A. B. v. Aviva Insurance Company of Canada, 2016 CanLII 96166

Licence Appeal Tribunal

Tribunal File Number: 16-000342/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

A. B. Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: J.R. Richards

APPEARANCES:

For the Applicant: Georgina Masgras, Counsel Catherine Raver, Paralegal

For the Respondent: Anne Fyfe, Counsel Jennifer Walters, Representative

Dari Interpreter: Mohammad Abdulaziz

Observer: Jeanie Theoharis, Member LAT

HEARD: Hamilton: September 20, 2016

REASONS FOR DECISION AND ORDER

Overview:

1The applicant was involved in a collision on January 17, 2015. At the time of the accident the applicant was 53 years old. After the accident the applicant complained of headache, neck and back pain, as well as pain in both shoulders. His doctor diagnosed him with soft tissue sprain and strains. The applicant’s complaints increased over time, with his family doctor eventually diagnosing him with chronic pain.

2The applicant seeks a non-earner benefit, a medical benefit and interest on any overdue payments. His claims are based on his assertion that his pain has left him completely unable to live a normal life and he can no longer engage in the activities in which he engaged prior to the accident.

3The respondent alleges that the applicant has presented inconsistent information throughout his claim. In its view, the applicant has always been, and remains able to perform his self-care tasks and engage in the activities in which he engaged prior to the motor vehicle accident. The respondent believes that its medical reports and surveillance of the applicant demonstrate that the applicant is not entitled to the benefits he claims.

Issues:

4The issues in this hearing are:

5Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from November 17, 2015 to date and ongoing?

6Is the applicant entitled to a medical benefit in the amount of $267.94, being the balance of transportation costs for a chronic pain assessment by Dr. Brown, dated November 20, 2015?

7Is the applicant entitled to interest on any overdue payments?

Result:

8The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from November 17, 2015 to date and ongoing.

9The applicant is not entitled to a medical benefit in the amount of $267.94, being the balance of transportation costs for a chronic pain assessment by Dr. Brown, dated November 20, 2015.

10The applicant is not entitled to interest on any overdue payments.

Preliminary Issues

Expert Witnesses

11On September 6, 2015, the applicant requested an adjournment to allow Drs. Charbonneau and Brown to testify in person, which was denied. The applicant renewed the adjournment request at the hearing, asserting that he would be denied effective and proportional representation if his witnesses were not allowed to testify in person. I asked the applicant’s counsel if she believed that the expert’s reports spoke for themselves. She stated she believed they did.

12I denied the applicant’s adjournment request. It is common practice for parties to rely on experts’ reports and forego an expert testifying in person. In many instances, where a report does not contain difficult to understand or controversial information, an expert’s oral testimony has little to add. The applicant did not state that the experts’ oral evidence is critical to understanding the issues in dispute. On the contrary, the applicant stated that the expert reports speak for themselves. As such, farness and efficiency require that the hearing proceed as scheduled. I will rely on Dr. Brown’s and Dr. Charbonneau’s reports without their oral testimony.

13The applicant also objected to the respondent’s witnesses, Ms. Lisa Slapinsky, occupational therapist, and Dr. Alborz Oshidari, giving evidence in person at the hearing. The applicant objected to the respondent’s witnesses on the basis that the respondent had not provided identification and disclosure of its expert witnesses as required by Rules 10.2 and 10.3 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”). The applicant further argued that allowing the respondent’s witnesses to testify in person, while not affording him the same right, deprives him of proportional and fair representation.

14I find that, even though the respondent declared at the Case Conference in this matter that it would call Ms. Slapinsky and Dr. Oshidari as witnesses, it did not comply with the Tribunal’s disclosure requirements. The respondent did not provide a signed statement to the Tribunal acknowledging the experts’ duty to be fair, objective and non-partisan.

15As with the applicant, the respondent did not indicate to me that its witnesses would add anything to their reports through their oral testimony. Similar to my finding concerning the applicant’s witnesses, I find that the respondent’s expert evidence can be effectively introduced through their reports only. I will not permit Dr. Oshidari and Ms. Slapinsky to testify in person and will rely on their reports.

Surveillance Video

16The applicant objects to the respondent’s surveillance being accepted as evidence in this hearing for a number of reasons. First, the applicant asserts that he was not given an opportunity to adequately reply to the surveillance evidence. Second the applicant states that the respondent has not followed Rules 10 and 20 - dealing with experts and disclosure, respectively. Third, the applicant states that the surveillance investigator was not made available to testify.

17I find that the respondent did not follow the Tribunal’s Rules when disclosing the surveillance evidence. It did not disclose information about its surveillance expert as required by Rule 10. Nor did it disclose at the Case Conference its intent to rely on the surveillance, as required by Rule 20.

18Although I find that the respondent did not comply with the Rules, its breach is not so serious as to warrant excluding relevant evidence. The surveillance evidence purports to show the applicant working and directly addresses the applicant’s credibility on a material matter in this case. I find that the value of the evidence outweighs any prejudice the applicant suffered as a result of the respondent’s breach.

19Even though the respondent did not indicate at the Case Conference stage that it intended to rely on the surveillance, it did serve the evidence prior to the hearing. The applicant was given an opportunity to respond to the surveillance when the respondent served the evidence and will be given another opportunity to respond in the hearing.

20I also find that the failure of the respondent to make the surveillance investigator available to testify does not warrant excluding the surveillance evidence. Surveillance investigators are generally cross-examined on the authenticity of a record or the methods the investigator employed. In this case, the applicant has not challenged the authenticity of the record, nor has he asserted that he was not the individual appearing in the photographs and videos. With the applicant not challenging the surveillance on these grounds, I admit the evidence. I will address any inconsistencies or other issues as warranted.

Evidence and Analysis:

Non- Earner Benefit

The test for non-earner benefits

21The Schedule¹ makes provision for the payment of a non-earner benefit when an insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after an accident. The Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, and only 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.

22I find that the applicant has not presented sufficient evidence to persuade me that he is continuously prevented from engaging in substantially all of the activities in which he engaged prior to the accident.

23The factors that should be considered when determining entitlement to a non-earner benefit are articulated in Heath v. Economical Mutual Insurance Company² and I paraphrase them here:

• Start the analysis by comparing a claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.
• The analysis requires more than taking a snap-shot of a claimant’s life in the timeframe immediately preceding the accident.
• All of a claimant’s pre-accident activities should be considered when determining whether a claimant is able to engage in “substantially all” of his pre-accident activities.
• Greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life.
• A claimant must establish that the changes amount to being continuously prevented from engaging in substantially all of his or her pre-accident activities.
• “Engaging in” activities means more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The manner in which the activity is performed and the quality of the post-accident performance must be considered.
• Where pain is a primary factor, one must consider whether the pain practically prevents an individual from engaging in pre-accident activities.

Pre and post-accident activities and life functions

24On direct examination, the applicant stated that he was in good health prior to the motor vehicle accident. He could go anywhere, he spent time with friends, and he did everything at home by himself.

25In his words, a typical day prior to the accident consisted of spending time with his friends, shopping, assisting his sick wife, and driving his children from one place to another. The applicant stated that he helped his wife with booking her appointments, going to doctors, taking showers, and dressing her. He reported to an occupational therapist that he held his wife’s hand during stair walking and car transfers and drove her to medical appointments.

26The applicant’s daughter swore an affidavit about her father’s pre and post-accident life that supported his claims.

27The applicant testified on direct examination that after the motor vehicle accident his life has been stressful. He cannot sleep at night because of pain, and he cannot carry heavy things. He cannot drive long distances because of his shoulder pain. He tries to help his wife by making tea, and he attempts to help her shower and dress. He holds her hands when getting into the car.

28The applicant reported in September 2015³ that he now drives only locally as needed, as he is fearful another collision will occur. He continues to enjoy seeing his family, but now sees them less often due to his reduced sitting tolerance. On a typical day he is up at 5 or 6 a.m. He walks in the backyard for 5 to 10 minutes. He grows tired and lies down for 1 to 2 hours. His children make breakfast. He stays home and watches television, or lies on the couch or bed for the bulk of the day. The family makes dinner and he is in bed at 10 or 11 p.m.

29The applicant’s daughter stated that since the accident the applicant has been moody. He is easily angered and he is not mentally or emotionally stable. He no longer does any heavy lifting. She stated that he has problems sitting for long periods of time.

Medical evidence both pre and post-accident

The applicant’s family doctor

30In reviewing the clinical notes and records of the applicant’s family physician, I note that the applicant complained of left knee and shoulder pain prior to the motor vehicle accident.⁴ The applicant requested a stronger painkiller in October 2013 to help him deal with his back pain. He complained of left shoulder pain and had an ultrasound of the shoulder in October 2014. The results were normal.

31After the motor vehicle accident, the applicant’s doctor ordered a right shoulder ultrasound and a left shoulder ultrasound and x-ray, all of which showed normal findings. The family doctor also conducted a left shoulder exam, which suggested rotator cuff disease. The applicant’s family doctor diagnosed soft tissue strain and sprain related to the motor vehicle accident. By January 26, 2015, the applicant began complaining of nightmares and vision issues to his family doctor. In March 2015 the applicant complained of right knee pain radiating to his right foot, limited range of motion in his right knee and stiffness in his fingers. In May and June 2015 the applicant’s family doctor diagnosed the applicant with chronic pain, as the applicant still complained of neck, back, and shoulder pain. A left shoulder ultrasound still showed normal results. The doctor continued to prescribe Lyrica and in June 2015 prescribed Tylenol with codeine.

Dr. William G. Bensen

32The applicant’s family doctor referred the applicant to Dr. William G. Bensen, a rheumatologist, who wrote a report dated September 11, 2015.⁵ Dr. Bensen diagnosed the applicant with left shoulder capsulitis (“frozen shoulder”) and right trochanteric bursitis (hip inflammation). Dr. Bensen treated the applicant with an injection. Although the notes are unclear, it appears that Dr. Bensen administered more than one injection. In a follow-up note on April 18, 2016, Dr. Bensen’s office noted that the applicant still complained of left shoulder and right hip pain and that the prior injections had not worked well. Dr. Bensen’s office referred the applicant to a pain clinic.

Dr. Stephen Brown

33Dr. Stephen Brown conducted a chronic pain assessment of the applicant on November 20, 2015.⁶ Dr. Brown noted that 10 months after the motor vehicle accident the applicant continued to suffer from low back pain, left shoulder pain, and neck pain.

34In Dr. Brown’s opinion the applicant’s physical restrictions, chronic pain, and psychological distress interfered with the applicant’s ability to care for his wife. The applicant had become deconditioned because of chronic pain and his most intimate relationships had suffered as evidenced by social withdrawal, marital discord, and sexual dysfunction. The doctor noted that the applicant may have post-concussive syndrome and recommended a consultation with a neurologist. I have no evidence that the neurological consultation ever took place.

35Dr. Brown diagnosed the applicant with: chronic pain syndrome; adjustment disorder with anxiety; chronic pain of the cervical spine, left shoulder, and lumbar spine; sleep disorder; and finger clubbing. Dr. Brown recommended a multidisciplinary pain management program.

Dr. Alborz Oshidari

36Dr. Alborz Oshidari assessed the applicant on October 18, 2015 at the respondent’s request.⁷ Dr. Oshidari found that the applicant’s perception of causing harm and his expectation of experiencing pain was a major contributing factor to his restrictions, limitations, and function. Dr. Oshidari found discrepancies between formal and informal examination when testing the applicant. Further, he found sensory abnormality that did not fit with a specific dermatomal distribution. Dr. Oshidari’s assessment found that the applicant’s complaints were not consistent with what the tests demonstrated. He found that the applicant had pre-existing shoulder and back pain, and that the applicant had sustained sprain and strain of his cervicolumbar spine, with contusion of his shoulder and lower extremities. None of Dr. Oshidari’s investigations showed any abnormality and he recommended the applicant continue with a home exercise program.

Lisa Slapinsky, O.T.

37Occupational Therapist Lisa Slapinsky assessed the applicant and issued a report dated September 3, 2015.⁸

38Ms. Slapinsky’s testing found that the applicant’s formal range of motion was consistent with informal testing. The applicant presented with some range of motion limitations and his movement was limited by pain symptoms.

39During the assessment the applicant demonstrated a sampling of self-care and household activities as well as functional mobility without difficulty. Given that the applicant demonstrated the ability to engage in his pre-accident activities from a functional perspective, Ms. Slapinsky found that he did not suffer from a complete inability to carry on a normal life.

40Ms. Slapinsky again assessed the applicant on March 23, 2016 to determine if he required attendant care assistance.⁹ Her findings and issues in that assessment were similar to her prior assessment, except that the applicant seemed more pain focussed. However, he demonstrated the ability to perform self-care tasks, although slowly and with pain. She determined that he did not require any services or devices to return to his personal care tasks.

Entitlement to Non-Earner Benefits

41In arbitration hearings an applicant’s credibility is vital, particularly so when there are competing medical opinions. As stated in Faryna v. Chorny:¹⁰

“The credibility of [an] interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried the conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, 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 in that place and in those conditions.”

42Although the way a witness tells a story may be relevant in assessing credibility, the better approach is to test the witness’ evidence for internal consistency and consistency with known facts, and the facts established in the case.

43The respondent conducted surveillance of the applicant on August 18, 19, and 20, 2016. The surveillance clearly shows the applicant working as a delivery driver for a Pizza Nova restaurant. On August 18, 2016 the surveillance shows the applicant worked from at least 3:46 p.m. to 11:00 p.m. During the shift, the applicant broke down boxes to put in a large garbage bin behind the restaurant. He delivered several pizzas. He mopped the floor of the restaurant on two occasions. He also performed a full squat in order to clean his car’s tires for approximately 10 minutes. At all times on this day the applicant appeared comfortable. He put his arm above his head, carried packages, and cleaned. From 9:54 p.m. to 10:28 p.m. the applicant sat with a co-worker without discomfort after a day’s work. During the surveillance the applicant did not appear to require a break or to pace himself.

44On the next day, August 19, the applicant swept the sidewalk in front of his home, including bending down to pick up debris. He cleaned his car for approximately 1 hour, including extensive squatting to clean his car tires. By 4 p.m. the applicant was at work, again making deliveries. On the second day of work the applicant appeared to suffer no ill effects from the previous day’s work. On August 20 the applicant carried a baby without any apparent difficulty and was back to work again later that day. On August 23 the applicant appeared to have a leisurely day socializing.

45The applicant claims a non-earner benefit, which requires him to suffer a complete inability to carry on a normal life. In response to the surveillance evidence the applicant asserts that staying inactive at home has become stressful and that heat relieves his pain. He states that he took an unpaid position at Pizza Nova because the pizza ovens would provide heat and alleviate his pain. He also does yard work in midday because of the positive effects of the heat. The applicant provided no employment information to confirm his status with Pizza Nova, nor evidence from a medical practitioner recommending what appears to be strenuous work.

46I find that the applicant’s story is not consistent with the totality of the evidence in this case. The surveillance video shows that the applicant is able to work and engage in fairly strenuous physical activity. As such, I do not accept the applicant’s explanation for his working, gardening and cleaning his car.

47I have concerns about the Applicant’s work at the Pizza Nova. The applicant’s work raises the possibility that he may have been working prior to, or immediately following, the accident. I do not have any evidence to support this speculation, but it does reflect on the applicant’s credibility in this case.

48The applicant claims that he does not get paid for his time at the restaurant and works there because the oven provides heat, which alleviates his pain. It is a reasonable inference that the applicant’s activities at the Pizza Nova shown on the surveillance evidence are paid duties. The applicant’s explanation that he volunteers at a commercial operation because of the pain-relief from the heat of the ovens is contradicted by the significant periods he spent driving delivering pizzas, away from the ovens. The applicant was aware of this surveillance evidence in advance of the hearing, but provided no evidence to corroborate his assertion this is unpaid work. Although the applicant is seen driving for significant periods of time delivering pizzas, he also maintained up to the hearing that his driving tolerance is compromised because of his impairments.

49Pain is subjective. The applicant reported pain to the medical practitioners who assessed him. Notably, the applicant reported up to and during the hearing that his pain has limited his ability to function as he did prior to the accident. However, objective testing of the applicant, such as x-rays and ultrasounds showed normal results. A left shoulder ultrasound in October 2014 showed normal results. As did a right shoulder ultrasound and x-ray, which were conducted immediately following the accident. A left shoulder ultrasound in June, 2015 also showed normal results. Dr. Stephen Brown recommended follow-up with a neurologist to address the applicant’s chronic pain. I also have no evidence that the applicant sought such objective testing.

50When assessed by the occupational therapist - who engaged in physical testing of the applicant, rather than relying on self-reports - the applicant demonstrated self-care and the ability to engage in household activities without difficulty. He demonstrated the ability to engage in his pre-accident activities from a functional perspective.

51I prefer the evidence from the occupational therapist over the evidence of Dr. Brown, the pain specialist. Objective testing of the applicant primarily noted normal results. I assign little weight to the applicant’s subjective pain complaints. Even though the applicant was diagnosed with a left frozen shoulder and right hip pain, the occupational therapist’s assessment indicates that the applicant is able to functionally engage in his pre-accident activities of daily living.

52The evidence demonstrates that the applicant had some pain issues prior to the motor vehicle accident. These issues were more than likely exacerbated by the motor vehicle accident. However, whatever impairments the applicant has suffered have not prevented him from working as well as engaging in his pre-accident activities of daily living.

53I find that the most important activities in the applicant’s life prior to the motor vehicle accident were taking care of his wife, doing chores around his home and spending time with family and friends.

54The surveillance and the medical evidence in this case support the conclusion that the applicant would be able to continuously engage in his pre-accident activities in a meaningful way. The evidence satisfies me that the applicant can socialize, engage in housekeeping and assist his wife with mobility and caring for herself. His sitting tolerances as seen on the surveillance also show that the applicant can drive for prolonged periods without discomfort. His socializing with his work colleagues also point to his ability to interact with family and friends without discomfort.

Medical Benefit – Transportation costs

55The applicant seeks $267.94 for the balance of a taxi ride to Dr. Brown for a chronic pain assessment, dated November 20, 2015.

56The applicant lives in Hamilton and Dr. Brown’s office is in Scarborough. The applicant initially claimed $320.00 for the transportation expense and the respondent paid $52.06, relying on the Transportation Guideline¹¹ associated with the Schedule.

57The Guideline states that the insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from assessments and examinations.

58The payable amount is $0.38 per kilometer travelled with a 50 kilometre deductible for each round trip. The insurer is liable to pay for a taxi if the applicant does not own or have access to an automobile or is unable to operate one. The insurer calculated 187 kilometres round trip for the expense. After the 50 kilometre deductible, the maximum amount payable would be $52.06 (187- 50 x $0.38).

59The respondent would only be liable to pay for a taxi in this case where the applicant was unable to operate his automobile.

60I find, on a balance of probabilities that the applicant was able to drive to Dr. Brown’s chronic pain assessment. This is evident in the surveillance video which shows the applicant driving for extended periods of time.

61I find that the applicant is not entitled to $267.94 for taxi expenses to the chronic pain assessment.

Interest

62I find that that the applicant is not entitled to interest as there are no benefits payable.

ORDER

63Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs as follows.

64The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from November 17, 2015 to date and ongoing.

65The applicant is not entitled to a medical benefit in the amount of $267.94, being the balance of transportation costs for a chronic pain assessment by Dr. Brown, dated November 20, 2015.

66The applicant is not entitled to interest on any overdue payments.

Footnotes

1. 1Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 1
2. 22009 ONCA 391, para. 50
3. 3Exhibit 6
4. 4Dr. Luay Al-Kazely Clinical Notes and Records – Exhibit 1
5. 5Exhibit 2
6. 6Exhibit 3
7. 7Exhibit 4
8. 8Exhibit 6
9. 9Exhibit 8
10. 101951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)
11. 11Financial Services Commission of Ontario, Transportation Expense Guideline, Superintendent’s Guideline No. 05/10