16-004312 v. Aviva Insurance Canada, 2018 CanLII 39463

Reasons for Decision and Order

Date: 2018-03-13 Tribunal File Number: 16-004312/AABS Case Name: 16-004312 v Aviva Insurance Canada

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

Aviva Insurance Canada

Respondent

Adjudicator: Cezary Paluch, Member

Appearances:

Applicant: [Applicant] Counsel for the Applicant: Adam Somogyi Counsel for the Respondent: Catherine H. Zingg Senior Litigation Specialist: Lynn Heighley

Heard in writing and in-person/teleconference: September 12 & 13, 2017

Overview:

1The applicant, [applicant], was injured in a motor vehicle accident on November 15, 2015 when she was a front seated passenger of a car that was rear ended and rolled over. [The applicant]’s aunt and her two younger kids were also in the car. She applied for and received benefits under the Statutory Accident Benefits Schedule – effective after September 1, 2010 (the “Schedule”), including an Income Replacement Benefit (IRB).

2The respondent, Aviva Insurance Company (“Aviva”) terminated [the applicant]’s IRB on July 11, 2016 taking the position that she did not meet the test for entitlement. The applicant disputes the termination taking the position that she should be paid an IRB in the amount of $319.26 per week from July 11, 2016 and to date and on-going. The quantum of the weekly IRB is not in dispute.

3At the time of the hearing the applicant was 31 years of age (and was 29 at the time of the accident) having immigrated to Canada when she was 14 years old from Sierra Leone.

Issues:[^1]

4Is the applicant entitled to receive a weekly income replacement benefit in the amount of $319.26 per week for the period July 11, 2016 and on-going entitlement in accordance with the Schedule?²

5Is the respondent liable to pay an award under Regulation 664 of the Insurance Act (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

6Is the applicant entitled to interest for the overdue payment of benefits?

Result:

7I find on all the evidence that the applicant is entitled to receive IRBs for the period sought.

8The applicant’s claim for an award pursuant to s. 10 of Regulation 664 is dismissed.

9The respondent shall pay interest on all overdue amounts in accordance with the Schedule.

Procedural Issues:

i) Raised by respondent: admissibility of the surveillance report and to request to add witness

10At the start of the hearing, I heard a motion by the respondent requesting to add Mr. David Lilley of Xpera Investigation as a witness and to also admit into evidence surveillance video footage. The Notice of Motion form dated September 1, 2017 (which only requested that the witnesses be added and not that the video footage be admitted) was served on the applicant via email on September 5, 2017 as confirmed by the Certificate of Service signed by A. Martin. As I understood the surveillance report was served on the applicant August 2, 2017, however, and the surveillance footage was only served on August 18, 2017³ (although Mr. Somogyi also referred to August 8, 2017⁴ as date he received the footage although he was not certain about that). The respondent was not able to tell me when the surveillance video first became available. The respondent counsel explained that she only recently took over the file from a lawyer who has left the firm. Although, I am sympathetic to the respondent’s explanation, the video surveillance was served late and not in compliance with the Tribunal’s Order. The applicant opposed the motion (to add a witness and admit the surveillance footage) on the grounds that his doctors have not had an opportunity to view it and respond. The applicant did not oppose the inclusion of the surveillance report which already was included in the respondent’s document brief and marked as an exhibit.

11I denied the respondent’s motion for several reasons. The Tribunal Order dated March 3, 2017, required evidence be submitted by the respondent by August 4, 2017 (notwithstanding that there was an adjournment of the initial hearing date the submission date of August 4 2017 remained). The video was only provided to the applicant on August 18, 2017. Also, the Order required all witnesses to be confirmed at least 30 days before the hearing - by August 11, 2017. This was not done by the respondent. There was no motion brought by the respondent prior to extend or vary the submission dates. Moreover, the respondent’s Notice of Motion was not served at least 10 days in advance of the hearing as required by the rules. The timelines of the Order and rules are there to ensure that parties have a fair hearing and that no party is surprised by last minute evidence at the hearing. Therefore, the respondent’s motion was denied.

ii) Raised by the applicant: exclusion of expert reports

12The applicant’s counsel sought the exclusion of three expert reports (of physicians who were not called to testify by the respondent) because he would not have an opportunity to cross examine the writers of these reports and this would not be fair. I declined to do so at the hearing because the Order of Adjudicator Kowal dated March 3, 2017, specifically allowed for evidence including the evidence of all experts to be provided via reports.⁵ This is what the parties were aware of prior to the hearing and to now possibly change the format of the hearing and summons three witnesses would cause significant delay and prejudice to the respondent who was ready to proceed. In his closing written submission, the applicant again repeated his request stating that the respondent was made to pick two doctors to be cross examined and chose Dr. Alikhan and Dr. Siegel (which were cross examined at the hearing) and on the basis of procedural fairness the opinions of Dr. Yhamad and Dr. Morris ought not to be considered. I already made a ruling on this issue at the hearing that the reports were admissible. In any event, I note that section 10(1)(b) of the Statutory Powers Procedures Act (SPPA) states that a party to a proceeding may conduct cross-examinations of witnesses reasonably required for full and fair disclosure of all matters relevant to the issues in the proceeding. I find that the cross-examination of Dr. Yhamad and Dr. Morris are not reasonably required in this case. As such, the applicant’s motion is denied.

iii) Raised by the applicant: admissibility of Addendum Report

13During the cross examination of Dr. Valentin, applicant’s counsel requested that an Addendum Report dated July, 2016, be admitted into evidence. As I understood, this report was not included as part of the applicant’s Document Brief that was marked as an exhibit as the start of the hearing. The respondent’s counsel opposed the request because they did not have an opportunity to review the report and prepare for it. After hearing submissions of the parties on this issue, I declined to admit the addendum report because it was served after the deadline in the Order of March 3, 2017 and to allow it to be included would not be fair to the respondent who was clearly surprised by it and did not have an opportunity for their experts to review it and properly respond.

iv) Raised by applicant: to add new issues

14At the start of the hearing, the applicant requested that new issues be added regarding a denied treatment plan, costs⁶ and a “special award.” The applicant did not file a formal Notice of Motion requesting this relief. The respondent objected to the request because they were not aware that the applicant wanted to raise these new issues. I did not make a formal ruling at the hearing regarding the addition of these issues as I was lacking particulars. The applicant in her closing written submissions, provided after the completion of the hearing, at a paragraph 2, stated that there are only two issues remaining in dispute: (i) income replacement benefits; and (ii) “special award” and proceeded to provide submissions on both issues. Applicant’s counsel cited Waldcok v. State Farm Mutual Automobile Insurance Company⁷ for the proposition that that a request for a “special award” may be made by any party at any time.

15In turn, the respondent in their closing written submissions specifically addressed the applicant’s request for an award. I was not referred to any section in the Schedule or the Rules that requires a request for a “special award” to be included as part of the initial Application. Therefore, as I had both parties’ position on the issue in the interest of fairness and efficiency, I allow the issue to be added as part of this hearing and address it below.

16With respect to a denial of another treatment plan, I am not prepared to add this as an issue because the applicant did not provide any particulars regarding what the proposed treatment was for, when the plan was denied and for what reason or even refer to it as an issue in her closing written submissions. Similarly, I am not prepared to add costs as the applicant did not raise it in her closing written submissions or adequately demonstrate how the respondent acted unreasonably, frivolously, vexatiously, or in bad faith to come within the ambit of Rule 19. Further, the applicant provided no evidence or particulars in terms of specific allegations of actions during the proceeding, there is no basis for a costs award in any event.

Law and Discussion:

Eligibility Criteria for Income Replacement Benefit[^8]

17The test for entitlement to payment of an IRB within 104 weeks after the accident is found in s. 5(1) of the Schedule.⁹ Therefore, the applicant must prove on a balance of probabilities that that she was employed at the time of the accident and suffers a substantial inability to perform the essential tasks of her employment as a general labourer.

18For analytical purposes, the inquiry can be divided into two main parts:

i. Causation; and

ii. Substantial Inability to perform the essential tasks of employment.

i. Causation

19It is uncontested that the applicant was employed at the time of the accident as a general labourer at an employment agency where she worked approximately 40 hours a week at a warehouse packing and shipping products. Prior to the accident, the applicant testified that she worked at a company called NLS packing boxes, scanning products and shipping them. The physical requirements of her job required her to stand eight or nine hours non-stop.¹⁰ An essential part of her job was lifting boxes that were very heavy.¹¹ She testified that as a result of her back pain and inability to carry boxes she could not return to her former job.¹²

20The applicant described what happened during the accident. That she hit her head, may have lost consciousness and suffered a concussion. She was vomiting, her face swelled up and was taken to the hospital by the ambulance. She was released the same day and went to a walk-in clinic the next day complaining of chest pain, lower back pain, shoulder and knee pain. A few days later on November 24, 2015, she went to see her sister’s family doctor, Dr. C. Akoyoye (who became her family doctor), complaining of headaches, chest pain, shoulder pain, upper body and lower back pain.

21The applicant testified that prior to the accident she was healthy and did not have any psychological or emotional problems. After the accident, she experienced severe headaches two or three times a day and although her headaches were improving she was referred by her family doctor to a chronic pain clinic. She also complained of lower back pain that makes it difficult for her to stand or sit for long periods of time. For this reason, she was unable to return to work as her job requires her to carry heavy boxes and pack them. The job apparently could not accommodate her special needs. She testified that she wants to return to work but cannot due to her physical difficulties. In cross examination, she admitted that she could work at a job that is less strenuous. She is taking Advil or Tylenol to combat the pain. With respect to emotional difficulties, the applicant testified that she is sad every day and only gets three or four hours of sleep (versus 6 or 7 prior to the accident). This causes her to have nightmares and difficulty remembering things.

22In cross examination, the applicant’s evidence was unchallenged for the most part. The one area of contention was that the Ambulance Call Report did not reference MR losing consciousness or vomiting at the accident scene and the airbags deploying. Overall, I found these discrepancies very minor. It may be that MR lost consciousness briefly prior to the paramedics arriving at the scene. The evidence was that she told Dr. Valentin that she “may” have had a loss of consciousness.¹³ She also explained in cross examination that the side air bags did go off. Overall, I found the applicant to be candid and credible in providing her testimony at the hearing. Her evidence was also very consistent with her medical evidence. Her family doctor, Dr. C. Akotye, who she saw regularly after the accident, concluded that she has not been able to return to work as a result of her accident. As well, Dr. Valentin, psychologist, concluded that as a direct result of the accident, the applicant suffers from severe level of depression and anxiety.

23Aviva submits that the applicant’s injuries are not a result of the November 15, 2015, accident but due to prior traumas in her life which caused her the psychological and sleep difficulties that she is complaining about. In cross examination, the applicant testified about these events and that she saw family members and neighbours get killed as a young child and conceded that this has caused her flashbacks as a result of the trauma when watching the new and experienced difficulty sleeping because of nightmares. Also, Aviva submits that her parents divorced when she was 22 years of age and her mother had a workplace accident which was upsetting to the applicant.

24In its final submissions, the respondent cited the Financial Services Commission of Ontario (FSCO) Director’s Delegate appeal decision in State Farm and Sabadash¹⁴ for the proposition that in accident benefit cases causation is established by the “but for test”. In Sabadash, Director’s Delegate Evans provided a detailed history of the leading case law regarding causation in Canada and stated that the correct test to be applied for causation in accident benefits cases is the “but for” test. In short, the Director’s Delegate found that the “but for” test is “paramount” in determining causation in accident benefits cases (and an adjudicator cannot simply choose between the “but for” test and a “material contribution to risk” test). This decision was cited by the respondent in their submission.

25Although the Tribunal is not bound by FSCO decisions, I am persuaded by the reasoning and the case law cited in Sabadash 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 she would not suffer an impairment which causes the complaints she puts forward as the basis for her claim for income replacement benefits. In my view, 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 she puts forward as the basis for her IRB claim. The applicant has proven causation on either standard.

26By all accounts, the evidence demonstrated that before the accident the applicant was healthy, worked full time and was relatively pain free. I am comfortable inferring that the intervening act of the motor vehicle accident is responsible for the alleged impairments. Although the applicant had war experiences in Sierra Leone before, this was many years ago and not clear what psychological impact, if any, that had on [the applicant] and all indications were that before the accident she was psychologically healthy.

27In support of her claim, the applicant also relied on the Disability Certificate OCF-3 dated July 9, 2014 submitted by Centennial Physiotherapy & Rehab that concluded that the applicant is substantially unable to perform the essential tasks of her employment at the time of the accident. The purpose of the Disability Certificate is to provide a starting point for the respondent to investigate whether the applicant is entitled to the claimed benefit. I note that the respondent admitted that the applicant suffered impairments in that they paid her IRBs up to July 11, 2016 in the total amount of $10,626.83.

28Dr. I. Valentin, psychologist, diagnosed the applicant with: Major Depressive Disorder, Single Episode, Moderate, PTSD, Severe, Specific Phobia, Situational; Somatic Symptoms Disorder; and Cognitive Disorder and concluded in her report that the applicant has not been able to return to work since the accident and this makes her feel sad with a lack of purpose and sense of social isolation.

29Therefore, I am satisfied that on a balance of probabilities whatever injury or impairment the applicant has sustained or endured was caused by the motor vehicle accident. In other words, but for the motor vehicle accident she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim for the IRB.

30I now turn to the issue of whether the headaches, physical pain and her psychological problems cause the applicant a substantial inability to perform the essential tasks of her employment as a labourer at a warehouse.

ii) Substantial Inability to perform the essential tasks of that employment

31Having reviewed the evidence I find that the applicant, on a balance of probabilities, has established that she is substantially unable to perform the essential tasks of her employment.

32The essence of the test for an IRB is whether the applicant suffers from a substantial inability to perform the essential tasks of her or his employment. To 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 her employment?

i) What are the essential tasks of the applicant’s employment

33Based on the applicant’s testimony and the Job Site Evaluation Report dated June 16, 2016 (JSE Report), I find as fact that the essential tasks of her employment as a general labourer working at a warehouse were:

(a) packing boxes;

(b) lifting boxes;

(c) scanning and counting products; and

(d) shipping items.

34The applicant testified that the physical requirements of her job required her to stand 8 or 9 hours a day non-stop with only 15-minute breaks and a ½ hour lunch. She was required to lift 30 or 40-kilogram boxes as part her everyday duties. The JSE Report, under the heading Physical Demands, confirmed that the applicant is required to lift within the heavy strength demands on an occasional to frequent basis as part of her job. It was clear to me that lifting boxes was essential part of her job.

35The applicant’s essential tasks of her employment as she testified and described in the other information as part of this written hearing was not contested.

36The key component of the test for IRBs is whether the applicant is unable to perform the essential tasks of her employment.

ii) Is the applicant substantially unable to perform the essential tasks of her employment?

37In support of her claim that she is substantially unable to perform the tasks of her employment, the applicant presented the following medical evidence to support her case:

i. OCF-3 Disability Certificate dated November 18, 2014;

ii. Dr. C. Akotoye report dated February 25, 2017 and notes and records;

iii. Dr. I. Valentin’s Psychological Report dated July 15, 2016;

iv. Dr. S. Brown’s Chronic Pain Assessment submitted January 29, 2017; and

v. Mr. Donny Monck’s Job Site Evaluation Report finalized June 16, 2016.

38Overall, I preferred the applicant’s medical evidence for two main reasons. The first is that I found the evidence of Drs. Akotye, Brown and Valentin more persuasive, thorough and comprehensive, especially since Dr. Brown was an expert in chronic pain who conducted a Chronic Pain Assessment. Second, I put limited weight on Drs. Alikhan and Siegel’s’s evidence for reasons discussed below.

39The applicant’s OCF-3 Disability Certificate completed by S. Lee, chiropractor, on November 18, 2014, concluded that that she is substantially unable to perform the essential tasks of her employment at the time of the accident as a general labourer. The Disability Certificate also diagnosed the applicant with the following injuries as a direct result of the accident:

• Sprain & strain of cervical and thoracic spine, lumbar spine, shoulder joint;
• Headache;
• Dizziness and giddiness;
• Nausea and vomiting;
• Insomnia; and
• Nervousness.

40Dr. I. Valentin, psychologist, diagnosed the applicant with the following:

• Major Depressive Disorder, Single Episode, Moderate;
• PTSD, Severe;
• Specific Phobia, Situational;
• Somatic Symptoms Disorder;
• Cognitive Disorder.

41Dr. S. Brown in his Chronic Pain Assessment report submitted January 29, 2017 concluded that [the applicant] will not be able to return to her pre-accident level of functioning at her employment and diagnosed her with the following:

• Chronic Pain Syndrome;
• Chronic pain lumbar spine (mechanical, extension-aggravated Pattern 2, secondary hyperalgesia);
• Chronic pain thoracic spine (myofascial +/- mechanical - facet joints)
• Chronic headache (tension-type, post-traumatic, possible occipital neuralgia);
• Possible post-concussion syndrome; and
• Sleep Disorder (insomnia).

42According to Dr. Brown, the above impairments have affected [the applicant]’s ability to perform the essential physical and cognitive tasks of working as a general labourer/scanner for NLS Her painful symptoms and headaches have resulted in de-conditioning, reduced endurance, and decreased focus. Her ability to function at her pre-accident employment is now likely limited by both physical and psychological factors. Her current impairments will limit future job opportunities, hinder professional performance, affect motivation, reduce the amount of work­ related experience she can accumulate, and negatively affect her future employability and working life expectancy.

43Similarly, Dr. C. Aktoye, family doctor, who saw [the applicant] a few days after the accident and then following on a regular basis¹⁵ also opined that [the applicant] has not been able to work as a result of her motor vehicle injuries.

44What all these diagnoses mean is that the applicant has considerable emotional difficulty adapting to and coping with her psychological and physical symptoms, including pain, since the accident. I find that, at the very least the applicant suffered anxiety and depression and inability to cope with her pain, and experienced an emotional response to a stressor. The diagnosis of post-traumatic stress disorder and pain syndrome disorder best fits or describes her symptomology.

Assessment of State Farm’s evidence

45Aviva retained, Dr. N. Alikhan, family and emergency physycian, Dr. J. Siegel, psychologist and Dr. N. Yhamad, neurologist, and Mr. D. Morris, kinesiologist, as part of a multi-disciplinary assessment team to provide an opinion regarding the applicant’s entitlement to IRB. The assessments all support the conclusion that the applicant does not suffer from a substantial inability to perform the essential tasks as a general labourer. Only Drs. Alikhan and Spiegel were cross examined at the hearing.

Dr. N. Alikhan

46Dr. Alikhan testified via telephone. He was tendered by the respondent as an expert in family medicine and chronic pain. The Acknowledgment of Expert’s Duty form was signed and filed. At the start of his testimony, applicant’s counsel objected to accepting Dr. Alikhan as an expert witness in chronic pain and only an expert in family medicine. I alerted counsel to Rule 10.4 which requires a party wishing to challenge an expert’s qualification to give notice with reasons to the other party as soon as possible and no later than 10 days before the hearing. This appeared not to have been done. Applicant’s counsel responded that he did not know that Dr. Alikhan would be presented as an expert in chronic pain as his reports are not labelled as chronic pain assessments. Alternatively, applicant’s counsel explained that proper notice was provided at page 13 of the applicant’s initial written submissions where counsel disputed Dr. Alikhan’s expertise in chronic pain. The respondent replied that she did not know the applicant would be challenging Dr. Alikhan’s qualification and would have taken additional steps if she was aware of it. To avoid any potential delay of the hearing, the parties agreed to proceed with R. Alikhan’s evidence and the ability to both ask Dr. Alikhan questions about his professional qualifications.¹⁶ On that basis, the matter proceeded, and I was be able to hear the evidence about Dr. Alikhan’s qualifications and make a proper determination what weight to assign to the tendered evidence.

47After hearing Dr. Alikhan’s testimony and reviewing his resume, I do not accept Dr. Alikhan as an expert in the field of chronic pain and assign his testimony limited weight in this area. Dr. Alikhan testified that he was a family doctor with a certification in Emergency Medicine. Although, he has diagnosed chronic pain syndrome in patients he did not have any other formal certification or specialities including any chronic pain certification. He conceded that a good number of his patients who have chronic pain syndrome are referred to specialists or chronic pain clinics. He has not authored any books or papers on the topic of chronic pain. Although he testified that he has testified as an expert in a tribunal or Ontario court, I was not certain if that was as a chronic pain expert or just as a family medicine expert.

48Overall, I put limited weight on the evidence of Dr. Alikhan for the following reasons. I did not accept Dr. Alikhan as an expert in chronic pain (only an expert in family medicine) and therefore his conclusion that [the applicant] did not suffer from chronic pain and his related reasoning why he disagreed with Dr. Brown’s diagnosis that [the applicant] suffers from a chronic pain syndrome is of limited weight. Second, Dr. Alikhan testified that it would not have helped him to have the benefit of another in person assessment of the applicant. Dr. Alikhan only had one meeting with the applicant over a year prior to the hearing, on May 10, 2016, that lasted one hour. Despite this limited in person meeting he has been asked to author a plethora of addendum reports. I find that the lack of greater and more recent in person contact with the applicant led me to give his evidence less weight.

49Finally, there was significant confusion at the hearing about how many reports Dr. Alikhan prepared and the dates that the reports were finalized. When asked how many reports he prepared in respect of the applicant, Dr. Alikhan responded: “Well, sure, there’s, like, quite a few. Six maybe.” He later further tried to explain the apparent confusion: “there’s so many addendum reports, you know” and “I’m not even sure if one of them was an addendum report for IRBs.” Dr. Alikhan could not explain why one report was prepared on January 19, 2017, and finalized seven and half months later on August 3, 2017. I did not find that the respondent’s explanation that cross examination over the telephone made this overly challenging was compelling. The overall confusion in respect of the addendum reports ultimately detracted from the presentation of the respondent’s case.

Dr. J. Siegel

50Dr. Siegel, psychologist, assessed the applicant on May 24, 2016. Applicant’s counsel accepted Dr. Siegel as an expert psychologist in this matter. He was cross examined at the hearing regarding his report finalized on June 16, 2016 and the Addendum Report dated May 25, 2017. With respect to the IRB issue, Dr. Siegel concluded that because he was not able to provide a definitive diagnosis, in consideration of possible self-limiting behaviour relative to actual abilities, and symptom magnification, [the applicant] does not suffer a substantial psychological inability to perform the essential tasks of her pre-accident employment. I give little weight to Dr. Siegel’s evidence regarding the applicant’s ability to substantially unable to perform the essential tasks of her employment for the following reasons.

51In cross examination, Dr. Siegel conceded that he did not know what [the applicant] did for work¹⁷ or do any kind of in depth analysis of what she did for work.¹⁸ Although his report did reference that [the applicant] was working at the time of the accident as a general labourer, scanning, packaging, receiving, and pricing, it did not discuss in any material way what the essential tasks of her employment were and how the accident impacted her ability to complete those tasks. He conceded that it would have helped to have another personal assessment of [the applicant] when he prepared his addendum report finalized on May 25, 2017. He also testified that based on the data before him psychological intervention is recommended.¹⁹ I found that his inability to provide a diagnosis especially in light of the fact that he recommended some sort of psychological intervention was of concern. Indeed, despite the low validity test scores, Dr. Siegel, refused to conclude that the applicant was “lying” and stated in his report that “this may co-exist with some bona fide psychological adjustment difficulties”

52Overall, there was a general lack of clear evidence as to the meaning of the low test scores. That is, the applicant (who has been diagnosed with chronic pain syndrome) was not able to engage because she was experiencing significant pain, headaches and distress, which affected her ability to engage in testing rather than deliberate attempts at feigning impairment. For that reason, I did not place a lot of weight on these testing results.

53Finally, Dr. Siegel was asked whether it is plausible that the applicant is unable to return to work due to her injuries sustained in the accident and he answered that it is plausible and explained that “not at the time of my assessment, but at this particular time, it is plausible that the nature of her psychological impairments – because I can’t comment regarding her physical ability to return to work or not. But it is plausible that her psychological impairments are of a severity to stop her from being able to return to work.”²⁰ While this alone is not conclusive, this uncertainty combined with the totality of the evidence before me results in more limited weight given to Dr. Siegel’s conclusion.

54Overall, for the above reasons, I preferred the evidence of the applicant and her medical professionals over that of the respondent’s medical professionals and I find, on a balance of probabilities, that the applicant has proven that she suffers a substantial inability to perform the essential tasks of her pre-employment during the first 104 weeks after the subject motor vehicle accident. The applicant’s claim for an IRB is allowed. The parties agreed the weekly amount of the IRB.

Special Award[^21]

55The applicant has requested an award (commonly referred to as a “special award”) because she alleges the respondent has acted unreasonably in withholding payment of three denied treatment plans for physical rehabilitation, psychological assessment and attendant care examination.²²

56Section 10 of the Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments. An insurer will not face a special award just because an arbitrator finds that the insurer got it wrong.²³

57The applicant argues that she is entitled to a “special award” because the respondent acted unreasonably by only agreeing to pay for the three disputed treatment plans in dispute at the hearing. She cites 16-002861 v Aviva Insurance Company²⁴ as having similar facts where the Tribunal granted such an award. Further, the applicant argues that conceding issues in the midst of a hearing should not relieve the insurer paying a “special award” when delaying in making those payments. The respondent opposes the request and submits that with such contradictory information regarding [the applicant]’s condition at the scene of the accident and questionable validity scores was reasonable for the respondent to question the applicant’s credibility. As a result made it reasonable for them to conclude that the applicant does not suffer from a substantial inability to perform the essential tasks of her employment.

58I find that the respondent is not liable to pay an award to the applicant in these circumstances because:

i. I am not persuaded that the respondent’s reliance on medical reports that concluded that the treatment plans were not reasonable and necessary with respect to the disputed treatment plans was unreasonable. The conduct has to be essentially so egregious that it should have been patently obvious to the insurer the treatment plans were reasonable and necessary. This was not the case here. Having reviewed the viva voce evidence, submissions and supplemental documents, I find that the insurer gave reasonable consideration to all the information then available to it in assessing the claim. I find that there is no evidence that the denial of the treatment plans was improper especially in light of the medical information the insurer had in its possession. The respondent’s submissions, including that only having had the opportunity to hear [the applicant]’s evidence at the hearing, persuade me that prior to the hearing it had grounds to question the applicant’s credibility and the treatment and assessment plans relating thereto. In my view, the decision to remove the applicant from the Minor Injury Guideline and pay the disputed plans on the first day of the hearing narrowed the issues and significantly shortened the hearing. Moreover, it was after the applicant had completed her testimony that the respondent advised that they had agreed to remove the applicant from the minor injury guideline and pay the treatment plans in dispute.

iii. It is trite to say that an insurer has a continuing obligation to adjust a claim

I find that the respondent’s management of the applicant’s other claims including organizing and conducting a multi-disciplinary assessment regarding the IRB strongly suggest that it has taken the applicant’s injuries seriously and adjusted the file and made it appear unconvincing to me that it intended to act unreasonably on the disputed claims.

59In evaluating the evidence with respect to a claim for a special award, there needs to be persuasive evidence that the insurer was unreasonable in withholding or delaying payment for requested benefits. The only evidence that the applicant relies upon is the fact that the insurer agreed to pay for the treatment plans at the hearing. Based on my analysis as outlined above, the respondent’s withholding of payment for the treatment plan until they had an opportunity to hear the applicant’s testimony and assess her credibility was not unreasonable.

60For all these reasons, I conclude that an award would not be appropriate in this case.

Conclusion:

61For the reasons outlined above, I find that that the applicant is entitled to IRBs according to the Schedule and the time period as agreed to by the parties

62The applicant is also entitled to any interest on the unpaid amount of the benefits.

Footnotes

1. 2At the start of the hearing the time period for the IRB in dispute was changed on consent of the parties from “July 11, 2016 to November 28, 2016”, to “July 11, 2016 to date and ongoing”. As well, at the hearing, both parties confirmed that the only issue in dispute related to the pre-104 IRB test from the date of denial up to the 2 year mark (or 104 weeks) and not the post 104 test.
2. 3Transcripts, September 12, 2017, page 14, line 12.
3. 4Transcripts, September 12, 2017, page 20, line 7.
4. 5Applicant’s Document Brief was marked as Exhibit “A” and Respondent’s Document Brief was marked as Exhibit “B”.
5. 6The issue of costs was also raised by the applicant in her Written Submissions dated May 25, 2017. However the Order of Adjudicator Kowal dated March 3, 2017 did not list costs as an issue in dispute for the hearing.
6. 7Waldcok v. State Farm Mutual Automobile Insurance Company, FSCO A13-001725.
7. 95 (1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions: 1. The insured person, i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment,
8. 10Transcripts, September 12, 2017, page 64.
9. 11Transcripts, September 12, 2017, page 65.
10. 12Transcripts, September 12, 2017, page 90.
11. 13Transcripts. September 12, 2017, line 244.
12. 14State Farm and Sabadash (Appeal P16-00029)
13. 15Dr. Akotoye’s Report dated February 25, 2017, states that the applicant attended at his clinic first on November 24, 2015, and then on a regular basis every two weeks and now once every month.
14. 16The Order of Adjudicator Kowal provided that the evidence of all medical experts would be in chief via reports and cross examination via telephone.
15. 17Transcripts, September 12, 2017, line 139.
16. 18Transcripts, September 12, 2017, line 137.
17. 19Transcripts, September 12, 2017, line 757.
18. 20Transcripts, September 12, 2017, line 771.
19. 22The amount of $2,728.11 for chiropractic services/general physical modalities (Issue #2), $1,899.00 for the cost of an attendant care examination (Issue # 3) and $2,272.60 for the cost of a psychological assessment (Issue # 4).
20. 2316-002346 v Unifund Assurance Company, 2017 CanLII 81583 (ON LAT) para. 29.
21. 2416-002861 v Aviva Insurance Company, 2017 CanLII 62160 (ON LAT).
22. 1On September 12, 2017, during the first day of the hearing, after the applicant had completed her testimony, the respondent advised me that they had agreed to remove the applicant from the minor injury guideline and pay the treatment plans in dispute in the amount of $2,728.11 for chiropractic services/general physical modalities (Issue #2), $1,899.00 for the cost of an attendant care examination (Issue # 3) and $2,272.60 for the cost of a psychological assessment (Issue # 4). Notwithstanding these concessions, Applicant’s counsel initially refused to withdraw these issues including whether the applicant’s injuries are predominantly a minor injury as defined in the Schedule. However, in written closing submissions, the applicant confirmed that the only remaining issues in dispute were the IRB and “special award.”
23. 8At the hearing, both parties confirmed that the only issue in dispute related to the pre-104 IRB test from the date of denial up to the 2 year mark (or 104 weeks) and not the post 104 test.
24. 21This issue was not listed as an issue on the Order of March 3, 2017.