Dispute Resolution Services de résolution des différend

Neutral Citation: 2020 ONFSCDRS 1

A14-004904

BETWEEN:

MARIA DIAS

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

Decision Rendered By: Maggy Murray. Decision rendered by way of transcripts¹ of the hearing that took place on August 28, 29, 30, 31, November 27, 28, 29, December 8, 2017, January 5, 24, April 20, 23, 25, 26, May 11, 14 and 25, 2018 at the offices of the Financial Services Commission of Ontario in Toronto

Hearing Conducted By: Alan Mervin²

Appearances: Stanley Razenberg, Merel Ksebi and Jamie Min for Ms. Dias

Daniel Himelfarb and Nicholas Wine for Coachman Insurance Company

Issues:

The Applicant, Maria Dias, was injured in a motor vehicle accident on September 28, 2012. She applied for and received statutory accident benefits from Coachman Insurance Company (“Coachman”), payable under the Schedule.³ Coachman terminated medical benefits. The parties were unable to resolve their disputes through mediation, and Ms. Dias 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 Ms. Dias entitled to receive non-earner benefits in the amount of $185 per week from June 6, 2013 to date and ongoing?
Is Ms. Dias entitled to medical and rehabilitation benefits pursuant to ss. 14, 15 and 16 of the Schedule totalling $21,938.25 for the following:

From Physiotherapy Fix:

i. $3,688.40 for chiropractic treatment and massage therapy pursuant to a treatment plan dated October 9, 2012;

ii. $3,199.01 for chiropractic treatment and massage therapy pursuant to a treatment plan dated January 30, 2013;

iii. $2,715.84 for chiropractic treatment and massage therapy pursuant to a treatment plan dated May 22, 2013;

iv. $2,091.09 for chiropractic treatment and massage therapy pursuant to a treatment plan dated July 15, 2013;

v. $2,747.53 for chiropractic treatment and massage therapy pursuant to a treatment plan dated September 25, 2013;

vi. $2,481.34 for chiropractic treatment and massage therapy pursuant to a treatment plan dated November 27, 2013;

From Healthcare Assessment Centre:

vii. $2,869.04 for mental health therapy pursuant to a treatment plan dated July 27, 2013;

viii. $2,146.00 for an orthopaedic assessment pursuant to a treatment plan dated August 21, 2013;

Is Ms. Dias entitled to a special award?

Result:

Ms. Dias’ claims are dismissed.
The issue of the expenses of this proceeding is deferred.

EVIDENCE AND ANALYSIS:

Witnesses

The Applicant testified on her own behalf and called the following witnesses: her husband, Reginaldo Dias, her daughter Ariane Fanjoy, Dr. Basile (treating neurologist), Dr. Hanick (treating psychiatrist), Dr. Susana Rodrigues (family doctor) and Ms. Porter (occupational therapist).

The insurer called the following witnesses: Dr. Zielinsky (psychiatrist), Dr. Prendergast (psychologist) and Dr. Velan Sivasubramanian.

Background

Ms. Dias was 48 years old at the time of the September 2012 accident in which she claimed to sustain soft-tissue injuries, headaches, noise sensitivity (such as noise from her husband washing the dishes and rain)⁴ and psychological problems.

The burden of proof rests with the Applicant. She must prove on a balance of probabilities that, as a result of the accident, she is entitled to the benefits she is claiming. I have considered the whole of the evidence and for the following reasons I find that the Applicant has not discharged her burden. She did not provide reliable evidence that she is entitled to the benefits she is claiming.

Non-Earner Benefits (NEB’s)

Law

NEB’s

Section 12 of the Schedule states:

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

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

(2) Subject to subsection (3), the amount of a non-earner benefit is $185 for each week during the period that the insured person suffers a complete inability to carry on a normal life, …

(4) The insurer is not required to pay a non-earner benefit,

(a) for the first 26 weeks after the onset of the complete inability to carry on a normal life; …

Complete Inability to Carry On a Normal Life

Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life. It states:

a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident; …

The test for entitlement to NEB’s is a functional test and requires a comparison of Ms. Dias’ activities of normal living both before and after the accident in order to determine whether she suffers a complete inability to carry on what she normally did before the accident due to impairments she allegedly suffered as a result of the accident.⁵

Credibility of the Applicant

Important factual inconsistencies, misrepresentations or material non-disclosure of relevant facts by an applicant and lack of corroboration can be fatal to an applicant's claims. In the absence of objective evidence, the credibility of the Applicant is crucial and it is due to a lack of credible evidence that the Applicant's claims fail. As stated in Faryna v. Chorny, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable.”⁶ Below are some examples of the Applicant’s lack of credibility.

i. Ms. Dias testified that she did not have any anxiety before the accident.⁷ However, Dr. Rodrigues’ clinical notes and records (cnr’s)⁸ indicated that 15 months before this accident, Ms. Dias felt anxious and panicky;

ii. Ms. Dias testified that she was prescribed Cymbalta because she was “so happy.”⁹ However, Cymbalta is used to treat depression and anxiety;

iii. Ms. Dias reported in June 2013 that she was worried about being unable to “return to work” although she had not worked since 2003;¹⁰

iv. When Ms. Dias preformed neuropsychological and psychological tests, Dr. West¹¹ found evidence of symptom amplification;

v. Dr. Esmail (neurologist) found that Ms. Dias presented with significant pain focused behaviour;¹²

vi. Ms. Dias scored 6/30¹³ on the Montreal Cognitive Assessment test, which Dr. Zielinsky testified is what someone with severe dementia¹⁴ would score;

vii. Ms. Dias scored so poorly on the Rey Memory Test and the TOMM Memory Test¹⁵ that even someone who guessed at the answers would do better;

viii. Ms. Dias’ perception of her disability was more than what she demonstrated when tested by Dr. Makos (chiropractor);¹⁶

ix. Ms. Dias told assessors that she was looking for a full-time job before the accident¹⁷ and did not tell them that she looked after her grandkids before the accident;¹⁸

x. Although she testified that she didn’t spend much time with her family after the accident, her Facebook photos show that attended family functions;¹⁹

xi. Dr. Hanick (treating psychiatrist) opined that Ms. Dias over-reports her symptoms;²⁰

xii. Although Ms. Dias claimed that she stopped driving as a result of the accident, the evidence indicates that she stopped driving before the accident;²¹

xiii. Ms. Dias testified that she has not resumed her pre-accident exercise routine.²² However, Dr. Hanick stated in his cnr of December 3, 2014²³ that Ms. Dias exercises, uses a stationary bike, stretches and reads the Bible for three hours each day;

xiv. Ms. Dias testified that she began using a cane right after the accident.²⁴ However, Dr. Hanick testified that when he saw Ms. Dias in June 2013, she was not using a cane.²⁵ Dr. Yufe noted in his May 31, 2013 neurological report that Ms. Dias walked without assistive devices;²⁶ In addition, her use of a cane was only mentioned in medical records in 2015;

xv. Ms. Dias said she did not use a computer anymore because she forgets how to use it, yet her numerous Facebook photos and posts, filling one banker’s box,²⁷ tell a different story;

xvi. Ms. Dias gave different information regarding her ability to cook:

(1) in December 2012, she reportedly returned to cooking;²⁸

(2) in May 2013, she reported that she could do light cooking;²⁹

(3) in May 2013, she reported that she does absolutely no cooking or cleaning;³⁰

(4) in September 2014, she reported that she does some cooking;³¹

(5) in January 2017, she reported that she was unable to cook breakfast;³²

(6) in January 2017, she reported that she cannot cook;³³

(7) in January 2017, she reported that she can cook;³⁴

(8) in February 2017, she reported that she could help with simple meals, such as making soup, sandwiches or pasta;³⁵

(9) she testified that since the accident, she no longer cooks;

(10) Facebook indicates that she was looking for a couscous recipe so that she could “make it tomorrow.”³⁶

The above raise serious questions about the Applicant’s credibility and reliability.

Section 12 of the Schedule states that to meet the non-earner benefit test, the insured person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. However, Dr. Hanick, Ms. Dias’ treating psychiatrist, opined in his report dated September 24, 2016³⁷ that:

i. It was not until 2015 or 2016 (i.e., three to four years after the accident) that Ms. Dias suffered a complete inability to carry on a normal life;³⁸

ii. Prior to September 2016, Ms. Dias suffered a partial inability to carry on a normal life.

Dr. Basile’s (treating neurologist) testing failed to produce radiculopathy in Ms. Dias when she was tested three different times within one year. However, Dr. Basile opined that the timing of Ms. Dias’ complaints indicate that they are related to the accident. It is open to an adjudicator to accept all, some or none of a witness's evidence.³⁹ I place little weight on Dr. Basile’s opinion because:

i. He only reviewed Dr. Rodrigues’ (family doctor) records and did not review: (1) the insurer’s assessments, which indicated invalid testing; or (2) the records of Dr. Yufe (neurologist);⁴⁰

ii. Although he opined in a report dated November 22, 2016 that Ms. Dias suffered from post-concussive syndrome, his reports of December 16, 2015 and July 5, 2016 do not mention post-concussive syndrome. In fact, he opined in his report of July 5, 2016 that an MRI showed that Ms. Dias’ brain was normal;

iii. In his report of November 22, 2016, he opined that Ms. Dias is “quite debilitated and cannot perform any activities of daily living,⁴¹ however, her Facebook posts tell a different story;

iv. In his report of December 16, 2015, he opined that Ms. Dias did not have a head injury and presented with no features of post-concussive syndrome;⁴²

v. Dr. Basil testified that he did not discuss with Ms. Dias her life before the accident.⁴³

I place little weight on Dr. Rodrigues’ (family doctor) opinion because although she completed OCF forms on behalf of Ms. Dias, she testified at the arbitration hearing that she did not know what the test for entitlement to non-earner benefits was.⁴⁴ Moreover, like Dr. Basile, she did not review the insurer’s assessments,⁴⁵ which indicated invalid testing.

I place little weight on Ms. Porter’s assessment because:

i. She did not opine on the NEB test;

ii. She took Ms. Dias’ complaints at face value and acknowledged that if Ms. Dias exaggerated or over-reported her symptoms, that could affect her assessment.⁴⁶

I place little weight on Ms. Dias’ daughter Ariane’s evidence because she was not familiar with her mother’s medical condition before the accident. For example, she did not know that her mother was taking anti-anxiety medication before the accident⁴⁷ or that she spoke with her family doctor about feeling pressured to take care of Ariane’s children.

Ms. Dias’ pre-accident lifestyle included spending time with her children and grandchildren, which she continued to do after the accident. She was also independent with respect to various other activities. For example, after the accident:

i. Ms. Dias’ Facebook post on November 22, 2012 indicates that she walked to the mall with her grandkids, without a walking device such as a cane or a walker, went to the park and dinner with family;

ii. Ms. Dias’ Facebook posts of October 22, 2012 and October 19, 2014 show her out for dinner with her family;

iii. Facebook shows Ms. Dias and her grandchildren during Christmas 2013;⁴⁸

iv. Ms. Dias celebrated Christmas and New Year’s Eve 2017 with her husband and her daughter’s family;⁴⁹

v. Ms. Dias uses the internet regularly, as evidenced by her numerous Facebook posts;

vi. Ms. Dias went to a soccer game in a stadium in 2013, despite her alleged sensitivity to noise and only tolerating noise from herself and her husband;⁵⁰

vii. Ms. Dias did not require assistance with her hygiene or medication,⁵¹ unless she was having a bad day;

viii. Ms. Dias does her own housekeeping;

ix. Ms. Dias leaves her home numerous times a day to smoke cigarettes.

Ms. Dias underwent various insurer’s examinations which concluded that she did not suffer a complete inability to carry on a normal life as a result of the September 28, 2012 accident such as:

i. Dr. Yufe (neurologist) in his report dated May 31, 2013;⁵²

ii. Dr. Marchie (orthopaedic surgeon) in his May 31, 2013 report;⁵³

iii. Dr. Zielinsky (psychiatrist) in his May 31, 2013 report.⁵⁴ Dr. Zielinsky also noted that Ms. Dias had a tendency to over-endorse symptoms of anxiety; gave inconsistent answers, put forth diminished effort and engagement,⁵⁵ demonstrated symptom magnification and secondary gain when tested,⁵⁶ and appeared unreliable in her presentation and reporting symptoms;⁵⁷

iv. Dr. Prendergast (psychologist) in his May 31, 2013 report.⁵⁸ Dr. Prendergast also found that Ms. Dias’ “responses and behaviour during psychometric testing indicated exaggeration and embellishment to a point that it was highly likely “that she was engaged in a significant degree of feigning,” exaggerating and over-reporting cognitive difficulties to appear worse than she is,⁵⁹ her reports of pain and pain-related disability did not accurately reflect her true level of impairment and it was highly likely that she was not describing herself accurately,⁶⁰ and her endorsements on one particular validity scale indicated the possibility if not likelihood that she was not honest when answering questions.⁶¹

Conclusion Regarding NEB’s

Based on the above, Ms. Dias is not entitled to NEB’s. More specifically, based on the functional test for entitlement to NEB’s and a comparison of Ms. Dias’ activities of normal living both before and after the accident, she does not suffer a complete inability to carry on what she normally did before the accident due to impairments she allegedly suffered as a result of the accident.⁶²

Medical Benefits

Law

Section 15(1) of the Schedule states:

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 (emphasis added),

(b) chiropractic, psychological, occupational therapy and

physiotherapy services;

(h) other goods and services of a medical nature that the insured person requires, …

The text The Law of Evidence in Canada, states: "an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.⁶³ I draw a negative inference from the Applicant's failure to call any witnesses who would have helped to establish the reasonableness and necessity of the Treatment Plans in dispute, such as the authors of the Treatment Plans.

The Applicant testified that physio and massage treatment helped her a lot.⁶⁴ However, she did not say what that treatment helped or how it was related to any impairment she suffered in the accident. Moreover, in a Facebook post of October 10, 2012 she states: “… physio making me worse.”⁶⁵

From Physiotherapy Fix:

i. $3,688.40 For Chiropractic Treatment And Massage Therapy Pursuant To A Treatment Plan Dated October 9, 2012

Dr. Makos conducted an insurer’s examination and concluded in his January 9, 2013 report that:

i. Ms. Dias rated her back pain in the “bed-bound or exaggerated disability” category;⁶⁶

ii. Ms. Dias had an exaggerated pain focus that was not supported by objective findings;⁶⁷

iii. The proposed treatment was not reasonable and necessary.⁶⁸

ii. $3,199.01 For Chiropractic Treatment And Massage Therapy Pursuant To A Treatment Plan Dated January 30, 2013

Dr. Makos conducted a paper review insurer’s examination and concluded in his February 8, 2013 report that the proposed treatment was not reasonable and necessary.⁶⁹

iii. $2,715.84 For Chiropractic Treatment And Massage Therapy Pursuant To A Treatment Plan Dated May 22, 2013

Dr. Crescenzi conducted an insurer’s examination and concluded in his June 27, 2013 report that the proposed treatment was not reasonable and necessary.⁷⁰

iv. $2,091.09 For Chiropractic Treatment And Massage Therapy Pursuant To A Treatment Plan Dated July 15, 2013

Dr. Crescenzi conducted a paper review insurer’s examination and concluded in his August 12, 2013 report that the proposed treatment was not reasonable and necessary.⁷¹

v. $2,747.53 For Chiropractic Treatment And Massage Therapy Pursuant To A Treatment Plan Dated September 25, 2013

Dr. Crescenzi conducted a paper review insurer’s examination and concluded in his October 21, 2013 report that the proposed treatment was not reasonable and necessary.⁷²

vi. $2,481.34 For Chiropractic Treatment And Massage Therapy Pursuant To A Treatment Plan Dated November 27, 2013

Dr. Crescenzi conducted a paper review insurer’s examination and concluded in his December 13, 2013 report that the proposed treatment was not necessary.⁷³

From Healthcare Assessment Centre:

vii. $2,869.04 For Mental Health Therapy Pursuant To A Treatment Plan Dated July 27, 2013

Dr. Prendergast conducted a paper review insurer’s examination and concluded in his August 12, 2013 report that:

i. There was “significant exaggeration of cognitive, pain and psychological problems” by Ms. Dias;⁷⁴ and

ii. The proposed treatment was not necessary.⁷⁵

In addition, Dr. Hanick, who is Ms. Dias’ treating psychiatrist, did not opine that it was reasonable and necessary for Ms. Dias to receive more psychological counselling.

viii. $2,146.00 For An Orthopaedic Assessment Pursuant To A Treatment Plan Dated August 21, 2013

Dr. Marchie concluded in his September 6, 2013 report that the proposed treatment was not reasonably required.⁷⁶

Conclusion Regarding Medical Benefits

Ms. Dias did not call any witnesses who would have helped to establish the reasonableness and necessity of the Treatment Plans in dispute. Her evidence regarding treatment being helpful was nebulous. I prefer the evidence of the insurer’s assessors because their reports were based on a more thorough document review which provides a more comprehensive picture of the Applicant. Therefore, I find that Ms. Dias is not entitled to the medical benefits she claimed.

Special Award

The Insurance Act previously stated:⁷⁷

s.282(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 Statutory Accident Benefits 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.

There can be no special award where all of the Applicant's claims are dismissed. No evidence was introduced during the hearing that supported a claim for a special award. Furthermore, since the Applicant failed to prove entitlement to any of the benefits claimed, a claim for a special award cannot be supported and must be dismissed. Since the insurer did not unreasonably withhold or delay payment of benefits, Ms. Dias is not entitled to a special award.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

February 6, 2020

Maggy Murray Date

Arbitrator

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