavit, on the basis that r. 39.1 of the DRPC deals with this matter clearly. As the impugned report was served as part of its documents, these are the documents that the Applicant must use.

The Insurer then further cross-applied for relief to exclude the impugned report as misleading. This was done on the basis that with parts of the report missing or unavailable, I should consider the report as misleading and, therefore, exclude it.

I was not prepared to exclude the report. The material in the report as submitted by the Applicant would be considered as it was presented. If sections which may be missing cast doubt on its conclusions, I would expect that that would be drawn out in cross-examinations and submissions by the Insurer. The exclusion of evidence is an unforgiving result which should only be used when evidence is submitted in contravention of procedural rules or is so obviously contrived or dubious as to be unreliable.

In this case, the impugned report on its face appears to include a great deal of observational material relating to the Applicant. Any deficiencies due to the ‘corruption’ of the document can, as I suggest, be dealt with by cross-examination or submissions.

Moving to the Applicant’s request for an adjournment, I noted that Practice Note 9 under the DRPC generally deals with adjournments. In addition, rule 72.4 DRPC deals with an arbitrator’s power to grant adjournments mid-proceeding.

In the midst of a hearing, adjournments should only be granted for the most serious of reasons. I note that Practice Note 9 suggests that a party’s failure to ensure the availability of documents is referred to as a common circumstance when an adjournment will be refused.

It is unfortunate that the document presented to me is allegedly corrupted from what is said to be its original form. There was, of course, a very easy means to have prevented this. It is known as proofreading and checking.

The Applicant’s representative could have avoided the need for this application if someone from his office had taken responsibility to ensure that the documents to be presented were accurate versions thereof.

If I were to delay this Hearing any more, this would act as a delay to both parties. Both Applicant and Insurer are entitled to a speedy adjudication of this matter.

As I am not prepared to exclude the impugned report and as the report is in the exact form that was served, my order is simple: the form of the report filed is that which the Applicant will continue to use in this proceeding. There will be no questions to witnesses relating to the gaps.

EVIDENCE AND ANALYSIS:

Facts

I have the following facts from the testimony of the witnesses and the documents filed.

The Applicant testified that she was born in 1988. Originally from Eritrea and coming through Sudan, the Applicant arrived in Canada (Winnipeg) in March 2012. She moved to Toronto in August 2014 so that she could get married to her husband in September 2014. She became a Canadian citizen in October 2016 having successfully completed the citizenship exam.

The Applicant obtained a grade 12 education in Eritrea. Because of different standards, she repeated grade 12 when in Sudan and then was reassessed in Winnipeg to confirm she had a grade 12 education in accordance with Canadian standards.

The Applicant completed one semester of three courses of pre-nursing studies at the University of Manitoba. She also had experience working in a Winnipeg youth centre cooking, cleaning and doing laundry in a youth group home between February 2013 and July 2014.

When the Applicant moved to Toronto, she enrolled in a nursing program at George Brown College and Ryerson University beginning in September 2014. No additional documentary evidence was presented by the Applicant as to the nature of the program. The evidence of the Applicant’s transcripts⁶ presented is incomplete covering only part of the period she testified as being enrolled in the program. In testimony, the Applicant was repeating courses in September 2015 because she did not have a high enough grade in the earlier year. However, no transcripts were presented to substantiate this.

The Applicant found employment in August 2015. Through M&M Employment Agency, the Applicant was employed at Mytox, a division of Magna. The Employer’s Confirmation Form⁷ indicates that the job title was “production line help” with a description of “sorting car parts.” The Applicant testified that she had to lift heavy parts of 8 to 10 kg in weight and put them on some type of testing machine. She also testified to having to sometimes lift the parts above her shoulder level. Based on the results of the testing, she might also have to place parts on another table.

The Applicant was paid minimum wage. The confirmation of employment signed by the employment agency shows her period of employment from August 12, 2015 to August 27, 2015. The form indicates that the Applicant received gross income for 3 weeks⁸ of $1,112.54. Paystubs provided⁹ show the same gross earnings amount.

The Applicant’s testimony with respect to the subject accident is that she was going home after visiting the employment agency’s office. She had been asked to provide some paperwork including a Social Insurance Number. She was crossing a driveway and a car hit her. She fell to the ground. She recalls her right hand was bleeding and the left side of her face was swollen.

She testified to not remembering anything until she was in the ambulance. She was taken to Humber River Hospital. A doctor examined her. She was told she had bruising. She was given Tylenol for pain and discharged home with advice to see her family doctor.

Documents filed in evidence establish the following relevant facts of the subject accident.

The Police Report¹⁰ notes the time the accident was reported was 11:51 a.m. on August 28, 2015. The Insurer’s property damage file¹¹ shows the accident being reported as “Insured hit pedestrian while making left turn.” This file also suggests minor vehicle damages.

The Ambulance Call Report¹² contains a description of the accident “Patient made contact with white sedan while crossing street.” Other notations include “patient complaining of pain to left side of face” and “small abrasion in left knee. Not actively bleeding. Patient complaining of pain in left shoulder also. No obvious trauma or injuries there.” The record notes that the attendants were at the patient at 11:56 a.m. and had her at the destination hospital at 12:32 p.m.

The Emergency Record of Humber River Hospital¹³ showed the reason for visit as “pedestrian MVC”. The record also notes “Pedestrian vs auto, low impact. No loss of consciousness. Ambulatory at scene. Glasgow Coma Scale 15.” X-rays were performed on the Applicant’s face and thoracic spine. They did not show any abnormalities. The final diagnosis is shown as “soft tissues” with follow up suggested to the family physician and Tylenol for pain. The Applicant was discharged at 3:56 p.m.

The triage history¹⁴ as part of the hospital records shows:

Pedestrian MVC crossing street struck by vehicle on her left side making left turn at 5km/hr fell to ground no head injury no loss of consciousness facial injuries complains of pain left upper face left upper neck anteriorly left lower back abrasion left knee.

The Applicant did not return to her pre-accident employment following the accident. She did not seek employment anywhere else.

Days after the subject accident, the Applicant resumed taking courses at the Waterfront campus of George Brown College in the nursing program. As part of her cross-examination, it was established that because the Applicant did not drive, her attendance at school would involve a transit ride of at least one hour in each direction. She took a bus from her home to the subway, a subway ride downtown and then a bus or streetcar to the College.

The Applicant found her courses challenging. The transcripts¹⁵ that I have for Fall 2015 and Winter 2016 show marks from A plus (in Introduction to Geography) to a D plus (in Adult Development) with five other marks of B+, B, B-, C+ and C.

The Applicant testified she was not able to achieve sufficient standing in her courses and was dropped from the nursing program in January 2018.

Since the subject accident, the Applicant has a number of ongoing complaints. She has pain in her back. She has headaches. She believes that she may have been concussed in the accident and be suffering from post-concussion syndrome. She believes that she is unsuited for any employment as a result of her inability to do any strenuous physical tasks. She has no office experience. The Applicant can use a computer having used an online course management system for her nursing course and can communicate by email.

On cross-examination, it was established that the Applicant had some pre-accident medical conditions. She had gastrointestinal issues and also had headaches before the accident which she believes was connected with her drinking too much coffee.

It was also established on cross-examination that prior to her admission to Canada, the Applicant was a refugee for political reasons. She acknowledged that, as a refugee, she was subject to many stresses.

Testimony and evidence was presented by Marissa Malkowski from the accommodations office at George Brown College.

Ms. Malkowski testified to first meeting the Applicant on November 4, 2016 to discuss possible accommodations for the Applicant in the nursing program. There were further meetings on March 2017 with a letter of the same day and further contact on October 2 and October 10, 2017 when the Applicant brought in a medical verification form. A meeting of October 13, 2017 was rescheduled to November 23, 2017 when various accommodations were provided to the Applicant. Because of the community college strike that took place in the fall of 2017, the deadlines for the Applicant were also extended.

No evidence was provided on how any of the accommodations that may have been accorded to the Applicant related to the subject accident. There was no evidence provided as to what specific limitations the Applicant had and how any accommodations would allow her to complete her course.

Dr. Douglas Salmon testified. After an extensive voir dire, I qualified him as an expert in Clinical Psychology, Neuropsychology, Vocational Assessment and Vocational Rehabilitation. He testified to being familiar with the Applicant’s case and acknowledged that he was the clinical coordinator for a multi-disciplinary assessment conducted to determine the Applicant’s entitlement to post-104 week IRBs.

He selected the clinical assessors, was the overall clinical quality assurer and specifically reviewed Dr. Hsu’s work. He also provided an executive summary of all individual reports and directly conducted the analytical part of the executive summary.

The Applicant was subjected to a two-day situational assessment which was designed to mimic the workplace. I have the complete report prepared (with the gaps indicated from above) in evidence.

On cross-examination, Dr. Salmon acknowledged never having personally met the Applicant. The cross-examination also elicited that the name of the psychometrist who conducted tests of the Applicant was not reported and that any part of the report which involved observations could be observations of the unnamed psychometrist.

There was also an acknowledgment that as part of the psychological testing, an administrative person who is not listed in the report was responsible for supervising the Applicant’s testing. Observations noted might also be those of the unnamed administrative person.

Dr. Salmon also acknowledged that there was no contact made with the employer. In addition, there was no observation of the work environment that the Applicant had.

Dr. Lorena Hsu testified. After a voir dire, I qualified her as an expert in Clinical Psychology.

Dr. Hsu conducted an in-person assessment of the Applicant on August 24, 2017. She conducted an appropriate clinical interview and oversaw the conduct of psychometric and cognitive testing. She noted the Applicant was unable to conduct 50% of the testing which she explained to me meant that the Applicant was able to make it about half way through the tests. This is not reported in this fashion in the actual report.

Dr. Hsu alone prepared the psychological portion of the report. She acknowledged not reading all of the other reports in the overall assessment. She was, however, provided a summary of the other reports.

After the close of the Applicant’s case, Ms. Jocelyn Leung, a representative of the Insurer, was presented for cross-examination by the Applicant. Ms. Leung had handled this file from about November 2015 to December 2016.

Ms. Leung testified that the Applicant’s claim for accident benefits was originally in the Minor Injury Guideline (“MIG”). The Applicant was removed from the MIG in March 2016 based on the finding that some psychological treatment proposed for the Applicant was reasonable and necessary.

There was questioning on the physiotherapist’s account. Prior to the MIG being in place, the account was paid to the $3,500 maximum. It was suggested that this left an unpaid balance of the physiotherapist’s account when the MIG was removed. The witness did not have sufficient information to answer that. She advised that she believed that all accounts submitted and approved have been paid.

Ms. Leung acknowledged that when the Applicant was paid an IRB, the weekly amount was $194.69. She also acknowledged that there was never a suggestion that this amount was somehow incorrect.

Ms. Leung also testified to the evidence that she used to terminate the IRB that was being paid to the Applicant. She acknowledged that the IRB was terminated as of February 1, 2016 based on a report from North York Rehabilitation Centre dated April 5, 2016.¹⁶

I now move to the documentary evidence advanced by both parties.

I have previously noted the reports around the actual accident. These reports generally suggest soft tissue injuries. I address possible neurological and left shoulder injuries below in my analysis.

The Applicant has provided the following medical information and reports:¹⁷

The clinical notes and records of the family physician, Abdullahi Berih, from October 14, 2014.¹⁸ The Applicant regularly saw her family physician from the time of the accident. The following notes are relevant:
- 16 February 2016 – Imaging report of an ultrasound of the left shoulder. There are two tears in the subscapularis tendon.
- 10 May 2016 – Patient is complaining of left shoulder pain.
- 24 November 2016 – Patient is unable to study, cannot concentrate and focus, gets bored, cannot retain any information when studying.
- 19 December 2016, a Dr. Jeremy Spevick writes about a neurological consult. Dr. Spevick does not draw a conclusion relating to the headaches the Applicant is suffering and their medical cause. There is no specific opinion or conclusion expressed that the Applicant suffers an impairment that arose from the subject accident that prevents her from carrying out her pre-accident employment.
- January 20, 2017 – A resident on the service of Dr. Tartaglia (UHN Memory Clinic) writes relating to a consult. There is some suggestion that there may be post-concussion syndrome.
A comprehensive “Medical and Legal Assessment and Post-104 IRB Determination” dated October 16, 2017¹⁹ was filed. This is the report mentioned above with missing pages and sections.

I note that the only physical medical opinion in the last report is that of Dr. Catre, an orthopaedic surgeon. At page 5 of his report, he declines to answer the referral question relating to whether the Applicant is precluded from her pre-accident employment by answering that he wants to have a functional abilities evaluation. He also is of the opinion that the Applicant does not suffer a complete inability to engage in any employment.

There is no neurological report in the Applicant’s multi-disciplinary report.

In their psychological report²⁰ in the multi-disciplinary report, Drs. Hsu and Salmon give the opinion that the Applicant’s subject accident,

materially contributed to her diagnoses of an Anxiety Disorder Not Otherwise Specified with Features of PTSD, an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Pain Disorder Associated with Both Psychological Facts and a General Medical Condition and related sleep impairment.

Drs. Hsu and Salmon are also of the view that the Applicant is suffering from a serious impairment “as confirmed by Situational Assessment.” Other opinions they provide are also subject to confirmation by the “Situational Assessment.”

As related above, Drs. Hsu and Salmon report is based on a great deal of psychometric and psychological testing. At page 16 it is reported that the Applicant completed forms for a total of 5 hours and 24 minutes in addition to having undergone a 1 hour and 23 minute interview and that testing was completed over 1 day consisting of 6 hours and 28 minutes excluding lunch.

At page 17 of their report, the Applicant’s academic achievement levels are reported as being from grades 3.9 to 9.6 depending on the skill.

No information is provided as to the implications of the Applicant being reported to not having completed all testing.

A report of a Two-Day Situational Work Assessment is provided from October 12, 2017.²¹ This was conducted by a Registered Occupational Therapist. The report measures the capabilities and aptitudes of the Applicant in accordance with the aptitudes used in the National Occupation Classification. The testing conducted concludes that the Applicant has aptitudes which are in the bottom 10% of the working population with a few exceptions which are scored in the lowest third exclusive of the lowest 10%.

Based on the assessment of the Applicant’s aptitudes, the overall conclusion of the multi-disciplinary report is that there is no occupation that the Applicant would be qualified for.²²

The Insurer has provided the following reports:

A Multi-disciplinary Assessment performed for the Insurer on January 19, 2016²³ generally suggests that the Applicant should have no limitations in returning to her pre-accident employment. In the physiatry assessment, there is no mention of any problems with the Applicant’s left shoulder. However, the functional abilities evaluation of the registered kinesiologist²⁴ does note “constant stabbing pain to the left shoulder.” In addition, the left shoulder range of motion shows a reduced range of motion.
A physiatry addendum report of January 29, 2016²⁵ adds new information from the family physician. The addendum does not alter the physiatric opinion.
A further medical examination of March 18, 2016²⁶ opines that the Applicant received “contusion injuries to the left side of her body involving her left shoulder and left knee.” The medical opinion was that the Applicant essentially sustained soft tissue injuries.
An Insurer’s psychological examination was conducted on March 21, 2016.²⁷ The conclusion of the report was that certain proposed psychological treatments were reasonable and necessary. An additional psychological paper review was conducted on April 5, 2016²⁸ to address IRBs. The opinion was that provided the Applicant received the psychological treatment proposed, she was not otherwise disabled or unable to perform her pre-accident employment.
A further medical addendum was provided on June 17, 2016.²⁹ This reviewed imaging of the Applicant which included a left shoulder ultrasound which revealed mild tenosynovitis of the tendon of the long head of biceps and two tears within the subscapularis tendon. The opinion is unchanged from the previous medical opinion given: the Applicant is capable of returning to her pre-accident employment.
A further physiatry addendum conducted on June 23, 2016³⁰ was provided. This also dealt with the imaging including the ultrasound described in the previous paragraph. The opinion is unchanged.
A further medical assessment was conducted on November 30, 2016.³¹ The opinion is similar to that previously given.
An Insurer’s psychological assessment was conducted of the Applicant on August 29, 2017.³² The opinion was that “the [Applicant] did not meet criteria for any diagnosis according to DSM-V” and that she did not sustain any diagnosable psychological impairment as a direct result of the subject accident.

Applicant’s Submissions

The Applicant submits the following points:

This was not a minor accident. The Applicant was knocked down;
The Applicant had no pre-existing injury;
The Applicant has been diagnosed with post-concussion syndrome;
The Insurer has not conducted a neurological assessment;
The Applicant has had objective complaints about her left shoulder since the time of the accident;
There is evidence of significant psychological issues;
The Applicant’s employment involved repetitive use of her shoulder;
The Applicant has shown herself to be a hard-worker since her arrival in Canada;
The Applicant made a concerted effort to complete her nursing program; and
The IRBs were terminated with little neurological or psychological justification.

The Applicant also submitted that I should consider the academic accommodations that were made in the Applicant’s nursing program as evidence which establishes her entitlement to IRBs.

Insurer’s Submissions

The Insurer has submitted that the benefits being sought should be based on an applicant’s demonstrated functional limitations caused by an accident. No matter what I may think about the hard-working nature of the Applicant being a new Canadian, her entitlement to benefits arising from the accident must be established step-by-step. The phrase used was: I must be able to “connect the dots.”

The Insurer submits that there is insufficient evidence to establish either physical or psychological disabilities. In the case of post-104 week IRBs, there is no evidence that establishes her entitlement to such benefits.

With respect to the expert evidence led by the Applicant, the Insurer notes that Dr. Salmon did not even meet with the Applicant at any point and, therefore, his opinions should be excluded from consideration as only being based on other people’s observations; not his own. I can disregard the evidence of the College’s accommodations officer as she was not qualified as an expert. In addition, her evidence has little value in that there is no evidence to show how academic accommodations would relate to the Applicant’s ability to work.

Submissions and Argument on Income Tax Treatment

During submissions, the Insurer argued that the Applicant’s Income Tax Returns do not show the income from the employment on which the Applicant bases her claim for the IRBs. Accordingly, I should apply s. 4(5) of the Schedule to not count the M&M employment income in a calculation of IRBs as it was clearly not reported on the Applicant’s 2015 Income Tax Return.³³

The Applicant objected to the Insurer making such an argument on the basis that: a) the issue was never pleaded as part of the Insurer’s response to the arbitration; b) the Applicant was never confronted during her cross-examination with this possibility and allowed to give an explanation; and c) to allow the argument is to allow the Insurer’s representative to be providing evidence as to the provisions of the Income Tax Act³⁴.

I have considered this matter and analyze it as follows.

As submitted by the Applicant, had the issue relating to income tax been a part of the Insurer’s response in the arbitration, the Application could have used the simple expedient of an amendment to her income tax return to ensure that the income on which her IRBs are based was included by the time of the Hearing. By not arguing the point until the very last day of a Hearing, this procedure would no longer be available to the Applicant.

Clearly, this is not fair.

The purpose of documents such as the Response by Insurer to an Application for Arbitration is to frame the arbitration. Although many grounds for the possible denial of IRBs are found in the Insurer’s Form E,³⁵ such as non-compliance with s. 56 of the Schedule and s. 281(2) of the Insurance Act, there is no allegation with respect to s. 4(5) of the Schedule.

I acknowledge as well that the way in which s. 4(5) is drafted requires me to have evidence as to what is required for someone to report income. Other than the Insurer’s argument, I do not have such evidence. Although I can take notice generally of the fact that income is reported for income tax purposes, I have no evidence that this applies to the Applicant or that she has not complied.

Again, I am taking a narrow view of this issue on the basis of my perception of what is fair. Clearly, if the Insurer was going to make this argument, notice of the argument should have been given earlier than the last day of argument.

I am sustaining the Applicant’s objection on this point and not allowing the Insurer to argue the matter. I further characterize the legal issue of s. 4(5) of the Schedule as an affirmative defence which must be specifically alleged in the Response and proved by appropriate evidence. This did not occur in this case.

Analysis

The first issue for me to consider is what impairments does the Applicant suffer as a result of the subject accident?

These break out into physical or psychological impairments.

As corroboration on any claimed impairment, I must consider the Applicant’s own activities after the subject accident as a check on what she claims. In this regard, I note that after the accident, the Applicant continued her studies in a nursing program at George Brown College. She had a transit commute of at least an hour each way. The program was demanding. In the first semester following the accident, the Applicant achieved an A+ in a college-level course.

The Applicant’s representative has attempted to have me discount her achievement by pointing to her eventual need for accommodations and then withdrawal from the program as proof that the accident affected her. I have to be careful in extrapolating her need for accommodations (or even the rationale that allows her to be provided accommodations) in the academic situation as if it were proof of an impairment that affects her ability to work. I do not believe that this is appropriate for me to do.

I had no evidence as to the College’s Accommodations Policy or under what circumstances the Applicant was provided accommodations. Even if I had had this evidence, it would be unlikely to change my decision.

Whether or not the College extended accommodations to the Applicant, this cannot displace my obligation to consider the Applicant’s medical evidence independently in determining her entitlement to accident benefits. The only relevant aspect of the accommodations file and decision would be the medical evidence that was submitted to the College which I already received in Dr. Berih’s records.

As argued by the Applicant’s representative, should I not extrapolate the Applicant’s eventual withdrawal from the nursing program as proof that she was impaired from the accident?

I cannot do this either. There may be many reasons why the Applicant was unable to succeed in the program. Not everyone who registers in any given academic program will successfully complete all of the requirements. It is not conclusive that, in this case, 2½ years after the accident the Applicant withdrew from her program and that must mean that the accident caused impairments.

I was referred to the case of Burgess and Pembridge³⁶ as support for the proposition that success in an academic program should not be used to determine impairments. I am not willing to accept that this decision stands for this proposition. Rather, in Burgess I see that the successful completion of an academic program allowed the IRBs in that case to be discontinued based on the claimant’s new career. This is clearly distinguishable from the facts in this case.

I return to an analysis of the Applicant’s physical and psychological impairments. In the case of her physical impairments, I find that the evidence points to two possible areas of physical impairment: a neurological condition (which matches the Applicant’s ongoing complaints of headaches), and the tears in her left shoulder (which have been objectively established by ultrasound imaging). Part of the Applicant’s submissions were that the Insurer had failed to consider a neurological assessment.

I have difficulty in finding evidence to support a neurological condition. There is a note in Dr. Berih’s notes from a fellow on Dr. Tartaglia’s UHN Memory Clinic service dated January 20, 2017,³⁷ which suggests that the Applicant has post-concussion syndrome. The report continues with recommendations relating to cognitive activities and a proposed follow-up after an MRI to take place in March 2017. However, no evidence was provided that the Applicant actually sustained a concussion at the time of the subject accident or that she ever followed the recommendations for activities. I also have no evidence of what the results of the MRI were in March 2017.

The Applicant consulted a neurologist, Dr. Jeremy Spevick. His reports are in the family physician’s notes. A note from December 19, 2016³⁸ is inconclusive. The report notes that the Applicant continues to suffer from post-traumatic pain without providing any source of the trauma. The report also contains: “Her neurological exam remains unchanged without any focal findings.” The neurologist also reports waiting for the MRI scheduled for March 2017.

Based on the foregoing, I do not find a neurological impairment.

Moving to the shoulder tears or any other physical reason, the Applicant’s own Orthopaedic Surgical assessor, Dr. Catre, does not believe she suffers a complete inability to engage in any employment (the post-104 week IRB test) as a result of a physical reason. At page 5 of his report,³⁹ he makes it clear that “from an orthopaedic standpoint, [the Applicant] does not suffer a complete inability…” This makes it clear to me that the left shoulder tears are not limiting.

With respect to the pre-104 IRB test, the orthopaedic surgeon did not provide an opinion. Instead, he recommended a functional abilities evaluation and a physical demands analysis.⁴⁰ Although he does suggest an opinion that “she would be precluded from returning back to her work”, he qualified this opinion with the need for the other information. No evidence was provided to me that the orthopaedic surgeon ever received this other information.

The Insurer’s physiatric assessor had no concerns about any physical impairment.⁴¹ I find that the left shoulder tear is not an impairment.

To conclude on physical impairment, the facts presented do not support either a neurological or left shoulder problem sufficient to be an employment disability.

In terms of a psychological impairment, there is an acknowledgment even in the Insurer’s medical evidence that the Applicant required and was provided psychological treatment⁴² for some minor psychological matters.

This was in March 2016. From that point until the Applicant was assessed for post-104 IRBs in August 2017, no evidence is provided of any psychological complaints or treatments of the Applicant. I note a comment in a report submitted by the Applicant dated August 28, 2017 that says “to date, [the Applicant] has not yet engaged in psychological treatment or counselling sessions.”⁴³

It strikes me that if the Applicant was psychologically impaired, she would have been seeking help and taking advantage of the psychological treatments that had been approved in March 2016. However, no evidence was presented to me about the Applicant seeking or receiving any psychological treatment.

I now comment on the psychological assessment report of Drs. Salmon and Hsu conducted on August 3 and 24, 2017. I note Dr. Salmon’s testimony that he has never met the Applicant and Dr. Hsu’s testimony that other than the interview of about an hour and a half, she did not have a lot of interaction with the Applicant.

In the report which is signed by both of them, I did not read any indication of Dr. Salmon’s lack of direct involvement or Dr. Hsu’s partial involvement. The impression a reader of their report would get is that they were both an active part of the interview and testing. I know this to be incorrect from their testimony.

There is no identification of the persons who supervised the filling out of forms or the conduct of the psychometric testing in the report. We know that others were involved from the testimony of both Drs. Hsu and Salmon. Given that the opinions in the report are those of Drs. Hsu and Salmon, it is important to understand what observations were made by Dr. Hsu (we know that Dr. Salmon is unable to make any observations directly) and which are observations made by the unnamed others. A reading of the report does not allow this.

In this case, the conclusions being drawn in the report are critical for my consideration of the issues in dispute.

The report suggests significant psychological problems with a number of DSM-V diagnoses and the implication that the Applicant cannot work as a result. However, I know that Dr. Salmon never saw the Applicant and that Dr. Hsu only saw her for a relatively brief period of time. As a result of the lack of any (in the case of Dr. Salmon) or significant (in the case of Dr. Hsu) contact with the Applicant, I have to take care in using the results of this report.

Further considering the report, I refer to the fact that the Applicant has never sought psychological treatment and that the Insurer has provided me a clear paper psychological review and opinion of Dr. Kelly of April 5, 2016.⁴⁴ On these bases, I have decided to accord no weight to Drs. Salmon’s and Hsu’s report. It is misleading and is contrary to the actual actions of the Applicant in not seeking any psychological treatment.

I also comment on the balance of the Multi-disciplinary assessment submitted by the Applicant. At times, the Applicant’s representative emphasized how the Applicant had undergone a comprehensive two-day situational assessment. Given his emphasis, it is useful that I comment on this evidence.

In reading the report of the situational assessment, the purpose of the exercise was to put the Applicant through a number of tests by which her aptitudes in 9 areas could be measured. These 9 demonstrated aptitudes could then be compared to entries in the National Occupation Classification (“NOC”).

I understand the NOC to be the database provided by the Government of Canada as part of a document called the Career Handbook.⁴⁵ This database provides many job titles and compares them to 9 vocational aptitudes. Each aptitude for each job is provided with one of 5 levels. The idea of the levels is that each job will require a person demonstrating a minimum aptitude in each of the nine. A ‘1’ represents the level of aptitude that applies to the highest 10% of the working population; a ‘5’ the lowest 10%; a ‘3’ the middle third and the ‘2’ and the ‘4’ being the balance of the population.

A person can be tested for aptitudes and the theory is that their aptitudes can then be compared to the NOC to determine what occupations may be suited to them. I note that a stated limitation in the Career Handbook⁴⁶ is that “the profiles presented here are not appropriate for other uses such as screening applicants for particular positions or determining insurance benefits.” (My emphasis.)

In spite of the limitation, I note that the situational assessment assesses the Applicant’s levels in the 9 aptitudes of mostly ‘5’ (the lowest level) with two or four ‘4’s depending on the day.

The Applicant’s cognitive aptitude levels and those in the previously dismissed psychological report, suggest a very low level of academic achievement on the part of the Applicant. How do I reconcile her demonstrated achievement at college in the year immediately following the accident and the suggestion that her cognitive or verbal aptitudes are almost all in the bottom 10% of the workforce? Stated in an alternate manner: how can someone who received an A+ in a college-level geography course in the semester immediately following her accident be rated in the bottom 10% of the working population on vocational testing two years after the accident?

An answer is found in the psychological reports filed on behalf of the Insurer. These reports suggest that in completing many of the assessment instruments, the Applicant provided answers that suggested she was not providing her full effort.

I have no information that the tests conducted in the two-day situational assessment are similar to those in the General Aptitude Test Battery on which the NOC is based.⁴⁷ One test conducted which was part of the previously dismissed psychological report was the conduct of a GATB⁴⁸ assessment. However, rather than the numeric levels of the GATB, the aptitudes are presented in narrative form in the report. No explanation at any point in the multi-disciplinary report is given as to differences between known achievements of the Applicant, the scores on the GATB and the scores on the two-day situational assessment.

Given the inconsistencies between the situational assessment and what I know from other evidence about the Applicant, I am not prepared to follow the situational assessment in any aspect. I am not satisfied that the reports provide a reasonable explanation for her low aptitudes given what else I have in evidence about the Applicant’s functioning. Given the limitation stated relating to not using the NOC for ‘insurance benefit purposes’, I am also not prepared to draw the conclusion that the assessor suggests that there is no occupation to which the Applicant is suited.

My conclusion on IRBs is that the Applicant has not demonstrated any physical or psychological impairments caused by the subject accident.

Without any impairments, the Applicant does not qualify for IRBs.

Medical Benefit Sought

The Applicant was removed from the MIG at the end of March 2016 as a result of the approval of psychological treatment. Prior to her removal from the MIG, treatment plans had been approved up the maximum $3,500 allowable. One treatment plan of December 4, 2015 in particular had been proposed for $1,299.99 and had been approved for $1,244.33.⁴⁹ The Applicant seeks the remaining $57.15.

The Insurer provided me evidence⁵⁰ of the payment of two invoices to Health Max – Etobicoke of Invoice 1527511 ($417.53) and 1526565 ($822.44). These amounts total $1,239.97.

The Applicant submits that she continues to be entitled to payment of the $57.15.

No proof has been made of an unpaid invoice. The burden of proof is not on the Insurer to show that an account has been paid, but on the Applicant to show that an account that relates to a benefit she is entitled to has not been paid. Although I have evidence that there is a benefit of $57.15 that the Applicant is entitled to, I do not have any evidence that any invoice relating to this benefit continues to be unpaid.

Based on the foregoing, there is no entitlement to the medical benefit sought.

Special Award

Because I have not made any award of a benefit in the Applicant’s favour, there is no need for me to consider the issue of a special award.

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 for determination of same in accordance with Rules 75 to 79 of the DRPC.

April 30, 2018

Marcel D. Mongeon Arbitrator

Date