I.M. v. Unifund Assurance Company, 2018 CanLII 2302

16-003709/AABS v Unifund Assurance Company

Date: 2018-01-10

Tribunal File Number: 16-003709/AABS

Case Name: 16-003709/AABS v Unifund Assurance Company

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

Unifund Assurance Company

Respondent

DECISION

Adjudicator: Catherine Bickley

Appearances: Mohamed Doli, Counsel for the Applicant Malcolm H. Zoraik, Representative for the Applicant Jonathan Tatner, Counsel for the Respondent Sally Caccciotti, Representative for the Respondent

Heard: July 24, 25 and 26, 2017 and by written submissions completed on September 8, 2017

OVERVIEW

1The applicant, I.M., was involved in an automobile accident on June 10, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent, Unifund Assurance Company, paid the applicant income replacement benefits (“IRBs”) until December 9, 2015 when it denied further IRBs based on a number of s.44 examinations. In January 2016, the respondent also told the applicant that she was no longer entitled to Attendant Care Benefits (“ACBs”)¹.

2The applicant disagreed with these decisions and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The parties were unable to resolve their differences at a January 2017 Case Conference.

3The applicant testified. The respondent called Dr. Jonathan Siegel (psychologist), Dr. Edwin Urovitz (orthopaedic surgeon) and Tony Jung (occupational therapist), each of whom had conducted assessments of the applicant. At the hearing, Dr. Siegel, Dr. Urovitz and Mr. Jung were qualified as experts in their respective areas.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

1. Is the applicant entitled to IRBs of $389.96 per week from December 10, 2015 to June 9, 2017?

2. Is the respondent entitled to repayment of $2,984.59 (plus interest) in IRBs?

3. Is the applicant entitled to attendant care benefits of $921.83 per month from November 9, 2015 to date and ongoing?

4. Is either party entitled to costs pursuant to Rule 19?

RESULT

5Based on the totality of the evidence before me and the parties’ submissions, I find that:

1. The applicant is not entitled to IRBs from December 10, 2015 to June 9, 2017.

2. The respondent is entitled to repayment of $2,984.59 (plus interest) in IRBs.

3. The applicant is not entitled to attendant care benefits from November 9, 2015 to date and ongoing.

4. Neither party is entitled to costs pursuant to Rule 19.

PROCEDURAL RULINGS

Mr. Zoraik may participate in the hearing

6The respondent opposed Mr. Zoraik’s active participation in the hearing. Mr. Zoraik, previously a lawyer in another Canadian province, is currently a “licensing candidate” under the supervision of Mr. Doli. After hearing from both parties and reviewing correspondence² between Mr. Doli and the Law Society of Upper Canada (“LSUC”), I made the following ruling:

The Tribunal’s Rule 2.19 defines a representative as someone authorized by the LSUC to act for a party. The email correspondence between Mr. Doli and the LSUC is ambiguous. Given that Mr. Doli is present, I do not see an issue with Mr. Zoraik examining or cross-examining a witness or making submissions under Mr. Doli’s supervision.

I’m not prepared on the information before me to make a ruling on Mr. Zoraik’s ability to have overall carriage of a case before this Tribunal.

7Mr. Doli was present for the entire hearing.

The applicant’s written submissions are not excluded due to lateness

8At the end of the hearing, a schedule was set for written closing submissions. The Tribunal received the applicant’s submissions after 5 p.m. on the day they were due.³ The respondent asks the Tribunal to disregard those submissions due to their lateness. The applicant responds that the submissions were late due to a delay in the hearing transcripts being provided.

9In my view, it is not appropriate to exclude the applicant’s submissions in these circumstances. First, they were late by only a few hours. Second, the respondent provided no evidence that it experienced any prejudice as a result. Third, their exclusion would be highly prejudicial to the applicant. Therefore, the applicant’s closing submissions are not excluded.

ANALYSIS AND DECISION

1. The applicant is not entitled to IRBs from December 10, 2015 to June 9, 2017

10I find that the applicant has not established that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as dental assistant as a result of the accident. The applicant’s lack of credibility on key issues renders unpersuasive both her testimony and medical reports which rely on her description of pain and other symptoms. I have concluded that the most significant findings on objective medical imaging are not caused by the accident. The applicant has not provided persuasive evidence that any impairment caused by the accident results in a substantial inability to perform the essential tasks of her pre-accident employment.

Credibility

11The respondent submits that there are significant credibility issues with the applicant’s evidence. It points to the applicant’s statements to multiple assessors that she had not returned to work when, in fact, she had. The applicant acknowledged at the hearing that she did not tell most assessors (including the psychologist who was assessing her for IRBs) that she had returned to work.⁴

12The applicant also told a nurse who was assessing her for ACBs that she had been unable to exercise in the gym since the accident⁵. This is inconsistent with the records from her gym which show that she visited the gym regularly (26 times) from August through November 2015⁶.

13The applicant submits that these inconsistencies concern “peripheral issues” “that have little or no bearing on the issues in dispute.⁷” I disagree. The applicant’s return to work and her regular gym visits were highly relevant to her entitlement to IRBs and to ACBs respectively. The applicant’s dishonesty on these central issues leads me to scrutinize her testimony carefully and to give more weight to objective medical imaging than to any reports that rely largely on her subjective reporting of pain and impairment.

The applicant’s injuries

14The applicant submits that she is suffering from chronic left arm and shoulder pain, chronic neck pain, chronic lower back pain and chronic knee pain. She states that she has also experienced numbness and tingling in her arm and hand.

15The notes of the applicant’s family doctor, Dr. Mohamad Asmal, from a visit five days after the accident state that the applicant reported she blacked out for ten seconds, struck the back of her head, her left arm, hand and shoulder and was attending therapy. There is no reference to back pain or knee pain. There are references to back pain and knee pain at subsequent visits.⁸

16The applicant relies on a January 2016 report by orthopaedic surgeon, Dr. Khal Efala. Dr. Efala diagnosed the applicant with post traumatic cervical, thoracic and lumbar spine dysfunction with musculoligamentous injury. He noted right knee pain “not yet diagnosed”. He opined that the applicant suffered a substantial inability to perform the essential tasks of her employment.

17Dr. Efala’s diagnoses seem to be based primarily on the applicant’s reports of pain and tenderness. Dr. Efala also relied on a finding of “ligamentous laxity” in a December 2015 cervical spine x-ray. I prefer the opinion of Dr. Urovitz, discussed below, that the x-ray did not show sufficient anterolisthesis (slippage) to establish ligamentous laxity. When Dr. Urovitz examined the applicant in September 2015, he found no objective signs of orthopaedic or muskoskeletal impairment. Given my concerns about the applicant’s credibility and my preference for Dr. Urovitz’s opinion on ligamentous laxity, I do not view Dr. Efala’s opinion as having a solid foundation.

18The applicant also relies on the opinion of Dr. Shariff Dessouki who examined her in July 2016 and stated in an August 30, 2016 report that she has chronic pain and a guarded prognosis. I give little weight to this report as Dr. Dessouki authored another report two weeks earlier (based on the same examination) that makes no mention of chronic pain and states that the applicant’s prognosis is good. As Dr. Dessouki did not testify, I have no explanation before me of the discrepancy between the two reports. I am concerned that the changes may have been made to assist the applicant’s case rather than to accurately reflect her medical situation.

19Both the s.44 and s.25 psychological assessors found that the applicant had a high perception of pain.⁹ This is consistent with the opinion of kinesiologist, Timothy Hartog, that the applicant had a high level of perceived disability that was not reflective of her actual abilities.¹⁰

Medical imaging

20In December 2015, x-rays and ultrasounds¹¹ were taken of the applicant’s left shoulder and cervical spine. The imaging found minimal bicipital tenosynovitis and subscapularis tendinosis but no fracture or dislocation in the shoulder. The imaging report also stated that “[d]uring flexion, there is a 1 to 2 mm anterolisthesis of C3 on C4 and C4 on C5 suggesting an element of underlying ligamentous laxity.” The applicant argues that the finding of ligamentous is significant. Dr. Urovitz testified that an anterolisthesis (slippage) of 2 mm is just normal physiological mobility. I accept Dr. Urovitz’s opinion that anterolisthesis of at least 3.5 mm is necessary to establish ligament laxity¹².

21A September 2016 ultrasound¹³ shows a right knee Baker’s cyst. The applicant submits that this cyst is the cause of the knee pain that she has been experiencing since the accident. I am not persuaded that the Baker’s cyst was caused by the accident. The evidence regarding the applicant’s knee pain is inconsistent. While her family doctor’s records include some reports of knee pain¹⁴, the OCF-3s do not list a knee pain injury.¹⁵ Given my concerns about the applicant’s credibility, I give limited weight to her reports of pain. I also accept Dr. Urovitz’s testimony that he found no sign of a Baker’s cyst when he examined the applicant in September 2015¹⁶.

22A May 2017 left shoulder ultrasound¹⁷ shows a cortical fracture. The applicant submits that this finding supports her complaints of shoulder pain. I am not persuaded that the fracture was caused by the accident. Notably, December 2015 imaging of the left shoulder shows no fracture. The May 2017 ultrasound was taken after a more serious accident. The June 2015 accident took place on an urban street. No ambulance attended the scene, the applicant did not seek immediate medical treatment and she stopped for lunch on her drive home from the collision reporting centre. The May 2017 accident took place on a highway. The applicant was placed on a stretcher with a neck brace and taken by ambulance to hospital. I conclude that it is more likely than not that the cortical fracture was caused by the May 2017 accident.

23A number of other MRIs¹⁸ show degenerative changes, i.e., the types of changes that typically come with aging.

The essential tasks of the applicant’s pre-accident employment

24The applicant worked part-time as a dental assistant. She also worked on call for another dentist and three to four hours each evening cleaning a supermarket.

25Work as a dental assistant is a sedentary¹⁹ low strength²⁰ job. It involves a mixture of sitting and standing with some overhead reaching and handling items weighing up to 5 kg²¹. The essential tasks include sterilizing instruments, preparing the examination room, taking x-rays and handing instruments to the dentist. The applicant testified that if a patient has limited mobility she would help them get in and out of the examination chair.²²

The applicant has not established a substantial inability

26The applicant returned to her job as a dental assistant in September 2015 and worked until sometime in November²³.

27The applicant described her work during this period as “sporadic²⁴”: limited hours on two or two and a half days weekly.²⁵ Her employer’s records show that she worked more than sporadically. While these records show only limited hours during the September 27 and November 22 pay periods, they show that during the October 11, October 25 and November 8 periods the applicant worked 60.46, 57.01 and 55.1 hours. In other words, an average of 27.5 to 30.23 hours per week. Thus, when she returned to work the applicant worked as much or more than she had in that job before the accident.

28The applicant submits that an injured person who attempts to return to work is not disentitled from receiving IRBs if she is subsequently unable to continue working. I agree. Indeed, section 11 of the Schedule anticipates such a situation. However, the applicant has not met her onus to establish that she was unable to continue working because of impairment as a result of the accident. She did not explain in her testimony how her injuries prevented her from performing the essential tasks of her job. She testified that her ability to work was affected by pain but provided no details. As noted above, I have found that the most significant objectively verifiable injuries were not caused by the June 2015 accident.

29For all of these reasons, I find that the applicant has not established that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident. Thus, she is not entitled to IRBs for the period claimed.

2. The respondent is entitled to repayment of $2,984.59

30The respondent seeks repayment of $2,984.59 (plus interest) in IRBs for the period when the applicant was working in September, October and November 2015.

31Repayment was not identified as an issue in the February 7, 2017 case conference order. Rather, the respondent raised the issue at the start of the hearing and I ruled that it could be added as an issue. The applicant’s representative acknowledged on the record that there had been an overpayment of $2,984.59 and stated that the amount would be either repaid or offset against any award of IRBs²⁶.

32Sections 52(5) and 52(6) of the Schedule permit an insurer to charge interest and set out the method of calculating that interest. The respondent seeks interest from April 4, 2017, the date on which it gave notice of the overpayment²⁷.

33I find that the respondent is entitled to repayment of $2,984.59 plus interest calculated in accordance with section 52(6) of the Schedule.

3. The applicant is not entitled to ACBs from November 9, 2015 to date and ongoing

34The applicant claims attendant care benefits of $921.83 per month from November 9, 2015 to date and ongoing.

35I find that the applicant is not entitled to ACBs as none were incurred as that term is defined in the Schedule.

36Three criteria must be met for ACBs to be considered incurred²⁸:

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and,

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

37On November 21, 2016, the applicant submitted nineteen Expense Claim Forms (“OCF-6s”)²⁹ to the respondent. These OCF-6s, completed by the applicant’s older daughter, cover a mix of attendant care and housekeeping services between November 4, 2015 and January 14, 2016.

38The applicant testified that she has not paid the OCF-6s³⁰. She provided no evidence that she had made a promise to pay or was legally bound to pay the OCF-6s. The applicant’s daughter works full-time as a Pharmacy Technician³¹ which is not an employment, occupation or profession that typically provides attendant care. Although the applicant testified that her daughter missed some work to go with her to the doctor or the supermarket,³² she did not provide any evidence (such as pay stubs) to establish that her daughter sustained an economic loss. Her daughter did not testify.

39The applicant submits that the respondent admitted liability for ACBs from November 3, 2015 to January 18, 2016 in the January 11, 2016 Explanation of Benefits³³. She is correct that this document stated that she had eligibility from November 9, 2015 (when she submitted a Form 1) until January 18, 2016 (when eligibility was denied based on a s.44 assessment). The Explanation of Benefits, however, also noted that ACBs were an “incurred expense” and set out the criteria for an expense to be incurred. The respondent was simply advising the applicant that if she had incurred ACBs between November 9, 2015 and January 18, 2016, those expenses were eligible for payment. For the reasons I have set out above, the applicant has not established that any ACBs were incurred and thus none are payable.

4. Costs

40Rule 19 permits a party to request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. In this case, both parties request costs.

41The applicant submits that the respondent’s adjustment of her benefits and “defending against her legitimate claim for accident benefits” warrant an award of costs. The applicant also characterizes the respondent’s attempt to exclude her closing submissions as frivolous, unreasonable and in bad faith. The respondent submits that it was unreasonable and frivolous for the applicant to initiate this application.

42The award of costs under Rule 19 is a discretionary remedy made only in exceptional circumstances. Rule 19 deals with actions by a party once a proceeding has commenced. The parties’ costs submissions focus primarily on actions prior to this proceeding. The fact that the respondent’s attempt to exclude the applicant’s closing submissions was unsuccessful does not automatically lead to a costs award. I find that neither party has established entitlement to costs under the criteria set out in Rule 19.

CONCLUSION

43For the reasons set out above, I find that:

1. The applicant is not entitled to IRBs from December 10, 2015 to June 9, 2017.

2. The respondent is entitled to repayment of IRBs in the amount of $2,984.59 (plus interest).

3. The applicant is not entitled to ACBs from November 9, 2015 to June 9 or 10, 2017.

4. Neither party is entitled to costs pursuant to Rule 19.

ORDER

44The applicant shall pay the respondent $2,984.59 with interest (calculated in accordance with section 52(6)).

Released: January 10, 2018

_____________________________

Catherine Bickley, Adjudicator

Footnotes

1. 1The January 11, 2016 Explanation of Benefits (Exhibit 1, Tabs 5(YY) and 5(ZZ)) stated that the applicant had eligibility for ACBs from November 9, 2015 (when she submitted a Form 1) until January 18, 2016 (when eligibility was denied based on a s.44 assessment). The Explanation of Benefits further stated that ACBs were an “incurred expense” and set out the criteria for an expense to be incurred. No ACBs were paid.
2. 2Exhibit 6, Email correspondence between Mr. Doli and the LSUC, July 5 and 6, 2017.
3. 3Rule 6.5 provides that documents filed after 5 p.m. will be deemed to be received on the next day that is not a holiday.
4. 4Transcript, July 24, 2017, pages 224 - 227.
5. 5Exhibit 4, Tab 15. Attendant Care Assessment Report by Irene Lipka, November 3, 2015.
6. 6Exhibit 3, Tab (B)(1). Goodlife Fitness Membership File, September 1, 2016. The applicant’s gym membership was suspended from October 2014 to August 2015 due to health issues. The start of the suspension pre-dates the accident.
7. 7Applicant’s closing submissions, pages 15 and 17.
8. 8Exhibit 8, Clinical notes and records of Dr. Asmal.
9. 9Exhibit 5, Tabs 4 and 6, reports by Dr. Seigel, October 14, 2015 and November 13, 2015. Exhibit 5, Tab 17(A)(2), report by Dr. Stephen Brown, October 30, 2016.
10. 10Exhibit 5, Tab 18 (A)(2), Functional Abilities Evaluation Report by Timothy Hartog, October 14, 2015.
11. 11Exhibit 8, Jane-Shoreham Diagnostic Services Report, December 11, 2015, in the clinical notes and records of Dr. Asmal page 26.
12. 12Transcript, July 26, 2017, pages 122 – 123.
13. 13Exhibit 10, September 14, 2016.
14. 14Exhibit 8, clinical notes and records of Dr. Asmal.
15. 15Exhibit 4, Tabs 16(1) and 16(3). Exhibit 13. OCF-3s from Toronto Medical Centre, June 11, 2015 and August 8, 2015.
16. 16Transcript, July 26, 2017, page 123.
17. 17Exhibit 9, Ultrasound report, May 29, 2017.
18. 18Exhibit 8, Humber River Hospital, August 2, 2016, August 16, 2016, May 13, 2017 and June 5, 2017, in the clinical notes and records of Dr. Asmal. Exhibit 11, June 2, 2017.
19. 19Exhibit 5, Tab 17(A)(1), s. 25 Physiatry Report by Dr. Shariff Dessouki, August 30, 2016, page 12.
20. 20Exhibit 5, Tab 18(2)(A), S.44 Functional Abilities Evaluation Report by Timothy Hartog, October 14, 2015.
21. 21Exhibit 5, Tab 18(2)(A), S.44 Functional Abilities Evaluation Report by Timothy Hartog, October 14, 2015 page 6.
22. 22Transcript, July 24, 2017, page 85 - 86.
23. 23The applicant testified that she returned to work on September 20th. Her employer’s records show that she worked until the two week period ending November 22, 2015.
24. 24Applicant’s closing submissions, page 4.
25. 25Transcript, July 24, 2017, pages 94 - 95.
26. 26Transcript, July 24, 2017, pages 67 - 70.
27. 27Given the applicant’s acknowledgement that she has a repayment obligation, it is not necessary for me to make findings about the timing of the repayment notice or whether the overpayment resulted from wilful misrepresentation or fraud.
28. 28Section 3(7)(e) of the Schedule.
29. 29Exhibit 3, Tab 8 (A through T).
30. 30Transcript, July 25, 2017, page 271.
31. 31Transcript, July 25, 2017, page 271.
32. 32Transcript, July 25, 2017, page 273 – 274.
33. 33Exhibit 1, Tabs 5(YY) and 5(ZZ).