M. M. v. Northbridge Personal Insurance Corporation, 2017 CanLII 12608

Licence Appeal Tribunal

Date: 2017-02-14

Tribunal File Number: 16-000682/AABS

Case Name: 16-000682 v Northbridge Personal Insurance Corporation

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

Between:

M. M.

Applicant

and

Northbridge Personal Insurance Corporation

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

Representative for the Applicant: Carlos Ortiz

Counsel for the Respondent: Shikha Sharma

HEARD: Written Hearing: October 14, 2016

Overview:

1The applicant was injured in a motor vehicle accident on August 28, 2015. He applied for benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). Following the accident, the applicant applied for and received income replacement benefits until January 28, 2016. On that day, Northbridge Personal Insurance Corporation (“Northbridge”) terminated the applicant’s benefit. The applicant disputes this termination and submits that he should be paid an income replacement benefit from January 29, 2016 to date and ongoing.

2The weekly amount of the income replacement benefit is not in issue. The only issue is entitlement.

Issue:

3Is the applicant entitled to an income replacement benefit in the amount of $389.11 per week from January 29, 2016 to date and ongoing?

4Is the applicant entitled to costs?

Result:

5The applicant is not entitled to an income replacement benefit in the amount of $389.11 per week from January 29 to the date of this decision. The applicant has not shown that he is substantially unable to perform the essential tasks of his pre-accident employment.

6The applicant is not entitled to costs because Northbridge’s conduct in the proceeding has been neither unreasonable or in bad faith.

Discussion:

7The scope of the income replacement issue requires clarification at the outset. The time period of entitlement that will be decided in this hearing will be January 29, 2016 to the date this decision. It is not January 29, 2016 to date and ongoing, which was the basis of the parties’ submissions.

8The test for entitlement to payment of an income replacement benefit is set out in s. 5(1) of the Schedule. In the applicant’s case, s. 5(1) provides that he is entitled to an IRB if he can prove on a balance of probabilities that he was employed at the time of the accident and, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a cleaner.

9For analytical purposes, the inquiry can be divided into three steps:

1. Was the applicant employed at the time of the accident;
2. Causation; and
3. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment

1. Was the Applicant employed at the time of the accident?

10It is uncontested that the applicant was employed at the time of the accident as a cleaner. This information is detailed in his affidavit and the report by Mr. Polygenis. Mr. Polygenis is a physiotherapist hired by Northbridge to conduct a functional ability evaluation on the applicant.

2. Causation

11The applicant is entitled to an IRB only if the accident caused him to sustain an impairment that renders him unable to work as a cleaner, and the inability to work manifests within 104 weeks of the accident. I conclude that if the applicant suffers from in impairment that renders him unable to work as a cleaner, it was caused by the motor vehicle accident and manifested within 104 weeks of the accident. The extent to which that impairment that renders him unable to work as a cleaner will be discussed with in step 3, below.

12Northbridge submits that the applicant has failed to prove causation entirely. In its view, the applicant has failed to show that he did not suffer from his alleged impairment prior to the motor vehicle accident. As a result, Northbridge submits, the applicant cannot show that the motor vehicle accident caused his impairments.

13The applicant submits that his pre-accident medical history is unremarkable. His OHIP summary shows that most of his pre-accident medical visits were in relation to hypertension, and there were no visits in relation to the impairment of which he now complains. The obvious inference is that the intervening act of the motor vehicle accident caused the alleged impairment. Dr. Wong, a physiatrist hired by the applicant, made a similar conclusion in his report dated September 16, 2016.

14I agree with the applicant. There is a lack of a connection between his pre-accident medical history and the alleged impairment. I am comfortable inferring that the intervening act of the motor vehicle accident is responsible for the alleged impairment. There is one exception to this conclusion: the results of the CT scan, which I will discuss below.

15The parties’ submissions raised two concerns that do not materially affect my decision on this issue. I will address the concerns to provide full response to the parties’ submissions. First, Northbridge submits that the proper test for causation is the ‘but for’ test. The ‘but for’ test requires the applicant to prove that but for the motor vehicle accident he would not suffer an impairment which causes the complaints he puts forward as the basis for his claim for Income Replacement Benefits. This is more stringent than the material contribution test. The material contribution test requires the applicant to prove that the motor vehicle accident materially contributed to the impairment which causes the complaint he puts forward as the basis for his claim for Income Replacement Benefits. The applicant has proven causation on either standard.

16Second, the applicant has submitted a CT scan report dated March 18, 2016 showing “atrophy white matter changes in the basal ganglia”. He attributes this to the concussion, headaches, and dizziness which he has suffered from since the accident. Northbridge takes issue with the applicant’s doctor’s ability to draw conclusions from the CT scan. I assign no weight to the CT scan because I cannot conclude that the changes in the basal ganglia were caused, even materially, by the accident. This injury is far too severe for me to draw such a conclusion based on the OHIP summaries. More information about the applicant’s pre-accident history is needed.

17I need no such pre-accident medical history for the applicant’s other alleged impairments.

3. Does the Applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?

18To answer this question in the applicant’s case, two determinations are required. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of his employment?

(a) What are the essential tasks of the Applicant’s employment?

19Based on the functional ability evaluation conducted by Mr. Polygenis, I find as a fact that the essential tasks of the applicant’s employment as a cleaner are:

1. Cleaning lobby and common areas of condominium buildings;
2. Vacuuming carpeted areas, which involves pushing and carrying an upright canister vacuum that weighs approximately 20 pounds;
3. Sweeping underground garage floors;
4. Cleaning washrooms and kitchenettes in common rooms; and
5. Garbage disposal – emptying and cleaning receptacles. Removing garbage bags and placing them in designated areas. The bags could weigh up to 20 pounds.

(b) Is the Applicant substantially unable to perform the essential tasks of his employment as a cleaner?

20In the circumstances of this case, I must determine if the applicant suffers from a substantial inability. The applicant principally provides two sets of medical documentation in support of his position. The applicant’s family doctor, Dr. Ullah, prepared a Disability Certificate dated September 19, 2015. This was shortly after the accident. The Disability Certificate diagnosed the applicant with:

• Whiplash Wad 2
• Sprain/Strain Thoracic Spine
• Sprain/Strain Lumber Spine
• Sprain/Strain of Right Hip
• Sprain/Strain of Knee

Dr. Ullah also found that the applicant developed dizziness that affected his ability to perform physical activities and lift weight. Dr. Ullah concluded that the applicant suffered a substantial inability to perform the essential tasks of his employment and a complete inability to carry on a normal life.

21I accept Dr. Ullah’s diagnoses of whiplash, dizziness, and sprains and strains for the time period around September 2015. However, I place little weight on it. I fail to see how Dr. Ullah was able to draw such far reaching conclusions regarding the applicant’s ability to perform the essential tasks of his employment and carrying on a normal life. These conclusions require a thorough understanding the tasks involved in the applicant’s employment and his daily routine. There is no indication that Dr. Ullah possessed such a thorough understanding. Dr. Ullah’s willingness to draw far reaching conclusions on limited information discourages me from placing anything more than the minimal weight on all conclusions drawn in the Disability Certificate.

22The applicant retained Dr. Wong, a physiatrist, to prepare a report on his condition. The report dated September 6, 2016 diagnosed the applicant with the following as a result of the motor vehicle accident:

• Chronic pain syndrome
• Myofascial injury of the cervical spine
• Cervicogenic headache
• Myofascial injury of the thoracic spine muscles
• Myofascial injury of the lumber spine paraspinal muscles and gluteal muscles with referred pain to the right leg
• Post-traumatic insomnia
• Psychological problems (anxiety related)

23Dr. Wong’s report concluded that the applicant is unable to perform physically demanding jobs. It further concluded that the applicant cannot return to any reasonable work given his education, training, and experience.

24I do not accept the diagnoses or conclusions provided in Dr. Wong’s report. The report fails to adequately link Dr. Wong’s tests to his diagnoses and conclusions. The absence of such a link prevents me from assessing the soundness of the Dr. Wong’s report. By way of example, Dr. Wong conducted a range of motion test. He measured the degree to which the applicant could move various parts of his body. Dr. Wong also recorded the applicant’s self-report of physical and psychological pain. On the basis of this evidence, and a review of the applicant’s medical reports and documentation, Dr. Wong diagnosed the applicant with, among other things, chronic pain syndrome. I am unable to determine how the range of motion test, or any of the other information received by Dr. Wong, contributed to his diagnoses of chronic pain syndrome. A link between the tests conducted and the diagnoses and conclusions drawn is necessary for reliance on the report.

25My decision turns on the rejection of Dr. Wong’s report. Without the report, or a more credible report with similar conclusions, I am unable to conclude that the applicant is substantially unable to perform the more physically onerous essential tasks of his employment, like vacuuming and garbage disposal.

26Northbridge retained two medical examiners to assist in determining the applicant’s entitlement to benefits. Mr. Polygenis was hired to conduct a functional abilities assessment. Mr. Polygenis observed that the applicant was able to complete sedentary to light physical work during the assessment. However, Mr. Polygenis believed that the applicant demonstrated a sub-maximal level of effort. In all, Mr. Polygenis was unable to conclude that the applicant required a physical or medical restriction with regard to returning to his pre-accident employment.

27Dr. Oshidari, a physiatrist, conducted a physiatrist assessment report. Dr. Oshidari ultimately prepared one report and two addenda. The first report did not find any evidence of neuromusculoskeletal abnormalities. The first addendum was released to provide a new opinion on the applicant in light of the CT scan. Dr. Oshidari’s opinion did not change. I do not assign any weight to the first addendum, however, as I fail to see how Dr. Oshidari, a physiatrist, possessed the expertise required to interpret the neurological information in the CT Scan. It may be that Dr. Oshidari did possess the requisite expertise. I did not see that in the evidence though. The second addendum was released to provide a new opinion in light of Dr. Wong’s report. Dr. Oshidari’s opinion remained unchanged and he provided pointed a critique of Dr. Wong’s report.

28I accept the conclusion of Dr. Oshidari’s first report, which is dated January 11, 2016. To be clear, that report concluded that there was no specific neuromusculoskeletal abnormality. Dr. Oshidari linked the tests he conducted on the applicant to the conclusions he drew. I accept his conclusions as sound and prefer them to the applicant’s evidence.

29The applicant is not substantially unable to perform the essential tasks of his employment. Having rejected Dr. Wong’s conclusions, I find only that the applicant suffers from the sprains and strains of his spine, hip and knee. The injuries correspond with the diagnoses in Dr. Ullah’s Disability Certificate. The sprains and strains do not, in my view, render the applicant substantially unable to perform the essential tasks of his employment.

Costs

30The applicant seeks costs under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) (“LAT Rules”). The applicant alleges that Northbridge has acted unreasonably and in bad faith by withholding payment of the income replacement benefits despite having in its possession medical and other evidence upon which it could reasonably conclude that the applicant is entitled to income replacement benefits. The costs claim must fail for two reasons. First, Rule 19.1 allows for costs only in relation to conduct “in a proceeding” before the Tribunal. The conduct about which the applicant complains occurred before the Tribunal’s proceeding; that is, before the date on which an application was made at the Tribunal. Second, even if Northbridge’s conduct was in the proceeding, it is not unreasonable or in bad faith. With the same information before me, I have made the same decision as Northbridge on the income replacement benefits issue.

The applicant’s second set of Reply submissions

31The Tribunal conducted a written preliminary issue hearing on October 14, 2016. The hearing concerned a number of related disclosure issues, including whether Dr. Wong’s report should be admitted into evidence despite its non-compliance with the rules of service for experts reports (Rule 10 of the LAT Rules). The Tribunal released a decision on November 29, 2016, allowing Dr. Wong’s report into evidence and, as remedy, providing Northbridge with 30 days to submit responding material. The Tribunal provided no other order in relation to Dr. Wong’s report.

32Northbridge provided responding material to Dr. Wong’s report on December 22, 2016. The applicant provided submissions in reply to Northbridge’s responding material on January 10, 2017.

33Northbridge asks that I exclude from consideration the applicant’s reply submissions dated January 10, 2017. I agree. The applicant’s January 10, 2017 reply submissions did not identify any issues raised for the first time by Northbridge. The applicant simply used the opportunity to provide submissions about Dr. Wong’s report for a third time. To do is an improper use of the right to reply and I give the submissions no consideration.

34In any event, even if I were to include the applicant’s January 10, 2017 submissions, they do not change my decision.

Conclusion:

35The applicant is not entitled to an income replacement benefit in the amount of $389.11 per week from January 29 to the date of this decision. The applicant is not entitled to costs.

Released: February 14, 2017

__________________________

Chris Sewrattan, Adjudicator