Dispute Resolution Services Services de règlement des différends

Neutral Citation: 2020 ONFSCDRS 3

A14-000966 and A14-001618

BETWEEN:

JOSE ARANA RETANA

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: October 16, 17, 18, 2017, January 22, 23, and 24, 2018 at the offices of the Financial Services Commission of Ontario in Toronto. Final written submissions were received on September 27, 2019

Appearances: Joseph Filice for Mr. Retana Harry Brown for Coachman Insurance Company

Issues:

The Applicant, Jose Arana Retana, was injured in motor vehicle accidents on July 24, 2011 and August 26, 2012. He applied for and received some statutory accident benefits from Coachman Insurance Company (Coachman), payable under the Schedule. Coachman did not approve most of the benefits sought by Mr. Retana. The parties were unable to resolve their disputes through mediation, and Mr. Retana applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.¹

The issues in this hearing in respect of the accident on July 24, 2011 are:

1. Is Mr. Retana entitled to receive a non-earner benefit in the amount of $185 per week from January 24, 2012, to date and ongoing?

2. Is Mr. Retana entitled to attendant care benefits, in the amount of $60.00 per week for services provided by Ms. Yeldy Escobar?

3. Is Coachman liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Retana?

4. Is Coachman liable to pay Mr. Retana’s expenses in respect of the arbitration?

5. Is Mr. Retana liable to pay Coachman’s expenses in respect of the arbitration?

6. Is Mr. Retana entitled to interest for the overdue payment of benefits?

The issues in this hearing in respect of the accident on August 26, 2012 are:

1. Is Mr. Retana entitled to receive a non-earner benefit in the amount of $185 per week from February 26, 2013, to date and ongoing?

2. Is Mr. Retana entitled to attendant care benefits, in the amount of $900.96 per week for services provided by Ms. Yeldy Escobar?

3. Is Mr. Retana entitled to receive a medical benefit, in the amount of $4,066.85, for chiropractic services and physiotherapy, provided by Revive Health Centre?²

4. Is Mr. Retana entitled to payments for the cost of the following examinations:

a. $2,000 for an Occupational Therapy In-Home Assessment, recommended by Options Therapy, OCF-18 dated November 14, 2013; and

b. $3,215.61 for various assessments, recommended by Network Health Assessments & Rehabilitation?

5. Is Coachman liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Retana?

6. Is Coachman liable to pay Mr. Retanan’s expenses in respect of the arbitration?

7. Is Mr. Retana liable to pay Coachman’s expenses in respect of the arbitration?

8. Is Mr. Retana entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Retana’s claims for benefits in respect of the accidents of July 24, 2011 and August 26, 2012 are dismissed.

Overview:

In 2002, Mr. Retana had a serious workplace accident that rendered him very much impaired. As a result, he suffered from severe physical and psychological impairments before the motor vehicle accidents in 2011 and 2012.

There was no significant decline in Mr. Retana’s status or functioning following the motor vehicle accidents. Post-accident medical documents such as the ambulance report, St. Joseph’s Health Centre reports and University Health Network (UHN) records confirm that Mr. Retana’s functioning was not materially affected by the motor vehicle accidents.

Extensive surveillance evidence in 2015 and 2017 shows Mr. Retana shopping, socializing and performing outdoor chores on a sustained basis. Due mainly to this surveillance, and the fact that it was not provided to his assessors and service providers, I have found that Mr. Retana’s evidence is not credible and that his medical evidence is unreliable. Mr. Retana’s claims for accident benefits also do not pass the ‘but for’ causation test.

As a result, he has not proven on a balance of probabilities that he is entitled to the non-earner, attendant care, medical and cost of examination benefits that he has claimed.

EVIDENCE AND ANALYSIS:

Background:

Mr. Retana was born in Guatemala in 1976 and lived in the United States for seven years before immigrating to Canada in 1993. Mr. Retana advised his Workplace Safety & Insurance Board (WSIB) case manager that he had completed grade 6 in Guatemala and has achieved a Grade 4 level of English as a Second Language since coming to Canada.

The 2002 Workplace Accident:

Mr. Retana was involved in a workplace injury in 2002, when he dislocated his right wrist after falling approximately 8 feet and landing on his right arm. He continued working for one year before discontinuing his employment due to severe wrist pain.

According to the medical documentation found in Mr. Retana’s WSIB and Canada Pension Plan (CPP) files, Mr. Retana suffered from the following injuries and impairments as a result of the 2002 workplace injury:

a. Chronic right wrist and arm pain attributable to ulnar carpal impaction and lunotriquetral joint tear;³

b. Right digit pain, mostly involving the ring and little finger associated with carpal tunnel syndrome;⁴

c. Right forearm, elbow, and upper arm pain;⁵

d. Right shoulder pain with decreased range of motion especially with abduction;⁶

e. Left shoulder pain due to overcompensation with the left arm during activities normally requiring both hands;⁷

f. Right upper back and mid back pain;⁸

g. Severe, chronic neck pain with decreased range of motion in all directions due to tight muscles and pain;⁹

h. Chronic headaches and nausea;¹⁰

i. Chronic fatigue and lack of motivation to engage in daily activities;¹¹

j. Poor sleep lasting only 2-1/2 hours nightly, attributes to chronic hand, arm and neck pain; and¹²

k. Major depressive disorder (chronic), with psychotic features (thoughts of cutting his hand off with an electric saw and hearing voices) and chronic pain, poor prognosis.¹³

In addition to medication, Mr. Retana treated his pre-accident symptoms with physiotherapy, a chronic pain management program, and three operations on the right wrist in 2004, 2005, and 2008. Mr. Retana’s treating orthopaedic surgeon anticipated a 60% chance of significant improvement in wrist pain with surgery. He states: “it remains guarded whether the surgery will help his ulnar sided wrist pain, and it certainly will not do anything for his entire upper extremity or the rest of his body.¹⁴ Mr. Retana complained that his symptoms only worsened following the three surgeries, and described them as a “failure”.¹⁵

Mr. Retana testified that he continued to experience chronic pain at the time of the 2011 accident, despite these interventions, which provided only temporary relief.¹⁶ In the year preceding the 2011 accident, Mr. Retana’s medical records reveal the following:

a. April 28, 2010 – frozen right wrist, pain in the right forearm, upper arm, shoulder, right interscapular region at the superior end and pain and the right neck extensor muscles going up into the occiput on the right side. Pain in the shoulder extending down to right lower parathoracic muscles and right paralumbar musculature. All pain scores are uniformly 10/10.¹⁷

b. November 5, 2010 – chronic pain with concomitant anxiety and depression, little frustration tolerance, low energy, fluctuating energy and mood, interrupted sleep, isolation, immobilized wrist.¹⁸

c. April 13, 2011 - pain in the neck, shooting down at 9 level, Jurnista 8 mg not helping at all. Received nerve block injection of Marcaine and Depo-Medrol.¹⁹

d. May 10, 2011- no question there is improvement now. The neck pain and the shoulder pain are practically gone, which is good. He had the pain in the wrist now and if he does not use it for a long time, he starts feeling the pain shooting down from neck to shoulder area. Nerve block injected to the wrist and prescribed MS Contin 30 mg, Tylenol No. 3 and Cesamet.²⁰

e. May 14, 2011- right wrist and shoulder pain x 8 years. Depression. Smoker-marijuana 4-5 per day. The patient has chronic pain problems as well as depression.²¹

f. June 7, 2011 – headache from the left side to the suboccipital area. Shoulder pain. Prescribed MS Contin 30 mg and Pantoloc 40 mg. Nerve block injections of occipital nerve.²²

g. July 5, 2011- neck muscle tightness. Prescribed Tylenol No. 3, Pantaloc 40 mg, Duragesic patch 75 mcg and MS contin 30 mg²³ Started Pristiq (anti-depressant) 2 weeks ago.²⁴

Mr. Retana did not accept what the WSIB was willing to offer him as compensation. The Workplace Safety & Insurance Appeals Tribunal (WSIAT) heard Mr. Retana’s appeal, releasing their decision on June 19, 2014.

According to the decision, Mr. Retana refused to participate in the WSIAT Maximum Medical Recovery program. Rather, he suggested that “the board should pay him $750,000 to start his own construction business.”

The WSIAT found “the combination of the worker’s compensable organic and psychological conditions together with his personal and vocational character render the worker incapable of any employment” and ordered the WSIB to compensate Mr. Retana for his workplace injury.

The 2011 Motor Vehicle Accident:

Mr. Retana was the seat-belted driver of a pickup truck stopped at a red light when he was rear-ended on July 24, 2011. His vehicle sustained $2,524.61 in property damage as a result of this accident.

Mr. Retana was not aware that his truck was rear-ended until he saw the driver of the car behind him exit his vehicle. Mr. Retana did not feel any pain until three days later.²⁵

After visiting his family doctor three days after the accident, where he complained of neck, head, chest and back pain, Mr. Retana waited more than two months before he sought additional medical attention for accident-related complaints. During a visit to his chronic pain specialist on September 28, 2011, Dr. Said Salama noted, “as far as his hand is concerned, he just says this is the same.”²⁶

In a two month period, Mr. Retana travelled alone to Guatemala for three weeks (from late August to early September 2011).²⁷ As counsel for Mr. Retana also admitted, Mr. Retana went to Guatemala an additional three times after the 2012 accident. In total, Mr. Retana has visited Guatemala four times after the motor vehicle accidents in 2011 and 2012.²⁸

Since 2006, Paul Freedman, Master of Social Work (MSW) in conjunction with Dr. Kljenak (psychiatrist) of University Health Network Psychiatric Clinic treated Mr. Retana. Mr. Retana’s first visit with Mr. Freedman after the accident was on November 25, 2011. Mr. Freedman’s records do not refer to the 2011 motor vehicle accident or any injuries from that accident, but do state the following:²⁹

a. Mr. Retana claims that his mood disorder is unchanged (on two occasions) from his previous visit to the clinic, which was June 5, 2011;

b. Mr. Retana also notes that his energy and sleep are the same (presumably referring to his June 5, 2011 status);

c. Mr. Retana was considering going off medication which suggested a significantly improving chronic pain disorder/mood disorder; and

d. Mr. Retana and his wife have reconnected in November 2011.

Mr. Retana continued to consume the same dosage of Tylenol #3, Teva-Morphine, Pantoprazole and Fentanyl patches in September 2011 as he did before the accident.³⁰

Radiological imaging of the pelvis, shoulders, lumbar spine, thoracic spine, and cervical spine were unremarkable.³¹

On March 5, 2012, Dr. James Rathbun, (an orthopaedic surgeon who examined Mr. Retana on behalf of Coachman) determined that Mr. Retana had zero musculoskeletal impairments as a result of the 2011 motor vehicle accident.³² Rather, Mr. Retana’s inability to work and limitations in self-care activities at the time was attributable to the 2002 workplace injury alone.

The 2012 Motor Vehicle Accident:

On August 16, 2012, Mr. Retana was rear-ended at “low speed (very minor damage to back of truck).”³³ His pickup truck sustained $2,117.58 in property damage.³⁴

The contemporaneous medical documentation contradicts Mr. Retana’s testimony that he struck his head on the steering wheel in this accident. According to the ambulance call report, the “[patient] did not hit his head, no [loss of consciousness].” The paramedics note that he was able to take his shoes and socks off independently, and exhibited normal DTR (deep tendon reflex) and SLR (straight leg raises). Mr. Retana declined to be taken to the hospital and went home. Mr. Retana waited two days before seeking medical attention. On August 28, 2012, he attended the Emergency Room at Humber River Hospital, where were he was diagnosed with a “minor back and neck injury.”³⁵

This diagnosis is consistent with Mr. Retana’s signed statement dated October 17, 2012. Although he described feeling pain in the right hand, shoulder, and right back immediately after the accident, Mr. Retana also stated, “I always have pain here following my work-related accident of 2002.”³⁶

Causation:

Causation is a key issue in this case.

In Clements v. Clements,³⁷ a tort case cited in various accident benefits decisions, Chief Justice McLachlin confirmed that “material contribution” only applied where the “but for” test is impossible to apply.

At paragraph 46 of this judgment, she concluded as follows:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

Also, in the accident benefits case of Blake v. Dominion of Canada Insurance Company,³⁸ the Ontario Court of Appeal found that the “but for” test is the default test and the onus is on the plaintiff to show that the material contribution test should be used.

In his initial submissions based on the decision of Arbitrator Smith in Sabadash and State Farm Mutual Automobile Insurance Company³⁹ regarding causation, Mr. Retana submitted that the “material contribution” test rather than the “but for” test should apply in this case. However, before the decision in this case was rendered, Arbitrator Smith’s decision preferring the “material contribution” test over the “but for” test was overturned on appeal by Director’s Delegate Evans.⁴⁰ Director’s Delegate Evans confirmed the correct test to be applied for causation in accident benefits cases (except in certain specified situations as set out in Clements) is the “but for” test.

This appeal decision went to judicial review by the Divisional Court.⁴¹

At paragraph 31, the Divisional Court analysed the test to determine causation in an accident benefits case (involving a claim for a caregiver benefit) and concluded as follows:

Both the Arbitrator and the Director’s Delegate looked to the jurisprudence of the courts to determine the appropriate test for causation. The decisions of the Supreme Court of Canada in Clements v. Clements, above, Athey v. Leonati,⁴² above and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 provide guidance in determining causation in a personal injury case. The Ontario Court of Appeal in Monks v. ING,⁴³ above, held that the same analysis applies in the accident benefit context: see Monks at paragraphs 88 and 89. That analysis is as follows:

a. Causation is a factual determination made on a balance of probabilities: Clements at paragraph 46;

b. The test for establishing causation is the “but for” test;

c. The Supreme Court in Clements held that, “As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.” See Clements at paragraph 46;

d. “There is no indication in the SABS of a legislative intent that an insurer’s liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured’s pre-existing injuries … The SABS simply states, in clear and unambiguous language, that an insurer ‘shall pay an insured person who sustains an impairment as a result of an accident, medical, rehabilitation and attendant care benefits.’”: See Monks at paragraphs 94 to 96;

e. In exceptional circumstances, where (i) the plaintiff establishes that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each of whom could be responsible for the loss; but (ii) the plaintiff is unable through no fault of her own, to show that one tortfeasor is the “but for” cause of her injuries because each tortfeasor can point to the other as the possible “but for” cause of the injury, a plaintiff may establish liability against one defendant if that defendant’s conduct materially contributed to the plaintiff’s risk of injury: See Clements at paragraph 46;

f. This is because public policy dictates that a defendant should not be permitted to escape liability by pointing the finger at another wrongdoer, thereby defeating a finding of causation on a balance of probabilities against anyone: See Clements at paragraphs 13 and 46;

g. A material contribution to the risk of impairment is one that falls outside the de minimis range: See Athey at paragraph 44.

The Sabadash judgment at the Divisional Court level confirmed that Mr. Retana’s position (that the applicable test for causation in this case was “material contribution”) was no longer tenable. Once it was clear that there would be no further appeals in the Sabadash case, I gave the parties an opportunity to make additional submissions regarding causation.

After reviewing the parties additional submissions regarding the interpretation of causation in accident benefit cases, and based on the Sabadash decision in the Divisional Court, I find that the applicable test for causation in this case is the “but for” test.⁴⁴

Credibility of Mr. Retana:

In cases like this, the applicants’ credibility is an extremely important issue. It governs how much weight I can give to their evidence, and to the evidence of their medical witnesses that have relied on the applicants’ subjective complaints and comments. In this case, Mr. Retana’s credibility suffered from numerous inconsistencies and significant contradictions.

For example, Mr. Retana testified at both the Licensing Appeal Tribunal (LAT) and the Commission that he reconnected with his wife prior to the 2011 motor vehicle accident, possibly in 2010.⁴⁵ In various medical reports, he then claimed that his relationship with his wife suffered as a result of the 2011 and 2012 motor vehicle accidents. However, the University Health Network (UHN) records indicate that by 2007, Mr. Retana and his wife were separated, with the wife having a room in their house but rarely spending time there.⁴⁶ Also, according to the records of Dr. Zurowski, Mr. Retana and his wife were still separated, with the wife having a room in their house but rarely spending time there, and Mr. Retana was still “a 44-year old living at home with his ex-wife” by November 5, 2010. Mr. Retana saw Mr. Paul Freedman MSW of the UHN Psychiatric Clinic after the 2011 accident on November 25, 2011. The clinical record from that visit indicates that he and his wife reconnected in November 2011, approximately three to four months after the 2011 motor vehicle accident.⁴⁷

Mr. Retana also claimed that he suffered from psycho-emotional injuries as a result of the 2011 accident. However, Mr. Freedman saw Mr. Retana on November 25, 2011 and noted twice that Mr. Retana reported his mood being unchanged from his previous visit to the clinic (which was June 5, 2011), and that his sleep and energy levels were the same.

Further, according to Mr. Retana’s attendant care invoices, he allegedly received services on July 25, 2011 (one day after the 2011 accident). However, his cross-examination evidence at LAT and a signed statement dated November 16, 2011 indicates that he did not feel any pain until three days after the 2011 accident. Mr. Retana also claims he received attendant care services throughout late August to early September 2011. However, his oral evidence and the records of Dr. Duchastel dated September 29, 2011 indicate that he spent approximately three weeks in Guatemala during this time. His personal support worker (PSW), Yeldy Escobar, testified that she did not provide any attendant care services during the time Mr. Retana was in Guatemala.

Coachman submits that Mr. Retana’s evidence regarding attendant care is unreliable, and conflicts with the available evidence with respect to his travels and post-2011 accident status.

Although Mr. Retana testified that he struck his head on the steering wheel during the 2012 accident, this is contradicted by the documentary evidence. In the ambulance report notes it states that “[patient] did not hit his head, no [loss of consciousness].

Mr. Retana also testified that he was not taking any medication for depression at the time of the first motor vehicle accident in July 2011. In fact, he said that the medication was discontinued in 2010.⁴⁸ This is contrary to the documentary evidence, which indicates that Mr. Retana filled prescriptions for Sertraline for depression in January 2011 and in March 2011, and could have been taking it at the time of the motor vehicle accident in July 2011.⁴⁹

Although Mr. Retana testified before the WSIAT neither the WSIB file, nor the WSIAT decision of June 2014 mention either of the motor vehicle accidents. The WSIAT concluded that the 2002 workplace accident was the sole cause of Mr. Retana’s ongoing physical and psychological impairments.

Coachman submits that there are only two plausible explanations. Either Mr. Retana neglected to disclose the accidents because they were so inconsequential, or he purposely misled the WSIAT in which case it submits that an adverse inference should be drawn regarding his credibility.

Coachman also submits that Mr. Retana has continuously provided inconsistent and self-serving evidence. It states that any subjective self-reports with respect to his injuries and impairments, activities of normal living, attendant care needs, medical and cost of examination benefits should not be given any weight.

Mr. Retana retained Omega Medical Associates (Omega) to conduct assessments to determine if he met the test set out in the Schedule for catastrophic impairment. Omega retained Dr. Dory Becker, psychologist, to examine Mr. Retana in connection with this claim. As proof of his credibility, Mr. Retana submitted that Dr. Becker stated the following:

The claimant ought to be considered a credible witness because despite a lack of formal education, English as a second language, and having an expansive medical file stemming from his 2002 workplace accident, the claimant was a good historian of pre and post-accident functioning.

I place little weight on this comment from Dr. Becker. As indicated below, she failed to review Mr. Retana’s CPP, WSIAT and UHN records from before and after the motor vehicle accidents. Mr. Retana’s claim for catastrophic impairment was heard at the Licensing Appeal Tribunal by Arbitrator Jeffrey Shapiro.⁵⁰ Although that hearing pertained to a different issue involving Mr. Retana, Adjudicator Shapiro found against Mr. Retana and concludes as follows:

This matter largely turns on [the applicant]’s lack of reliability, and perhaps credibility. While I accept that he has a pain disorder and depression, and that he has real functional limitations both physically and as a result of a mental behavioural disorder, I do not find he is catastrophically impaired as defined by the Schedule, for two reasons. First, I find that the limitations have been overstated and do not meet the definition of catastrophic impairment under the Schedule, and second, his functional limitations are not from the 2011 and 2012 accidents in a material way.⁵¹

The claims for benefits in this case also largely turn on Mr. Retana’s lack of reliability, and credibility.

I agree with Coachman that Mr. Retana’s evidence was not credible in many instances, as outlined above. Accordingly, I give very little weight to Mr. Retana’s evidence, and to the medical evidence that relied on his subjective complaints and comments, especially since they were not permitted to view the surveillance evidence of Mr. Retana doing many of the activities that he claimed he could not do.

Mr. Retana’s Medical Experts:

Coachman submits that the above contradictions in the evidence were not properly considered by Mr. Retana’s experts, and therefore should be given little weight.

Dr. Harpreet Sangha, physiatrist on behalf of Mr. Retana:

In the March 24, 2016 Determination of Catastrophic Impairment Report, Dr. Harpreet Sangha of Omega Medical Associates states that he was advised by Mr. Retana of numerous physical complaints including headaches, upper and lower back pain, leg and ankle pain, pain in both upper extremities, neck pain, bilateral shoulder pain, and chest discomfort. Dr. Sangha considered each of these complaints and but could find no objective evidence of an impairment in any of those areas, but for the lower back.

Dr. Sangha found that Mr. Retana demonstrated 6% whole person impairment based on lumbar spine impairment (5% WPI) and medication use (1% WPI).

Dr. Sangha assigned a 5% WPI rating to Mr. Retana’s lumbar spine impairment. Coachman submits that even this conclusion is questionable in light of the surveillance evidence, which shows Mr. Retana bending over in his garden picking up debris, loading and unloading groceries from his truck, and shopping with his wife for up to six hours at a time.

Dr. Sangha’s finding of lower back impairment is also contradicted by the reports of orthopaedic surgeons, Dr. Rathbun, Dr. Soriano, and Dr. Paitich. Each assessor consistently found zero musculoskeletal impairments as a result of the 2011 and 2012 motor vehicle accidents.⁵²

Dr. Sangha’s report also indicated Mr. Retana advised him that he had not taken Mobicox (also known as Meloxicam) prior to 2011. However, the reports of Dr. Mian in 2003, 2004 and 2007 show Mr. Retana was taking Meloxicam at that time and Dr. Mian was also recommending Gabapentin. The prescription histories from Dufferin Pharmacy shows entries for Meloxicam in January, February and April 2008.⁵³ Dr. Sangha also reports Mr. Retana was taking 75 mcg of Fentanyl every 72 hours, but not in 2007-2009. Dr. Roos indicates that Mr. Retana was taking 75 mcg of Fentanyl every 48 hours, rather than every 72 hours in 2009.

Coachman submits that Dr. Sangha is incorrect with regard to the type or dosage of Mr. Retana’s medication before the motor vehicle accidents. However, Coachman agrees with Dr. Sangha’s conclusion that the majority of Mr. Retana’s complaints were unsubstantiated and also submits that that is consistent with the documentary evidence.

Dr. Dory Becker, psychologist on behalf of Mr. Retana:

In the same report, Dr. Becker found that Mr. Retana suffered a Marked (Class 4) impairment in the Activities of Daily Living, Concentration, Persistence and Pace, and Adaption categories.⁵⁴

Coachman submits that little weight should be given to the opinions of Dr. Becker. It states that Dr. Becker admitted in cross-examination before the LAT that neither the 2011 nor the 2012 accidents were psycho-traumatic.

Mr. Retana submits that Dr. Becker never admitted in cross-examination before the LAT that neither the 2011 nor the 2012 accidents were psycho-traumatic. Instead, Mr. Retana submits that Dr. Becker opined that despite records of some vehicular-associated anxiety, Mr. Retana did not meet the criteria for a DSM diagnosis of Post-Traumatic Stress Disorder (PTSD).

As examples, Coachman submits that in the 2011 accident, Mr. Retana did not know he had been hit in the back until he saw the driver behind him get out of his vehicle. He also had no complaints until about three days later. The second accident was also a minor rear-end collision, from which Mr. Retana did not seek immediate medical attention from the EMS, the hospital, or his family doctor. Coachman submits that there is no evidence of any psychological or behavioural impairments caused in these two accidents.

Despite finding that neither accidents were psycho-traumatic, Coachman objects to Dr. Becker nevertheless accepting Mr. Retana’s subjective complaints at face value. On only the basis of Mr. Retana and his family’s subjective history, she accepted that Mr. Retana suffers from:

• Pain while falling asleep, and having difficulties returning to sleep
• Fluctuations with appetite
• Feeling less useful, less confident, guilty feelings
• Unable to assist with grandchildren
• Problems with concentration and decisiveness
• Passive and transient suicidal ideation

Coachman also notes that Dr. Becker failed to consider the fact that the above complaints pre-existed the 2011 and 2012 accidents, and were documented in the CPP and WSIB files, particularly the clinical notes and records of Dr. Kljenak of the UHN. Dr. Becker stated that she did not review the WSIAT or CPP files except for a few psychological/psychiatric reports and the one page summary in the Omega report. In particular, she stated that she did not review the reports of the case manager or other pre-accident healthcare providers (which listed Mr. Retana’s actual psychological and physical impairments/complaints pre-accident).⁵⁵

Dr. Becker also failed to review any of the UHN records post July-2011 (in particular, the UHN records in November 2011), where Mr. Retana stated to Paul Freedman on two occasions that his mood was unchanged and that his sleep and energy were the same. He also stated that he and his wife had reconnected following the 2011 accident. This directly contradicted his evidence to Dr. Becker regarding the 2011 accident.

Upon cross-examination at the LAT hearing, Dr. Becker admitted she was not aware of the full spectrum of medications that Mr. Retana was taking prior to the motor vehicle accidents.

Coachman submits that neither accident of 2011 and 2012 was psycho-traumatic and is in contrast to the WSIAT decision in June 2014 which finds that the workplace accident of 2002 produced both physical and psychological conditions. Coachman states that neither the 2011 or 2012 motor vehicle accidents were mentioned in the WSIAT hearing of June 2014. So it appears that Mr. Retana did not consider these events to be psycho-emotionally significant.

Coachman also notes that Dr. Becker considers that Mr. Retana has increased anxiety even though there are no objective features.

It is noteworthy that most of the complaints made by Mr. Retana to Dr. Becker are the same or similar to those pre-existing the subject accidents and documented in the pre-2011 WSIB/CPP file. Further, the evidence of Mr. Retana as to his current physical condition is contradicted by the extensive surveillance, as well as the reports of Dr. Sangha and all defence medical assessors. Accordingly, I give Dr. Becker’s evidence little weight.

Dr. Igor Wilderman, chronic pain specialist on behalf of Mr. Retana:

In the August 25, 2016 Chronic Pain Assessment Report, Dr. Wilderman found that, “while Mr. Retana was suffering from pre-existing medical difficulties, he was learning to manage his condition successfully and function well physically, emotionally and socially” prior to the 2011 and 2012 motor vehicle accident. As such, he found that “there is no indication that Mr. Retana’s previous, well managed condition is the sole cause for the development of his current state.”

However, he did not know about Mr. Retana’s trips to Guatemala after the motor vehicle accidents. He also did not know that Mr. Retana was taking medical marijuana before the first motor vehicle accident.

Dr. Wilderman’s conclusion is directly contradicted by the available documentary evidence pre-July 2011. As discussed above, Mr. Retana was suffering from 10/10 pain in the right wrist, right forearm upper arm, shoulder, right interscapular region, neck, and back in April 2010. In April 2011, only three months prior to the 2011 motor vehicle accident, Mr. Retana was still complaining of 9/10 pain in the neck. He reported that the pain medication prescribed to him was “not helping at all.”⁵⁶

Coachman submits that Dr. Wilderman did not have the benefit of Mr. Retana’s full pre-accident medical history. Coachman states that had he reviewed the CPP and WSIB files, he would not have been able to conclude that Mr. Retana’s pain condition was well-managed, prior to the 2011 and 2012 accidents.

I agree with Coachman that Dr. Wilderman’s conclusion does not take into account Mr. Retana’s full pre-accident history, including his CPP and WSIB files. As a result, I give it little weight.

Coachman’s Medical Experts:

Coachman submits that its reports should be preferred because they properly considered Mr. Retana’s pre-accident status, as well as objective medical evidence.

Dr. James Rathbun, orthopaedic surgeon on behalf of Coachman:

In his report dated March 5, 2012, Dr. James Rathbun determined that Mr. Retana was not entitled to NEBs as a result of the first accident. Dr. Rathbun found that Mr. Retana did not sustain any musculoskeletal impairment in that accident. Rather, Mr. Retana’s inability to work and limitations in self-care activities at the time were attributable to the 2002 workplace injury alone.

Dr. Cathy Notarfonzo, psychologist on behalf of Coachman:

Mr. Retana was also assessed by psychologist Dr. Cathy Notarfonzo, who found that Mr. Retana was not entitled to NEBs as a result of the 2012 accident. In her report dated June 25, 2015, Dr. Notarfonzo diagnosed Mr. Retana with Adjustment Disorder and a Pain Disorder associated with both psychological factors and a chronic general medical condition. However, she concluded that Mr. Retana was suffering from both a pain and mood disorder prior to the accident, with minimal improvement. Further, Dr. Notarfonzo noted that to confirm her opinion, she would require Mr. Retana’s full pre-accident medical file for review. As well, Coachman notes that Dr. Notarfonzo was not provided with the UHN records of November 2011.

Dr. Soriano, orthopaedic surgeon on behalf of Coachman:

According to Dr. Soriano’s report dated July 20, 2015, Mr. Retana is not entitled to NEBs for the second accident. In his report, Dr. Soriano found that Mr. Retana sustained minor soft tissue injuries as a result of both motor vehicle accidents. Dr. Soriano did not find that either accident caused any significant musculoskeletal damage, and did not find any objective evidence to support Mr. Retana’s reported functional and physical limitations. Based on a complete musculoskeletal evaluation, Mr. Retana’s injuries did not prevent him from carrying on (what was for him) a normal life.

Dr. David Sewell, registered kinesiologist on behalf of Coachman:

Mr. Retana was also assessed by a registered kinesiologist, Dr. David Sewell. However, Mr. Retana declined to attempt several functional tasks during his assessment. Dr. Sewell notes in his report, refusing to attempt a task due to reported pain symptoms is not objective evidence of functional impairment. Rather, it is a subjective restriction of performance.

Mr. David Kaplun, occupational therapist on behalf of Coachman:

Mr. David Kaplun completed an in-home occupational therapist assessment report on June 23, 2015. He found that Mr. Retana was not entitled to NEBs in relation to the second accident. According to Dr. Kaplun, any limitations stated by Mr. Retana pre-date the 2011 and 2012 motor vehicle accidents.

Dr. Paitich, orthopaedic surgeon on behalf of Coachman:

Dr. Paitich testified before the LAT and completed a catastrophic assessment report dated October 12, 2016. His opinion was that Mr. Retana sustained only myofascial strain injury involving the cervical spine and lumbar spine as a result of the 2011 and 2012 accidents. However, there was doubt regarding causality as the pre-accident history indicates both neck and lower back pain that was chronic and secondary to the workplace injury of 2002. In any event, he found no evidence of impairments from the soft tissue injuries, and provided an aggregate combined impairment score of 0%.

Is Mr. Retana entitled to a Non-Earner Benefit (NEB)?

Law:

In order to be entitled to a non-earner benefit (NEB), Mr. Retana must prove on a balance of probabilities that from, (and within two years of) the 2011 and 2012 motor vehicle accidents, he sustained an impairment that caused him to suffer a complete inability to carry on a normal life.⁵⁷ Numerous cases have commented on the strictness of this test.⁵⁸

According to the Ontario Court of Appeal in Heath v. Economical Insurance Company,⁵⁹ the starting point for the NEB analysis is to compare Mr. Retana’s activities and life circumstances before the accident to those after the accident.⁶⁰ Mr. Retana suffered from severe physical and psychological symptoms prior to the 2011 motor vehicle accident. These symptoms were not responsive to various forms of treatment. As a result of the 2002 workplace injury, Mr. Retana was already very much impaired in terms of daily function and activities at the time of the first motor vehicle accident in 2011. Mr. Retana acknowledged that he had significant pre-existing injuries prior to this motor vehicle accident. However, he submitted that his Pain Disorder and depression improved prior to the first motor vehicle accident due to a reduction in pain to his neck and shoulders.⁶¹

Analysis:

Relationships:

Mr. Retana indicated that his relationship with his wife suffered as a result of the 2011 and 2012 motor vehicle accidents. However, the records of Dr. Milan indicate that Mr. Retana and his wife separated in 2005 due to his anger issues. By 2007, they were still separated, with the wife having a room in their house but rarely spending time there.⁶² Mr. Retana and his wife provided inconsistent testimony at the hearing with respect to the date they reconnected. However, a note from UHN dated November 25, 2011 states “Reconnected w[ith] his wife.” Coachman suggests that they reconnected in November 2011, approximately three to four months after the 2011 motor vehicle accident.⁶³ Mr. Retana submits that there could be multiple interpretations of this note. I find that even if Mr. Retana’s reconnection with his wife occurred before the first car accident, it was still in effect after it.

With respect to grandchildren, there are indications that Mr. Retana was able to do some activities with them although not as much as pre-accident. Mr. Retana’s OCF-3s also indicate that he continued to perform regular activities at a reduced frequency, but is not completely prevented from performing them. Also, during Mr. Retana’s cross-examination, he admitted that he was still able to take the grandchildren to the park or to school on occasion.

Travel:

The family doctor’s records show that in September 2011, six weeks after the accident, Mr. Retana went to Guatemala by himself for three weeks.⁶⁴ Mr. Retana and his wife admitted that he indeed visited Guatemala independently in September 2011. Counsel for Mr. Retana also admitted that Mr. Retana had gone to Guatemala three more times following the August 2012 motor vehicle accident.⁶⁵

Mr. Retana testified that before the first motor vehicle accident he did not require help with packing, booking his flight or special accommodation during the flight.⁶⁶ His evidence was that after the first motor vehicle accident, he required assistance with packing and booking the flight, and that he “had difficulty travelling because [he] couldn’t be sitting down for a long time, so he would stand up and take medications…”⁶⁷

Garage Construction:

As part of the separation from his wife mentioned above, Mr. Retana constructed living quarters for himself in the garage of the matrimonial home. He submitted that he did not engage in this sort of activity after the motor vehicle accidents. However, on cross-examination, he admitted that this was a one-time effort done with a significant amount of help from friends in completing this project. Further, once this project was complete, there was no reason for him to engage in projects of this nature.

Medication:

Due to the 2002 workplace accident, Mr. Retana was already on significant amounts of medication, including daily doses medical marijuana, for pain and depression prior to the 2011 and 2012 motor vehicle accidents. Mr. Retana submitted that prior to the motor vehicle accidents his prescription for Fentanyl was for 50 mcg every 72 hours and then it was increased to 75 mcg every 72 hours. However, the records of Dufferin Medical Pharmacy show that on June 9, 2011 (just prior to the first motor vehicle accident) Mr. Retana filled a prescription for 75 mcg every 72 hours. In addition, Mr. Retana submitted that his medication increased from Tylenol #3 to Tylenol #4 in February 20, 2014, after the motor vehicle accidents. However, I note that the second motor vehicle accident occurred on August 26, 2012, about one and one-half years before this change in pain medication.

Surveillance:

The surveillance tapes show significant inconsistencies between the plaintiff’s reported impairments and actual activities and functioning post-accident. Overall, the extensive surveillance evidence obtained from April 2015 to March 2017 reveal the following inconsistencies in Mr. Retana’s evidence:

• Mr. Retana reportedly shared grocery shopping, laundry, and light/heavy cleaning activities with his wife pre-2011. Although he said he could no longer do so after the 2011 accident, the surveillance shows him bending over in his garden picking up debris, loading and unloading groceries from his truck, and shopping with his wife for up to six hours at a time on a regular basis in 2017. It also showed him putting air into his truck tire, checking under the hood of his truck and taking out the garbage.

• Upon the recommendation of his doctor, Mr. Retana took up walking. Surveillance showed him on numerous occasions walking briskly with no obvious signs of discomfort to his back, such as limping, grimacing, holding his back. During the surveillance, he was always wearing some sort of arm brace.

• Mr. Retana indicated that he and his wife had spent less time together but the surveillance videos show them conducting activities together on a regular basis including driving to Toronto, local driving, walking and shopping together for several hours at a time; including using his right arm to carry a tray of food and carrying blinds at Lowes, and unloading carts and carrying groceries into the house. He is also walking with his wife at the Oshawa Mall including carrying a tray of food for her and himself. These activities are consistent with his ability to assist his wife with the cooking and cleaning.

• Mr. Retana indicated that he is unable to drive his grandchildren to school but the evidence shows Mr. Retana driving on almost a daily basis several times per day including long trips from Oshawa to Toronto on a regular basis. Dr. Vasquez indicated that he sees Mr. Retana on a bi-weekly to monthly basis. Dr. Vasquez’ office is located on Dufferin Street in Toronto whereas Mr. Retana resides in Oshawa. This is a drive of approximately one hour in each direction. One of the Activities of Daily Living listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment is travel, which Mr. Retana is seen to be doing on a regular basis.

• Mr. Retana indicated that he became socially isolated after the motor vehicle accidents. However, surveillance evidence shows that he continues to see friends for walks in the park and visits to local restaurants.

Mr. Retana sought to minimize the impact of the surveillance on his case by submitting that these happened to be very time-limited and isolated incidents. He also submitted that the surveillance shows him functioning in a manner consistent with his injuries and impairments. Due to the sheer volume and variety of the inconsistencies between Mr. Retana’s evidence about his post-accident functioning and the surveillance, I do not accept these explanations, and find that his level of functioning before the motor vehicle accidents and after the motor vehicle accidents was largely the same.

Conclusion re NEB:

Due to his workplace accident in 2002, Mr. Retana suffered severe physical and psychological impairments before the motor vehicle accidents. His lengthy WSIB and CPP files contain extensive records, documenting his pre-existing impairments. The pre-existing conditions are extremely important in determining causation in this case.

Objective medical evidence (not paid for by either party) shows that Mr. Retana suffered no verifiable decline in function following the accidents. The ambulance call report, St. Joseph’s Health Care records, and UHN records all confirm that neither accident affected his level of function.

As previously discussed, both accidents were very minor. I find that the accidents, taken collectively or independently, were not sufficient to cause any deterioration in Mr. Retana’s condition.

Extensive surveillance shows Mr. Retana shopping, socializing, and performing outdoor chores. Medical documentation reveals that he told doctors that he wished to stop taking his anti-depressant medication, and reconnected with his wife after the accidents. This medical documentation and the surveillance significantly contradicted his oral testimony, and compromised his credibility. Mr. Retana’s wife testified that after the motor vehicle accidents, Mr. Retana still socialized with the grandchildren, but not as energetically.

From a psychological point of view, Mr. Freedman of the UHN Psychiatric Clinic saw Mr. Retana on November 25, 2011 and noted twice that Mr. Retana reported his mood being unchanged from his previous visit to the clinic (which was June 5, 2011), and that his sleep and energy levels were the same. There was also no reference to the 2011 accident or any resulting injuries.

Coachman submits that had Dr. Becker carefully reviewed the clinical notes and records post-July 2011, as well as the extensive surveillance, it is highly unlikely that Dr. Becker would have found Mr. Retana impaired as a result of the subject accidents. Further, Coachman submits that Dr. Becker’s finding that Mr. Retana sustained psychological injuries and impairments as a result of the subject accidents is untenable considering her admission that neither of the accidents were psycho-traumatic. I agree that it is also irreconcilable with the fact that all of Mr. Retana’s complaints were already present in the pre-July 2011 medical documentation.

Mr. Retana’s medical witnesses did not read all or major parts of the WSIB or CPP files and did not see the extensive surveillance. Mr. Retana has not led credible and reliable medical or other evidence to substantiate his position that, he would not have suffered a complete inability to carry on a normal life but for the motor vehicle accident or accidents of 2011 and 2012. I further find that there was not any impairment from the motor vehicle accidents that continuously prevented him from taking part in substantially all of his pre-accident activities. In fact, records at the UHN show that his psychological condition may have improved. Accordingly, after comparing Mr. Retana’s activities and life circumstances before the accident to after the accident, I find that they have not decreased in any appreciable way.

The onus is upon Mr. Retana to prove his case on a balance of probabilities with credible and reliable evidence. He cannot succeed unless he shows as a matter of fact that he would not have suffered a complete inability to carry on a normal life, (as interpreted in the case law), “but for” the motor vehicle accidents of 2011 and 2012. Based on the “but for” test, I find that Mr. Retana has failed to prove his case for non-earner benefits on a balance of probabilities, and is therefore not entitled to them.

Is Mr. Retana entitled to an attendant care benefit?

Law:

Under section 19 of the Schedule, the insurer shall pay attendant care benefits for all reasonable and necessary expenses that are incurred as a result of the accident.

If the attendant care provider did not do so in the course of the employment, occupation or profession in which the attendant care provider would have ordinarily been engaged for remuneration, the amount of the attendant care benefit shall not exceed the amount of the economic loss he or she would have sustained during that period.

Analysis:

Mr. Retana submitted attendant care invoices for the period from July 24, 2011 to February 2014. Coachman submits that these invoices were not provided to Coachman until 2015. The service provider, Ms. Yeldy Escobar, is the daughter of Mr. Retana’s wife, and works as a PSW. As a result, if payable, the attendant care benefit would not be limited to the economic loss she sustained as a result of providing the attendant care.

Ms. Escobar testified that she would come twice a week and complete two hours of assistance for Mr. Retana with respect to attendant care and some housekeeping duties.

Ms. Escobar also stated that she was told by her mother that Mr. Retana had been involved in an accident on July 24, 2011. On July 25, 2011, she reportedly came to the house and found Mr. Retana in bed apparently suffering from injuries of the July 24, 2011 accident. She claims that she provided some attendant care, including preparing some lunch and helping him with some exercises.

In a statement given to an independent adjuster, Mr. Retana indicated that he had no complaints from the accident of July 24, 2011 for three days. Yet, the attendant care invoice on July 25, 2011 and the testimony of Ms. Escobar claimed that services such as dressing, hygiene care, exercise assistance, bathing, cooking, laundering, and medication administration was provided on the day after the accident.

Ms. Escobar stated in her cross-examination that her mother (Mr. Retana’s wife) suffered from torn muscles, as well as vision issues as a result of diabetes since 2007, and that she would provide care for her whenever she could. As a result, Coachman submits that it seems unlikely that the Expenses Claim Forms pertain to any attendant care services provided to Mr. Retana directly as a result of the motor vehicle accident of July 24, 2011. It is Coachman’s position that in all probability, Ms. Escobar was providing these services to her mother before and after the subject accidents, as opposed to Mr. Retana.

It was indicated by Ms. Escobar that she billed Mr. Retana for these services. However, Ms. Escobar indicated there is no record of any payments made or records of original notes as to the services rendered at the time of 2011 to 2014. There is no record of services after that date and there is no proof that any payment was made. Although Mr. Retana was not receiving attendant care after 2014, surveillance shows him while out shopping buying shoes with laces rather than “slip-ons”. Mr. Retana’s wife testified that (despite the fact that he was not receiving attendant care services) he was always well-groomed.

There are also services allegedly provided for the dates while Mr. Retana was in Guatemala in August to September 2011 and on three subsequent occasions.

Parties’ Positions regarding Attendant Care Invoices

Coachman submits that the attendant care invoices submitted by Mr. Retana are unreliable. First, the Expenses Claim Forms were not created until 4 years post-accident on February 18, 2015. Yet, this Form claimed payment for services that were allegedly provided one day after the accident in July 2011. It also appears that the invoices were not created by the service care provider herself, which Ms. Escobar could not confirm during her cross-examination.

Coachman also submits that the fact that Mr. Retana, after the first accident, had no evidence of any decreased energy, decreased sleep, or any change in his mood (in the November 25, 2011 records of UHN) suggests that he did not require attendant care services. In fact, he travelled unaccompanied to Guatemala for three weeks in September 2011, where there is no indication he received any attendant care services during this time there, nor on any of the three subsequent occasions on which he travelled there alone.

Mr. Retana submits that from August 26, 2012 to May 1, 2014, he is entitled to $5,340 in incurred expenses provided by Ms. Escobar, for personal care services.

I found Ms. Escobar’s testimony to be inconsistent, vague and not credible. As a result, I find that Ms. Escobar’s evidence was not persuasive regarding her alleged provision of attendant care services to Mr. Retana.

Reports submitted by Mr. Retana:

In support of Mr. Retana’ claim for attendant care benefits, Mr. Retana relies on the reports and Form 1’s completed by Punita Bharwani (now Punita Laurier) and Joanne Nunn. Mr. Retana claims that he requires assistance with dressing his lower extremity, grooming (toenail clipping), meal preparation, bathroom cleaning, and monitoring medication supply and consumption.

Coachman submits that the opinions of Ms. Laurier and Ms. Nunn do not adequately consider Mr. Retana’s pre-accident history or objective evidence of his post-accident functioning and abilities.

During Ms. Laurier’s examination-in-chief, she described her process for conducting an in-home occupational therapy assessment. Notably, at no time did Ms. Laurier indicate that she reviewed any pre-accident medical documentation such as those found in Mr. Retana’s CPP and WSIB files.

While Ms. Laurier did have some knowledge of Mr. Retana’s 2002 workplace injury, there is no evidence that Ms. Laurier had any information about the extent that those injuries affected Mr. Retana’s functioning prior to the 2011 and 2012 motor vehicle accidents. When asked about Mr. Retana’s pre-accident functioning, she said “I don’t have a full understanding of exactly what his functioning was.”⁶⁸

Further, Ms. Laurier admitted that she did not know that Mr. Retana had issues with his left upper extremity prior to the 2011 and 2012 accidents, which was due to overcompensation for the injured right arm.⁶⁹ Ms. Laurier also admitted that she did not know that the October 23, 2009 report of Dr. Kljenak indicated that Mr. Retana had difficulty cleaning, cooking and taking showers prior to the motor vehicle accidents.

In addition, while Ms. Laurier found that assistance with medication was required due to Mr. Retana’s cognitive issues, she admitted that she did not know that Mr. Retana was consuming marijuana on a daily basis prior to the motor vehicle accidents.⁷⁰

Joanne Nunn completed an in-home occupational therapy assessment of Mr. Retana on November 27, 2013. During her cross-examination, Ms. Nunn admitted that she never reviewed the extensive pre-accident health documentation contained in Mr. Retana’s WSIB and CPP files. She also admitted that while assistance with medication was recommended on the basis of cognitive impairments identified during testing, she did not know the cause of those impairments.⁷¹

Reports submitted by Coachman

Mr. Retana’s claim for attendant care benefits was denied by Coachman based on the section 44 In-Home Occupational Therapist Assessment Reports by Mr. Avi David Kaplun and Ms. Kathryn Blaney.

In his June 12, 2013 report, Mr. Kaplun found that attendant care services were not required with respect to Mr. Retana’s accident-related injuries. While Mr. Retana did not have functional use of his right arm, this was solely related to the workplace injury of 2002.

In her April 21, 2017 report, Ms. Blaney found that while Mr. Retana complained of ongoing pain and displayed restricted back and neck movements, he nevertheless demonstrated the basic physical abilities necessary to all aspects of self-care with modified approaches. Overall, Ms. Blaney concluded that the need for assistance that Mr. Retana reported did not appear to be the result of the motor vehicle accidents.

Conclusion:

Because Mr. Retana’s assessors were not aware of the extent of Mr. Retana’s challenges due to his workplace injuries, Coachman submits that its section 44 occupational therapy assessment reports are more reliable. I agree. I find that due to the lack of credibility of Ms. Escobar’s testimony (as described above) and the unreliability of Mr. Retana’s reports, he has not proven on a balance of probabilities that as a matter of fact an attendant care benefit was not reasonable and necessary “but for” the motor vehicle accidents of 2011 and 2012.

Is Mr. Retana entitled to the medical and cost of examination benefits he has claimed?

Law:

Under section 15 of the Schedule, which pertains to medical benefits, an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for specified medical benefits. This section is subject to monetary limits set out in section 18 of the Schedule.

Under sections 25 and 38 of the Schedule, the insurer shall pay for reasonable and necessary fees charged by a health practitioner for assessments and examinations under certain circumstances. These fees are limited to no more than $2,000 for conducting any one assessment or examination and for preparing reports in connection with it.

Analysis:

Mr. Retana’s Position:

Mr. Retana submits that the medical benefits he is claiming for chiropractic services and physiotherapy, provided by Revive Health Centre are reasonable and necessary. He testified that he found the chiropractic services helpful even though he did not return to pre-accident functioning.

He submits that the denials of chiropractic treatment (based on insurer’s examinations after one approved treatment plan) were improper and Coachman ought to have known that his previous injuries related to his workplace accident and his first motor vehicle accident were barriers to his recovery.

Although not technically in dispute, Mr. Retana has claimed a medical benefit for psychological treatment based on the psychological assessment report of Dr. Rivers dated June 18, 2013. Dr. Rivers diagnosed Mr. Retana with the following impairments resulting from the motor vehicle accident:

• Adjustment Disorder (no objective measures completed)
• Depressive Episode (moderate) – (no objective measures completed)
• Ongoing (chronic) Pain
• Specific Phobia (automobile anxiety)
• Mild Cognitive Disorder

Dr. Rivers’ treatment plan recommended up to 12 one hour psychotherapy sessions to deal with these issues.

Mr. Retana points out that Dr. Notarfonzo, in her psychological insurer examination dated June 25, 2015, opined provisionally that Mr. Retana suffered an Adjustment Disorder as a result of the second motor vehicle accident and ongoing Chronic Pain which may have been an aggravation of a pre-existing disorder (from his workplace accident).

Mr. Retana submits that $3,215.61 for various assessments by Dr. Stephen Rivers, (recommended by Network Health Assessments & Rehabilitation) are reasonable and necessary given that Dr. Notarfonzo agreed that Mr. Retana met the diagnostic criteria for an Adjustment Disorder and Pain Disorder.

Mr. Retana also submits that $2,000 for the cost of the occupational therapy in-home assessment by Ms. Joanne Nunn (recommended by Options Therapy, OCF-18 dated November 14, 2013) is reasonable and necessary, given that Coachman acknowledged that Mr. Retana was outside the MIG as of December 19, 2012, (pertaining to the second motor vehicle accident).

Coachman’s Position:

Coachman submits that as of 2012, Mr. Retana was taken out of the Minor Injury Guideline (MIG) program due to his pre-existing conditions, and that it paid in excess of the $3,500.00 MIG limit in connection with Mr. Retana’s claims for medical and assessment benefits. However, it denied further treatment plans on the basis that he did not suffer any impairments as a result of the accidents or had reached maximum medical recovery from either of the two accidents.

Mr. Retana’s treatment plans for physical rehabilitation were completed by his treating chiropractor Dr. Bradley Sugar, to whom Mr. Retana made numerous accident-related complaints. Coachman’s position is that Dr. Sugar’s reports and treatment recommendations should not be given any weight, as he is not qualified to deal with psychological or physical complaints stemming from neurological injury. Further, Coachman submits that the complaints made by Mr. Retana to Dr. Sugar appear to be much more extensive than what he originally reported to other treatment providers in the first year or two post-accident, and are unsupported by objective medical evidence.

Coachman denied Mr. Retana’s treatment plans for physical rehabilitation based on several assessments under section 44 of the Schedule. These assessments were conducted by

Dr. Len Herman, chiropractor. According to his April 15, 2013 report, Dr. Herman assessed Mr. Retana in person and found no compelling objective information to show a reasonable requirement for the proposed physical rehabilitation services. He found that such services were comparable to those consumed by Mr. Retana previously. At that stage, Dr. Herman opined that the provision of further formal care was unlikely to produce objective gain.

Dr. Herman conducted paper reviews for each of the subsequent physical rehabilitation treatment plans submitted by Mr. Retana. In each, he found no further medical evidence to show that Mr. Retana would derive any benefit from further formal treatment. Further, Dr. Herman found that each subsequent treatment plan by Dr. Sugar identified the same treatment goals and recommendations. Coachman submits that Dr. Sugar has not justified his recommendations when it continues to appear as though previous facility-based treatment has provided no short or long-term benefits.

Coachman submits that Mr. Retana’s proposed treatment plan for psychological counselling was denied based on the psychological assessment report of Dr. Cathy Notarfonzo under section 44 of the Schedule.

In her August 20, 2013 report, Dr. Notarfonzo found that Mr. Retana would not benefit from further psychotherapy. Mr. Retana indicated in his assessment that he had no desire for the proposed treatment, and in fact, felt that talking about his problems would make him feel worse.

Coachman submits that Mr. Retana’s proposed treatment plan for an occupational therapy assessment was denied based on the section 44 assessment report of occupational therapist Mr. Avi David Kaplun. In his November 25, 2013 report, Mr. Kaplun found that Mr. Retana had already been assessed by himself in June 2013. In the previous assessment, he found that Mr. Retana did not require attendant care assistance. It was documented that Mr. Retana did not have functional use of his right upper extremity; however, this was entirely as a result of the workplace injury in 2002. Coachman submits that an occupational therapy assessment to determine his attendant care needs was neither reasonable nor necessary.

Conclusion:

The onus is on Mr. Retana to prove on a balance of probabilities that the medical and assessment benefits he is seeking are reasonable and necessary.

As extensively discussed above, Mr. Retana’s evidence lacked credibility. As such, I do not give much, if any weight to his self-reports to his treating chiropractor, Dr. Sugar. In addition, none of Mr. Retana’s assessors reviewed all or the majority of his WSIB or CPP files, or had an opportunity to view the surveillance evidence which showed Mr. Retana doing many of the things he claimed that he was unable to do as a result of the motor vehicle accidents. Accordingly, I give little weight to these reports. It is also noteworthy that when Mr. Retana gave evidence at his WSIAT hearing in 2014, he made no mention of the motor vehicle accidents in 2011 and 2012, or to lower back pain. I find that Mr. Retana has not shown as a matter of fact that the medical benefits for physical rehabilitation that he is seeking would not be reasonable and necessary “but for” the motor vehicle accidents of 2011 and 2012.

Also as noted above, Mr. Retana stated that he had no desire for the proposed psychological treatment and, in fact, thought it would make him feel worse. Accordingly, I find it unlikely that he would profit from it, or even be motivated to attend. In his submissions, Mr. Retana’s counsel tried to characterize Mr. Retana’s lack of desire for psychological treatment as a “cry for help.” However, I do not find this characterization persuasive. During his examination by Dr. Notarfonzo, Mr. Retana reported undergoing some previous psychological counseling in relation to his workplace injury and the motor vehicle accident in 2011. According to her report, at that time Mr. Retana stated “…I’ve been dealing with pain for more than 10 years…talking about it doesn’t work.” Accordingly, I find that Mr. Retana’s claims for a psychological assessment and treatment are not reasonable or necessary.

In addition, I agree with Coachman’s assessor, Mr. Kaplun, that any need Mr. Retana had for attendant care was based on his workplace injury in 2002. As required by the Sabadash Divisional Court decision discussed above, I do not find that Mr. Retana’s request for an occupational therapy assessment passes the ‘but for’ test. In other words, Mr. Retana has not shown as a matter of fact that he would not have required an occupational therapy assessment “but for” the motor vehicle accidents in 2011 and 2012. Therefore, I find that Mr. Retana’s claims for an occupational therapy assessment is not reasonable and necessary.

Special Award and Interest:

I have found above that Mr. Retana is not entitled to his claims for a NEB, attendant care, medical and cost of examination benefits. Accordingly, he is not entitled to a special award or interest.

EXPENSES:

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

February 24, 2020

Anne Sone Arbitrator

Date

Dispute Resolution Services Services de règlement des différends

A14-000966 and A14-001618

BETWEEN:

JOSE ARANA RETANA

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 283 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 Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Mr. Retana’s claims for benefits as a result of the motor vehicle accidents of July 24, 2011 and August 26, 2012 are dismissed.

February 24, 2020

Anne Sone Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2The Pre-Hearing Report of Arbitrator Dana Hirsh, dated May 4, 2015, Tab 1 of the Joint Brief, indicates that Mr. Retana undertook to provide particulars, in writing, of the dates and amounts of the treatment plans that correspond to the above-noted outstanding amount within 30 days of the pre-hearing discussion. I saw no evidence that this was done. Again, at the beginning of the hearing, the above-noted amount was confirmed. However, in his written submissions, Mr. Retana claimed a larger amount in connection with medical benefits. Since Mr. Retana did not comply with the pre-hearing undertaking and did not clarify the amount at the beginning of the hearing, I find that the amount in issue for medical benefits is $4,066.85, as stated above.
3. 3Report of Dr. Zafer Mian dated May 9, 2007 at page 562 of Tab 139 of the Joint Brief; Report of Dr. Zafer Mian dated November 29, 2007 at page 93 of Tab 139 of the Joint Brief.
4. 4Report of Dr. A. Birnbaum dated December 22, 2008 at page 73 of Tab 128 of the Joint Brief.
5. 5Report of Dr. Zafer Mian dated November 29, 2007 at page 93 of Tab 139 of the Joint Brief.
6. 6Report of Dr. Zafer Mian dated November 29, 2007 at page 95 of Tab 139 of the Joint Brief.
7. 7Report of Dr. Jason Roos dated September 29, 2009 at page 350 of Tab 138 of the Joint Brief; WSIAT decision dated June 19, 2014 at paragraph 46, page 923 of Tab 138 of the Joint Brief
8. 8Report of Dr. Zafer Mian dated November 29, 2007 at page 93 of Tab 139 of the Joint Brief.
9. 9Report of Dr. Zafer Mian dated November 29, 2007 at page 95 of Tab 139 of the Joint Brief; Report of Dr. Jaan Roos dated November 20, 2009 at page 343 of Tab 138 of the Joint Brief.
10. 10Report of Dr. A. Birnbaum dated December 22, 2008 at page 73 of Tab 128 of the Joint Brief.
11. 11Report of Dr. Freedman and Dr. Kljenak dated May 8, 2007 at page 683 of Tab 138 of the Joint Brief.
12. 12Report of Dr. Kljenak dated May 8, 2007 at page 683 of Tab 138 of the Joint Brief.
13. 13Report of Dr. Kljenak dated April 16, 2009 at page 384 of Tab 139 of the Joint Brief; Report of Dr. Kljenak dated October 23, 2009 at page 347 of Tab 138 of the Joint Brief.
14. 14Report of Dr. Elmaraghy dated May 30, 2008.
15. 15Report of Dr. Zurowski dated November 5, 2010, at page 322 of Tab 138 of the Joint Brief; WSIAT decision dated June 19, 2014 at paragraph 39, page 922 of Tab 138 of the Joint Brief.
16. 16LAT Transcript, page 111 of Tab 167, Joint Brief.
17. 17Report of Dr. Jaan Roos dated April 28, 2010, at page 938 of Tab 138 of Joint Brief.
18. 18Report of Dr. Zuroski dated November 5, 2010 at page 11 to 12 of Tab 135 of the Joint Brief.
19. 19Report of Dr. Said Salama (Chronic Pain) at page 5 of Tab 133 of the Joint Brief.
20. 20Report of Dr. Said Salama (Chronic Pain) at page 7 of Tab 127 of the Joint Brief.
21. 21Clinical Note of Dr. Said Salama (Chronic Pain) at pages 9 to 11 of Tab 127 of the Joint Brief.
22. 22Report of Dr. Said Salama (Chronic Pain) at page 18-19 of Tab 127 of the Joint Brief.
23. 23Report of Dr. Said Salama (Chronic Pain) at page 25-26 of Tab 127 of the Joint Brief.
24. 24UHN Clinical Record dated July 5, 2011 at page18 of Tab 135 of the Joint Brief.
25. 25Signed Statement dated November 16, 2011, at Tab 15of the Joint Brief; Clinical Records of Dr. MacIntyre dated September 29, 2011, page 36 at Tab 127 of the Joint Brief.
26. 26Clinical Note of Dr. Said Salama dated September 28, 2011, page 34 of Tab 127 of the Joint Brief.
27. 27Clinical Notes and Records of UHN, page 18 to 19 of Tab 135 of the Joint Brief.
28. 28LAT Hearing Transcripts dated October 18, 2017, at page 67.
29. 29Clinical Notes and Records of UHN, page 18 to 19 of Tab 135 of the Joint Brief.
30. 30Dufferin Medical Pharmacy History, Tab 133 of the Joint Brief.
31. 31Radiology Report dated July 28, 2011, at page 27 of Tab 127 of the Joint Brief.
32. 32Insurer’s Orthopaedic Assessment Report of Dr. Rathbun dated March 5, 2012 at Tab 20 of the Joint Brief.
33. 33Ambulance Call Report dated August 26, 2012 at Tab 125 of the Joint Brief.
34. 34Property Damage File re 2012 Accident, at Tab 18 of the Joint Brief.
35. 35Humber River Emergency Room Record dated August 28, 2012 at page 1 of Tab 134 of the Joint Brief.
36. 36Signed Statement dated October 17, 2012, at Tab 17 of the Joint Brief.
37. 372012 SCC 32, [2012] 2 S.C.R. 181.
38. 382015 ONCA 165.
39. 39(FSCO A14-001839, March 7, 2016).
40. 40(FSCO P16-00029, September 18, 2017).
41. 412019 ONSC 1121.
42. 421996 CanLII 183 (SCC).
43. 432008 ONCA 269, 90 OR (3d) 689.
44. 44I note that in the Licensing Appeal Tribunal case which dealt with Mr. Retana’s claim that he met the test under the Schedule for catastrophic impairment, Adjudicator Shapiro found that Mr. Retana’s functional limitations are not from the 2011 and 2012 accidents in any material way. So even using the “material contribution” test, Adjudicator Shapiro found that the 2011 and 2012 motor vehicle accidents did not affect Mr. Retana sufficiently to meet the catastrophic impairment test.
45. 45FSCO Transcript dated October 18, 2017 at Page 87; LAT Transcript dated August 1, 2017, at page 117 of Tab 167 of the Joint Brief.
46. 46Clinical Notes and Records of UHN, page 18 to 19 of Tab 135 of the Joint Brief.
47. 47Clinical Notes and Records of UHN, page 18 to 19 of Tab 135 of the Joint Brief.
48. 48FSCO Transcript dated October 16, 2017 at page 119.
49. 49UHN Clinical Record dated July 5, 2011, page 18 of Tab 135.
50. 502018 CanLII 139515.
51. 51I note that the “but for” test for causation now applies due to the Sabadash decision by the Divisional Court.
52. 52Tab 20, Tab 26, Tab 119 and 122 of the Joint Brief.
53. 53Dufferin Medical Pharmacy History, page 1 of Tab 133 of Joint Brief.
54. 54This was not accepted by Adjudicator Shapiro in his decision regarding Mr. Retana’s claim that he was catastrophically impaired as a result of the car accidents.
55. 55In Taylor and Pembridge Insurance Company of Canada, (FSCO A12-004886, June 11, 2014) Arbitrator Huberman found at paragraph 216 that he did not accept Mr. Retana’s expert evidence (Dr. Lisa Becker, physiatrist at Omega) on the basis that Dr. Lisa Becker did not conduct the requisite analysis in respect of a pre-existing medical condition or infirmity as required by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993.
56. 56Report of Dr. Said Salama (Chronic Pain) at page 5 of Tab 133 of the Joint Brief.
57. 57Section 12 (1) of the Schedule.
58. 58Heath v. Economical Mutual Insurance Company 2009 ONCA 391, [2009] 95 O.R. (3d) 785 (Ontario Court of Appeal); Morelli and Zurich Insurance Co., (FSCO A97-001997, January 14, 2000), Nguyen and Economical Mutual Insurance Company (FSCO A11-002508, August 28, 2013), affirmed on Appeal (FSCO P15-00029, May 15, 2015).
59. 592009 ONCA 391, [2009] 95 O.R. (3d) 785.
60. 602009 ONCA 391.
61. 61This reduction in pain may have been due to nerve blocks which were subsequently discontinued.
62. 62Clinical Notes and Records of UHN, page 18 to 19 of Tab 135 of the Joint Brief.
63. 63Clinical Notes and Records of UHN, page 18 to 19 of Tab 135 of the Joint Brief.
64. 64Clinical Note of Dr. Paul Duchastel dated September 29, 2011, page 36 of Tab 127 of Joint Brief.
65. 65Transcript of LAT hearing, page 366 of Tab 167.
66. 66Transcript of FSCO hearing, page 143 to 146 at Tab D.
67. 67Transcript of FSCO hearing, page 65 to 66 at Tab E.
68. 68Transcript of FSCO Hearing dated October 17, 2017, page 181.
69. 69Transcript of FSCO Hearing dated October 17, 2017, pages 228 to 229, 231.
70. 70Transcript of FSCO Hearing dated October 17, 2017, page 181.
71. 71Transcript of FSCO Hearing dated October 17, 2017, pages 228 to 229, 231.