Date: 2017-11-21

Tribunal File Number: 16-001905/AABS

Case Name: 16-001905 v Certas Home and Auto Insurance Company [formerly State Farm]

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:

Applicant

Applicant

and

Certas Home and Auto Insurance Company [formerly State Farm]

Respondent

DECISION

Adjudicator: Catherine Bickley

Appearances:

For the Applicant: Natalie Shykula-Clarke, Counsel Robert Seredynski, Student-at-law

For the Respondent: Susannah Margison, Counsel Peter Charn, Student-at-law Dunja Mullan, Representive

Interpreter: Oksana Zoriy (Ukranian interpreter)

Heard: February 27 and 28, 2017 (in person), March 16, 2017 (by teleconference) and by written submissions completed on April 10, 2017

OVERVIEW

1The applicant, [the applicant], was involved in an automobile accident on September 5, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2[The applicant] appeals Certas Home and Auto Insurance Company’s denial of income replacement benefits (“IRBs”) and five treatment and assessment plans (“OCF- 18s”). She also seeks interest and an award under section 10 of Regulation 664.

3[The applicant] testified. The other witnesses who testified on [the applicant]’s behalf were: her client, A.K.; her family doctor, Dr. Pralhad Bide; and one of her treating physicians, Dr. Marc Marciniak. Certas called Dr. Steven Baker, who was qualified as an expert in neuromuscular disease, physical medicine and rehabilitation. Certas also called Elston Coutinho, the adjuster primarily responsible for [the applicant]’s file.

4The Tribunal provided a Ukrainian interpreter. [The applicant] testified in English, occasionally relying on the interpreter to clarify specific English words and phrases.

ISSUES IN DISPUTE

5The following issues are in dispute:

1. Is [the applicant] entitled to receive an income replacement benefit in the amount of $95.12 (or other amount) per week from September 12, 2014 to date and ongoing?

2. Is [the applicant] entitled to receive payment for the following medical benefits:

a. $37.23 for chiropractic services as outlined in a September 22, 2014 OCF-18 (Bloor West Rehabilitation Centre)?

b. $2,342.78 for chiropractic services as outlined in a November 28, 2015 OCF-18 (Bloor West Rehabilitation Centre)?

c. $13,903.20 for a chronic pain treatment program as outlined in an August 10, 2016 OCF-18 (Sports Medicine Rehabilitation)?

3. Is [the applicant] entitled to receive payment for the following costs of examination:

a. $1,670.00 for a physiatry assessment as outlined in an April 22, 2016 OCF-18 (Toronto Rehabilitation Centre)?

b. $2,200.00 for a chronic pain assessment as outlined in a May 2, 2016¹ OCF-18 (Sports Medicine Rehabilitation)?

4. May [the applicant] add the issue of an award under section 10 of Regulation 664 enacted under the Insurance Act? If so, is she entitled to such an award?

5. Is [the applicant] entitled to interest on any overdue payment of benefits?

6. Is [the applicant] entitled to costs pursuant to Rule 19?

RESULT

1. [The applicant] is entitled to IRBs of $95.12 per week from September 12, 2014 to December 31, 2014.

2. [The applicant] is not entitled to payment for the chiropractic treatment outlined in the September 22, 2014 and November 28, 2015 OCF-18s from Bloor West Rehabilitation Centre. She is barred from litigating entitlement to the chronic pain treatment program outlined in the August 10, 2016 OCF-18 from Sports Medicine Rehabilitation.

3. [The applicant] is entitled to the costs of examination outlined in the April 22, 2016 OCF- 18 from Bloor West Rehabilitation Centre and the May 2, 2016 OCF-18 from Sports Medicine Rehabilitation.

4. [The applicant] may add the issue of an award under section 10 of Regulation 664 enacted under the Insurance Act. She has not established entitlement to such an award.

5. [The applicant] is entitled to interest on all benefits found owing.

6. [The applicant] is not entitled to costs pursuant to Rule 19.

ANALYSIS AND DECISION

[The applicant] is entitled to IRBs from September 12, 2014 to December 31, 2014

6[The applicant] is seeking IRBs from September 12, 2014 to date and ongoing. To determine whether she is entitled to IRBs for all or part of this period, I must determine whether during the first 104 weeks after the accident and as a result of the accident she suffered a substantial inability to perform the essential tasks of her pre-accident self-employment. I must also determine whether after the first 104 weeks she suffered a complete inability to engage in any employment or self- employment for which she is reasonably suited by education, training or experience.

7I find that [the applicant] suffered a substantial inability to perform the essential tasks of her pre-accident self-employment from September 12, 2014 to December 31, 2014. I find that she has not established that this inability continued after December 31, 2014. I find that [the applicant] has not established that she met the post-104 week test.

The essential tasks of [the applicant]’s self-employment

8At the time of the accident, [the applicant] had been self-employed for about 16 years. The Employer’s Confirmation Form (OCF-2) states that she worked as a housekeeper and describes the essential tasks as “[d]usting, cleaning, vacuuming, mopping floors, laundry.”

S.D .’s injuries and her return to work

9[The applicant] testified that immediately after the accident she had a severe headache, an injured upper back and a hurt left shoulder. She also testified that later her sleep was disrupted by neck pain, headaches and numbness in her hand.

10[The applicant] visited her family doctor, Aida Hasic, on the day of the accident. Dr. Hasic’s notes record “neck pain spasm, spec L side rad L shoulder upper arm and back of the head decreased range of motion in the neck, and occipital headache likely cervical whiplash”. Dr. Hasic saw [the applicant] again on September 22, 2014 and October 30, 2014. Her notes from these visits record some improvement in [the applicant]’s neck and head but still numbness and tingling in her fingers. Dr. Hasic’s notes from both these later visits state “Whiplash ? cerv radiculopathy”.

11A September 22, 2014 Disability Certificate (OCF-3) prepared by chiropractor Sarah Lee of Bloor West Rehabilitation Centre lists a number of injuries including post-concussion syndrome and radiculopathy. Dr. Lee indicates that the expected duration of disability is nine to twelve weeks. She also indicates that while [the applicant] is substantially unable to perform the essential tasks of her pre-accident self- employment, [the applicant] is able to return to work on modified hours and/or duties.

12Another OCF-3, dated October 6, 2014, was prepared by Dr. Hasic. This OCF-3 also indicates that while [the applicant] is substantially unable to perform the essential tasks of her pre-accident self-employment, [the applicant] is able to return to work on modified hours and/or duties. The expected duration of disability is five to eight weeks.

13[The applicant] testified that before the accident she cleaned seven to eight houses per week. She took one week off following the accident then returned to work part- time. She was able to do some but not all of the tasks she had previously done and worked more slowly than before the accident.

14A.K., one of [the applicant]’s clients, testified that after the accident [the applicant] worked more slowly, complained about pain, had trouble bending, needed help to move big furniture and had to take breaks to sit down. She testified that as of the date of the hearing, [the applicant] still takes breaks and still sometimes says she is in pain. She bought a lighter vacuum cleaner that [the applicant] can carry up and down stairs.

15Eventually [the applicant] returned to full-time work, although her evidence is unclear on the timing. Her submissions are also inconsistent on this issue, stating variously that:

a) She was working fulltime in January 2015²;

b) She worked modified hours throughout 2015 and 2016³;

c) She had returned to full time work in 2015⁴; and,

d) She only cleaned one house per day until October 2016⁵

16I accept [the applicant]’s submissions that, at least up until the end of 2014, she was able to clean only one rather than two houses per day and was not able to complete all of her usual tasks. The ability to work for only half of one’s usual work day constitutes, in my view, a substantial inability. Accordingly, I find that [the applicant] was substantially impaired until December 31, 2014. Both Dr. Hasic and Dr. Lee predicted in the OCF-3s that [the applicant] would be able to return to work sometime in November or December. I conclude that [the applicant] returned to work full-time in January 2015.

17In submissions addressing her failure to provide her 2015 income tax return, [the applicant] stated repeatedly that the document was unnecessary because she had returned to work full time by January 2015. This submission, combined with the failure to produce relevant financial information (dealt with further below), persuades me that [the applicant] has not met her onus to establish a substantial inability beyond December 31, 2014.

18I find that IRBs are payable up to December 31, 2014. I turn now to consideration of the appropriate weekly amount of IRBs.

IRBs are payable at the rate of $95.12 per week

19Certas paid [the applicant] one week of IRBs at the rate of $95.12. [the applicant] took no issue with this amount until the start of this hearing. She then asserted, for the first time, that the IRB calculation was incorrect and that she had experienced a net weekly business loss of $235.12. During her testimony, [the applicant] went into detail about her monthly earnings and expenses. She submits that IRBs are owing to the end of December 2014 in the amount of $3,744.00.

20Certas submits that [the applicant] should not be permitted to put the amount of the IRBs in issue. It asks that I draw an adverse inference from her failure to produce relevant financial information, specifically (as agreed at the case conference):

• Her income tax return from 2015

• Any records pertaining to her income loss in 2014 and 2015

• Documents used to prepare her 2014 income tax return

21None of these documents were produced to Certas or submitted to the Tribunal. In requesting that I draw an adverse inference from this failure, Certas relies on three cases. The first, Snell v. Farrel⁶ provides no assistance. The second, Parriss v. Laidley⁷ deals with failure to call a witness. In my view, the failure to call a witness is analogous to the failure to produce documents; both are a failure to bring forward evidence that is within the control of a party. Finally, in Dowell v. Millington⁸, the court holds that an adverse inference is appropriate when a party fails to lead material evidence within its control and provides no plausible reason for that failure.

22[The applicant] argues that the 2015 income tax return is unnecessary as she had returned to full-time work as of January 2015⁹. She has offered no explanation for her failure to produce the other documents.

23[The applicant] testified that she had business receipts for 2014 and 2015. She gave them to her accountant. She also filed her 2015 income tax return. Thus these documents were within her control. I draw an adverse inference from her failure to produce them.

24[The applicant] submits that her 2014 tax return allows a calculation of average monthly income and expenses for the year. The Schedule, however, does not rely on averages. The 2014 tax return does not, by itself, permit a calculation of actual post-accident income and expenses. Indeed, [the applicant]’s net business income is slightly higher in 2014 than in 2013. I have drawn an adverse inference from her failure to provide documentation in support of her assertions as to the amount of income and expenses she experienced post-accident.

25I do not accept [the applicant]’s testimony regarding her post-accident business income and expenses. [The applicant] acknowledged that receipts exist. She testified that she gave them to her accountant. I have drawn an adverse inference from the failure to produce these documents.

26[The applicant] argues, as noted above, that the 2015 information is not necessary because she was working full time. This does not deal with the period for which I have found [the applicant] to be entitled to IRBs, i.e., to December 31, 2014.

27I find that [the applicant] has not provided reliable information to persuade me that the weekly amount of IRBs should be higher than the $95.12 that Certas paid her in September 2014. Thus, the appropriate amount of IRBs is $95.12 per week.

28I turn now to consideration of the five OCF-18s in dispute.

TREATMENT PLANS (OCF-18S)

Medical/Rehabilitation Benefits

[The applicant] is not entitled to payment for the $37.23 balance of the September 22, 2014 OCF-18

29The $37.23 [the applicant] seeks is the balance of an OCF-18 for $2,380.01. Certas approved $2,342.78 for treatment and documentation expenses. It denied the remaining $37.23 on the basis that it is a brokerage fee and thus not payable under the Professional Services Guideline (FSCO Bulletin A08/14). [The applicant]’s submissions do not respond to this argument. I find that [the applicant] has not met her onus to establish that the unapproved portion is payable.

[The applicant] is not entitled to payment for the November 28, 2015 OCF-18

30[The applicant] seeks payment of a November 28, 2015 OCF-18 in the amount of $2,342.78 for chiropractic and massage treatments. Certas initially denied this OCF-18. Later, the treatment provider withdrew the OCF-18, stating, “the patient no long [sic] requires services from our clinic.¹⁰ Further, [the applicant] stated in a February 2016 letter¹¹ to Certas that this OCF-16 had been withdrawn. Finally, [the applicant]’s closing submissions do not address this OCF-18. I find that [the applicant] is not entitled to receive payment for this OCF-18.

[The applicant] is barred from litigating the denial of the August 10, 2016 OCF-18

31[The applicant] seeks payment of $13,903.20 for a chronic pain treatment program. Certas argues that [the applicant] is barred by s. 55 of the Schedule from litigating the denial of this OCF-18 because she did not attend scheduled s.44 physiatry and psychiatry assessments to assess her entitlement to this benefit. [The applicant] objects to Certas raising the s.55 issue.

32I find that Certas may raise the s.55 issue and that [the applicant] is barred from litigating the denial of this OCF-18 because she did not attend the s.44 assessments scheduled for September 2016.

33The November 1, 2016 case conference¹² included a discussion about whether a number of OCF-18s (including this one) could be added to the issues identified in [the applicant]’s application. The case conference adjudicator ruled that the additional OCF- 18s could be added and that Certas’ arguments against adding them (which included s.55) could be raised as a defence at the hearing. Thus, there is no surprise or unfairness to [the applicant] in Certas being allowed to make the s.55 argument at this hearing.

34[The applicant] acknowledges that she did not attend the two assessments. She testified that she was tired of attending I.E.s and that she felt Dr. Baker (the physiatrist) did not help her at an earlier s.44 assessment. These are not valid reasons for refusing to attend a s.44 assessment.

35[The applicant]’s counsel wrote to Certas opposing the assessment by Dr. Baker because he had already assessed [the applicant] approximately six months earlier. [The applicant] submits that since Dr. Baker ultimately produced a report based on a paper review, the proposed in-person assessment was not reasonably necessary. Assuming, without deciding, that a second in-person assessment by Dr. Baker was not reasonably necessary, there remains [the applicant]’s failure to attend the assessment by a psychiatrist. I find that in the context of the proposed chronic pain treatment program, an assessment by a psychiatrist was appropriate.

36For all of these reasons, [the applicant] is barred from litigating entitlement to the chronic pain treatment program proposed in the August 10, 2016 OCF-18 from Sports Medicine Rehabilitation.

Costs of Examinations

[The applicant] is entitled to the April 22, 2016 physiatry assessment

37Certas denied the April 22, 2016 OCF-18 for a physiatry assessment submitted by Dr. Dinesh Kumbhare on the basis that it was not reasonable and necessary. It stated that “there is insufficient medical documentation and no explanation or reasoning as to why a physiatry assessment is warranted at this time.”¹³ I disagree. Among the injuries listed in the OCF-18 was chronic intractable pain. [The applicant] was still experiencing symptoms over a year and a half after the accident. It was both reasonable and necessary to investigate the cause of those symptoms.

38Certas’ main argument seems to be the proximity of this OCF-18 to S.D’s March 2016 accident, i.e., that the proposed assessment flows from that accident rather than the September 2014 accident. It notes that the OCF-18 was submitted six weeks after the March 2016 accident. The applicant points out that chronic pain could not have been related to the March 9, 2016 accident as there had not been enough time since that accident for pain to become chronic. I agree.

39Further, given that Certas felt that s.44 physiatry assessments were warranted in March and September of 2016, it is difficult to understand why a s.25 physiatry assessment was not warranted in April 2016.

40I find that [the applicant] is entitled to payment for this assessment.

[The applicant] is entitled to the May 2, 2016 chronic pain assessment

41Certas similarly denied the chronic pain assessment proposed in the May 2, 2016 OCF-18 prepared by Dr. Marciniak. The goals of the assessment were “pain reduction and [to] determine physical factors affecting the patient’s pain” and to determine whether [the applicant] suffers from chronic pain. A “comprehensive report” would be generated.

42Certas makes an issue of the fact that Dr. Marciniak did not refer to the March 2016 accident in one of his reports. The March 2016 accident, however, is not relevant to this OCF-18 for the same reasons set out with respect to the April 2016 assessment above, i.e., there had not been enough time since that accident for pain to become chronic.

43I find that this assessment was reasonable and necessary to determine the cause(s) of [the applicant]’s ongoing pain.

AWARD

The issue of an award may be added

44[The applicant] raised the issue of an award in her opening submissions on the first day of this hearing. She had not raised the issue at the case conference. She explained that it was not until she received the adjuster’s log notes, on January 12, 2017, that she realized that there was a basis to seek an award. She did not explain why she waited until the first day of hearing to give notice that she was seeking an award.

45Certas submits that it would experience prejudice if [the applicant] is allowed to raise this issue at this late stage. I note, however, that there was a gap of 17 days between February 27, when Certas became aware that an award was being sought, and March 16 when the adjuster gave his evidence.

46Although, the case conference is intended to canvass and identify all the issues in dispute between the parties, [the applicant] did not have access to the log notes until after the case conference. While it would have been preferable for [the applicant] to have given notice in advance of the hearing, I find that 17 days provided sufficient notice for Certas to be able to respond to this issue. This is particularly so since the relevant evidence (the adjuster’s log notes) was within Certas’ control.

47For these reasons, I find that the issue of an award may be added.

[The applicant] is not entitled to an award

48In support of her request for an award, [the applicant] cites a number of cases in which either awards or punitive damages were ordered¹⁴. In my view, Certas’ behaviour does not approach that of the insurers in the cases cited.

49The essence of [the applicant]’s argument is that Certas “ignored credible and objective medical evidence throughout Ms. D’s accident benefits claim and … by failing to pay Ms. D her entitled benefits … has put her in a worse position than the injuries from her car accident”¹⁵.

50The difficulty with this argument is that I have upheld the majority of the denials in issue. I have also found [the applicant] to be entitled to IRBs for only a limited time period. Further, the adjuster testified that if [the applicant] had provided the requested financial information and that information had shown a loss of income, he would have continued to issue IRB payments. [The applicant] did not provide her 2014 income tax return to Certas until October 2016. She never provided the additional financial information requested. It cannot be said, then, that Certas unreasonably withheld or delayed payments. Thus, an award is not appropriate in the circumstances of this case.

COSTS

51[The applicant] seeks costs under Rule 19. That rule permits a party to request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. The award of costs under Rule 19 is a discretionary remedy that is made only in exceptional circumstances.

52[The applicant] submits that she was forced to apply to the Tribunal due to Certas’ denial of her claims without reliable evidence. Rule 19, however, deals only with actions by a party once a proceeding has commenced. Thus any actions by Certas that led to [the applicant] filing her application are not relevant to a costs award.

53[The applicant] also submits that during the hearing Certas brought forward no reliable evidence to support its denial of her claims and it relied on an expert witness (Dr. Baker) who “lacked objectivity and impartiality”. In fact, I have found in favour of Certas with respect to a number of [the applicant]’s claims. I did not find that Dr. Baker lacked objectivity and impartiality.

54For all of these reasons, [the applicant] has not established entitlement to costs under the criteria set out in Rule 19.

CONCLUSION

55For the reasons outlined above, I find that:

1. [The applicant] is entitled to IRBs of $95.12 per week from September 12, 2014 to December 31, 2014.

2. [The applicant] is not entitled to payment for the treatment outlined in the September 22, 2014 and November 28, 2015 OCF-18s from Bloor West Rehabilitation Centre. She is barred from litigating entitlement to the chronic pain treatment program outlined in the August 10, 2016 OCF-18 from Sports Medicine Rehabilitation.

3. [The applicant] is entitled to the costs of examination outlined in the April 22, 2016 and May 2, 2016 OCF-18s.

4. [The applicant] may add the issue of an award under section 10 of Regulation 664 enacted under the Insurance Act. She has not established entitlement to such an award.

5. [The applicant] is entitled to interest on all benefits found owing.

6. [The applicant] is not entitled to costs pursuant to Rule 19.

ORDER

56The Tribunal orders that:

1. Certas shall pay [the applicant] IRBs of $95.12 per week from September 12, 2014 to December 31, 2014, adjusted for the one week already paid.

2. Certas shall pay the April 22, 2016 and May 2, 2016 OCF-18s.

3. Certas shall pay interest on the benefits found payable.

4. [The applicant]’s remaining claims are dismissed.

Released: November 21, 2017

Catherine Bickley, Adjudicator

Footnotes

1. 1This OCF-18 was referred to sometimes as being dated May 2 and sometimes May 9. The correct date is May 2.
2. 2Applicant’s Closing Submissions, para 78.
3. 3Applicant’s Closing Submissions, para 85.
4. 4Applicant’s Closing Submissions, para 110.
5. 5Applicant’s Closing Submissions, para 90.
6. 6[1990] 2 S.C.R.
7. 72012 ONCA 755.
8. 82016 ONSC 6671, at para 33.
9. 9Applicant’s Closing Submissions, paras 78 and 110; Applicant’s Reply, para 56.
10. 10Fax from Bloor West Rehabilitation Centre to State Farm Insurance, February 25, 2016. Exhibit 3, Tab P.
11. 11Letter, February 26, 2016, Exhibit 2.
12. 12Case Conference report (November 7, 2016), Exhibit 1, Tab 2.
13. 13Explanation of Benefits, Exhibit 3, Tab T.
14. 14Whiten v. Pilot, 2002 SCC 18, Personal Insurance Company v. Hoang, 2014 ONSC 81, Liberty Mutual and Presofsky (FSCO Appeal P00-00041), Branco v. American Home Assurance Company, 2013 SKQB 98, Henry and State Farm [FSCO A09-000213], Nader and State Farm [FSCO-003230].
15. 15Applicant’s closing submissions, para 2.