Tribunal File Number: 17-000502/AABS
Case Name: 17-000502 v RSA Insurance 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:
The Applicant
Applicant
and
RSA Insurance Company
Respondent
DECISION
Adjudicator: Anna Truong
Appearances: Ashu Ismail, Counsel for the Applicant
Anju Sharma, Counsel for the Respondent
Twi Interpreter: Emmanuel Mensah
Court Reporter: Jo Lynn Dickinson
Heard in-person on: July 17 & 31, 2017
OVERVIEW
1[The applicant] was involved in an automobile accident on December 10, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). These benefits were denied by the Respondent.
2The Applicant disagreed with the Respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided:
- Is the Applicant entitled to an income replacement benefit in the amount of $400 per week from:
a. July 16, 2015 to December 10, 2016?
b. December 11, 2016 and ongoing?
- Is the Applicant entitled to medical benefits outlined in the following chiropractic treatment plans submitted by Dr. Mohammed Agyemang:
a. Treatment plan dated May 12, 2015, in the amount of $2,424?
b. Treatment plan dated September 8, 2015, in the amount of $2,163?
c. Treatment plan dated January 19, 2016, in the amount of $1,608?
Is the Applicant entitled to the cost of completion of the Disability Certificate (OCF-3) dated October 5, 2015?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find the Applicant is not entitled to an income replacement benefit, the chiropractic treatment plans, the cost of the Disability Certificate or interest. I also find the Respondent is not entitled to costs of the motion.
PROCEDURAL ISSUE
5At the beginning of the hearing, the Respondent brought a motion to exclude the Applicant’s Vocational Evaluation Report dated June 16, 2017, of Denys Remedios, which was served on June 16, 2016.
6After hearing the submissions of the parties, I allowed the report into the hearing record, because it was served within the timelines noted in the Tribunal Order dated May 16, 2017, and the wording of the Order permitted further assessments and expert reports. Furthermore, since this is an in-person hearing, the Respondent had enough time to review the report and make arguments with respect to it. Any prejudice to the Respondent could be remedied through the weight placed on this report.
ANALYSIS
7A two day in-person hearing was conducted. The Applicant and treating and expert witnesses testified at the hearing. I have considered all of the evidence led during the hearing and only summarized what I found relevant to my determination below.
1. A) Pre-104 Income Replacement Benefits
8The Applicant bears the burden of proving on a balance of probabilities she is entitled to a pre-104 week income replacement benefit in the amount of $400 per week from July 16, 2015 to December 10, 2016.
9The test for entitlement to a pre-104 week income replacement benefit (IRB) is set out in section 5(1)(i) of the Schedule, which states the insurer shall pay an income replacement benefit if an insured person sustains an impairment as a result of the accident and “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”. This is referred to as the “substantial inability” test.
10The Applicant was 50 years old at the time of the accident. She was working as a dietary food aide at a long-term care facility from 10:30 a.m. to 7:00 p.m. five days a week. She had been working there since 2008. The Applicant led no evidence and made no submissions with respect to which tasks are the essential tasks of her employment. However, the tasks of her employment include:
Preparing snacks and desserts, loading them onto carts and transporting them to various floors;
Cutting up fruits for lunch;
Serving lunch or dinner from food warmers;
Transporting dirty plates between floors;
Cleaning dirty plates using an assembly line type dishwasher;
Cleaning and maintaining the dishwasher; and
Taking out the garbage and mopping.
Applicant’s Testimony and Evidentiary Inconsistencies
11The Applicant testified at the hearing. However, she was an unreliable witness. She often did not remember the timeline of events, or specific details when questioned. There were many unexplained or under-explained discrepancies and inconsistencies in the Applicant’s testimony and the rest of the evidence. The Applicant submits she is a “variable historian”. The Respondent argued the Applicant agreed with all favourable evidence and claimed miscomprehension or that it was someone else’s error, when the evidence was unfavourable. There is some truth to the Respondent’s assertion. The Applicant’s memory was variable and appeared to be selectively self-serving during her testimony.
12The Applicant testified pre-accident, she did not have any right hand pain and she only experienced right hand pain post-accident. However, in her family physician, Dr. Robert Saito’s record dated December 5, 2014, only 5 days pre-accident, the Applicant complained of right hand pain and Dr. Saito ordered both an X-ray and ultrasound of her right hand. The Applicant also testified pre-accident, she did not take any time off work due to being injured. However, Dr. Saito’s records indicate the contrary. When questioned about why she denied taking time off work, the Applicant testified she did not remember.
13The Applicant testified pre-accident, she was a bad student and she did not achieve good grades in school. However, during cross-examination, the Respondent put the Psychological Report of Dr. Jana Atkins dated September 1, 2015, to the Applicant, which indicates the Applicant reported to Dr. Atkins she was a good student. The Applicant testified she remembered she did not tell Dr. Atkins she was a good student, so she is not sure why Dr. Atkins wrote that in her report.
14When the Respondent put the Functional Abilities Evaluation Report of Dennis Polygenis dated September 1, 2015 to the Applicant, in which she only endorsed neck and low back pain during the assessment, the Applicant testified she remembered she did not endorse those symptoms. She testified she remembered telling him her head hurt as well, but he did not write it in his report.
15During closing submissions, the Applicant argued these discrepancies in her testimony and the rest of the evidence is due to her lack of English comprehension, a fact which was not raised until the hearing. Outside of the Applicant’s recent report from Mr. Remedios, the Applicant did not use an interpreter or request one for any of the other assessments, including her own. Furthermore, none of the Applicant’s treating physicians speak her language, so she would have to converse with them in English.
16Moreover, the Applicant attended college in Ghana, majoring in English literature, although she did not complete the program. She has lived in Canada for over 25 years and has completed a Canadian college program. Furthermore, none of the assessors, including her own, found she required an interpreter despite them all conducting thorough clinical interviews. Dr. Atkins even testified at the hearing that she would have stopped the assessment and obtained an interpreter, if she found there was a language barrier or communication problems, but she testified there were not.
17For these reasons, I do not find the Applicant’s lack of English comprehension to be a reasonable explanation for the discrepancies in her testimony and the evidence. Additionally, a portion of the Applicant’s testimony was derived through leading questions, so I cannot place much weight on those portions of her testimony.
18Given all the above, I found the Applicant’s testimony very unreliable. Therefore, when faced with inconsistent evidence between the Applicant’s testimony and other evidence tendered, such as documentary evidence, I gave more weight to the other evidence. I also gave less weight to conclusions solely based on the Applicant’s self-reporting for the same reasons.
Physical Injuries
19From my review of Dr. Saito’s records, the Applicant had a pre-existing history of migraines, insomnia, right sciatica, mechanical low back pain, right scapular pain, and right hand pain pre-accident. These conditions were present as late as the last few months of 2014, shortly before the accident. In addition to these medical conditions, Dr. Saito’s records show the Applicant required time off work many times pre-accident due to injury, or other medical reasons.
20The Applicant was initially treated within the Minor Injury Guideline (“MIG”), because the Respondent determined she sustained minor injuries as a result of the accident. She was subsequently taken out of the MIG, because Dr. Atkins, the Respondent’s psychologist, opined the Applicant was suffering from some psychological sequelae despite not being able to offer a diagnosis, and approved some psychological treatment. This was the basis upon which the Applicant was taken out of the MIG.
21The Applicant submitted her Medical Report from her CPP Application. The Medical Report is a form that must be completed by a physician, which outlines the medical condition that gives rise to the application for the disability benefit and the reasons the physician believes the applicant meets the test for the disability benefit. The Applicant’s Medical Report dated July 25, 2016, was completed by Dr. Saito, the Applicant’s family physician. Dr. Saito stated in the report the Applicant suffers from Mechanical Low Back Pain, Chronic Headaches, Right Scapular Pain, Elevated Cholesterol and Insomnia.
22From my review of the medical records, the physical injuries the Applicant sustained in the accident are minor in nature. It appears the Applicant suffered an exacerbation of her pre-existing soft tissue injuries.
23Dr. Saito’s clinical notes and records included two notes of Dr. Samuel Silverberg, Internal Medicine, dated May, 3, 2016 and March 30, 2017. It is clear from both notes Dr. Silverberg’s opinions are predominately based on the Applicant’s self-reporting. He concludes the Applicant’s soft tissue injuries are as a result of the car accident. However, there is no indication in Dr. Silverberg’s notes he knew about the Applicant’s pre-existing history, especially her pre-existing soft tissue injuries. Therefore, I could not place much weight on Dr. Silverberg’s notes.
24The Applicant argued I should place greater weight on the opinions of the treating physicians despite them not being qualified as expert witnesses. Generally, I would agree treating physicians are a valuable source of information, especially in the accident benefits context and weight should be given to their opinions even if they are not qualified as expert witnesses. However, as mentioned above, I had issues with the Applicant’s testimony and her self-reporting. That is the basis on which I place less weight on her treating physician’s opinions. I did not place less weight on their opinions, because they were not qualified as expert witnesses.
25In the Applicant’s Vocational Evaluation Report dated June 16, 2017, Denys Remedios, Forensic Vocational Specialist/Career Counsellor, opined the Applicant could not return to any competitive employment she is reasonably suited for by way of age, education, training or experience from a vocational/career assessment perspective. I did not place much weight on Mr. Remedios’ report for a few reasons. First, in his report, Mr. Remedios acknowledged there was no vocational testing completed. Second, Mr. Remedios also acknowledged his report was largely based on the Applicant’s self-reporting. Third, when questioned about the Applicant’s “substantial inability” test, Mr. Remedios stated it was beyond the scope of the Vocational Analysis. Yet, when questioned about the “complete inability” test (explained further below), Mr. Remedios opined from a vocational perspective, the Applicant met the test. Mr. Remedios’ report was not based on any testing and there is no objective basis for his conclusions. His report was largely based on the Applicant’s self-reporting. Therefore, I placed little weight on his report.
Psychological Injuries
26In the Respondent’s Psychological Report dated September 1, 2015, Dr. Jana Atkins, Psychologist, noted the Applicant reported she was unable to return to work due to her physical injuries. Dr. Atkins opined the Applicant did not suffer a substantial inability to perform the essential tasks of her employment from a psychological perspective. Dr. Atkins noted the results of the psychometric testing completed indicated the Applicant was significantly over-reporting and substantively embellishing on testing. Dr. Atkins further noted the Applicant endorsed bizarre symptoms such as auditory hallucinations. As a result, Dr. Atkins found there was no objective and valid evidence to indicate a psychological impairment/diagnosis as a result of the accident.
27In Dr. Saito’s records, the first time the Applicant endorsed feeling depressed was in December 3, 2015, almost a year post-accident. However, in this note, Dr. Saito noted “she is feeling depressed, her mother is quite ill”. The cause of her depressed feelings appears to be as a result of her mother’s illness and not the accident.
28The first time the Applicant requested formal psychological treatment post-accident was in April 2016, when she submitted a treatment plan for psychological treatment completed by Dr. Jon Mills, psychologist. This treatment plan was partially approved based on the opinion of Dr. Atkins.
29In the Applicant’s Psychological Assessment Report dated January 25, 2016, Dr. Jon Mills, Psychologist, opined the Applicant is unfit to return to work due to her significant psychological and physical symptoms. I gave less weight to Dr. Mills’ report for several reasons. First, as mentioned above, I do not place much weight on the Applicant’s self-reporting, which was the entire basis of Dr. Mills’ report. Dr. Mills noted in his report that the Applicant “was a fully functional, independent, and medically healthy adult prior to the MVA” and “she did not identify any chronic health issues”. It is clear the Applicant did not provide Dr. Mills with a complete history of her health pre-accident, because she did not disclose her pre-existing conditions.
30Second, Dr. Mills administered five psychological tests. For the sake of brevity, I will not list them, but all of the testing administered were subjective tests. There was no objective testing completed. Third, Dr. Mills focused on the Applicant’s physical injuries as the reasons why the Applicant could not continue her regular employment, which is outside his scope of practice. Dr. Mills does not opine she cannot return to work due to her psychological symptoms, he always combines it with her physical complaints, which are self-reported and outside his scope of practice. As mentioned above, psychological treatment was approved, but I am uncertain if the Applicant attended treatment with Dr. Mills, because there are no clinical notes and records submitted.
31The Applicant attended a consultation with a psychiatrist, Dr. Rodica Stefaniu, on April 14, 2016, almost a year and a half post-accident. The Applicant saw Dr. Stefaniu for a total of four additional visits: May 18, 2016, August 5, 2016, November 23, 2016 and February 24, 2017. Dr. Stefaniu’s notes were entered into evidence and she also testified at the hearing. I did not place much weight on Dr. Stefaniu’s notes as she testified at the hearing that she based all her conclusions on the Applicant’s self-reporting and I have found the Applicant to be an unreliable witness. Furthermore, even if I took Dr. Stefaniu’s notes at face value, in her November 23, 2016 record, just a few weeks before the 104 week mark, Dr. Stefaniu noted the Applicant reported she wanted to return to work on light duties, but could not because there were none available.
32Based on the evidence before me, I find the Applicant does not suffer from any physical or psychological impairments as a result of the accident that would render her unable to perform the essential tasks of her employment within 104 weeks of the accident. Therefore, she is not entitled to a pre-104 week IRB.
1. B) Post-104 Income Replacement Benefits
33The test for entitlement to a post-104 week IRB is set out in section 6(2)(b), which states: “The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is referred to as the “complete inability” test.
34The “complete inability” test for a post-104 IRB is a higher bar than the “substantial inability test” for a pre-104 IRB. Since the post-104 IRB test is more stringent than the pre-104 IRB test, it logically follows if the Applicant is not entitled to a pre-104 IRB, she cannot be entitled to a post-104 IRB unless there was a significant deterioration in her condition. The onus is on the Applicant to prove she is entitled to a post-104 IRB from December 11, 2016 and ongoing.
35My review of Dr. Saito’s clinical notes and records reveal the Applicant’s physical condition was stable and not deteriorating at the 104 week mark. It is worth noting that while the Applicant began to see Dr. Stefaniu in April 2016, a year and a half post-accident, she only attended four times and nothing in Dr. Stefaniu’s records indicate she meets the post-104 IRB test. As mentioned above, I do not have the records of Dr. Mills before me, so I only have Dr. Stefaniu’s notes as an indication of her psychological health at the post-104 week mark. Dr. Stefaniu testified at the hearing the Applicant’s condition stayed consistent throughout all her visits and did not change. Therefore, there was no deterioration in her psychological health.
36In support of her claim to a post-104 IRB, the Applicant submits she was successful in her application for a Canada Pension Plan (“CPP”) disability benefit. However, the Applicant’s successful application for CPP is not determinative of her entitlement to a post-104 week IRB. As mentioned above, the Applicant submitted her Medical Report from her CPP Application in which Dr. Saito stated she suffers from Mechanical Low Back Pain, Chronic Headaches, Right Scapular Pain, Elevated Cholesterol and Insomnia.
37Nowhere in Dr. Saito’s Medical Report to CPP does he list the motor vehicle accident, or any psychological diagnosis or symptoms. Under Question 2b. of the report, “When did you start treating the patient for the main medical condition?”, Dr. Saito wrote June 2012, which predates the accident of December 10, 2014. Furthermore, all these conditions were pre-existing conditions the Applicant suffered from prior to the accident. Therefore, the basis for her successful CPP application had nothing to do with the accident or any psychological sequelae.
38Based on all the reasons listed above, I find the Applicant is not entitled to a post-104 IRB.
2. Chiropractic Treatment Plans
39Section 14 and 15 of the Schedule provides an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The Applicant bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.
40During the hearing, the Applicant made insufficient submissions as to why the chiropractic treatment plans in dispute are reasonable and necessary. There was no discussion about the goals and benefits of the proposed treatment, and why the treatment plans are reasonable and necessary. In fact, the Applicant did not argue the treatment plans in dispute are reasonable and necessary. To be fair, the Applicant did argue Dr. Saito recommended physiotherapy and continues to recommend physiotherapy, but the treatment plans in dispute are for chiropractic treatment.
41The Applicant did not lead me to the treatment plans in dispute or any evidence in support of her ongoing need for treatment. The Applicant must direct the adjudicator to the relevant evidence in support of her case and explain why she meets the test based on this evidence. An applicant cannot simply leave it up to the adjudicator to connect the dots and make her case. The Applicant must explicitly explain why the evidence is supportive of her case. She has failed to do so.
42For the reasons above, I find the Applicant has not met her onus of proving on a balance of probabilities the treatment plans in dispute are reasonable and necessary. Therefore, the Applicant is not entitled to any of the medical benefits claimed.
3. Cost of the Disability Certificate (OCF-3)
43Section 25(1) states an insurer shall pay for reasonable fees charged and incurred for preparing a disability certificate if required under sections 21, 36 or 37. Section 21 deals with lost educational expenses. Section 36 deals with the initial application for a specified benefit. Section 37 deals with continuing entitlement to specified benefits. Section 37 is the only one relevant in this matter. Section 37 permits an insurer to request a new disability certificate in order to determine ongoing entitlement to a specified benefit.
44In this matter, the Respondent did not request the disability certificate in dispute. Furthermore, the disputed disability certificate was sent without the signature of the Applicant and therefore is an incomplete disability certificate. Since the Respondent did not request the disability certificate and it was not required under sections 21, 36 or 37 of the Schedule, the cost of preparing it is not payable pursuant to section 25(1). Therefore, the Applicant is not entitled to the cost of the disability certificate.
4. Costs of the Motion
45The Respondent brought a motion during the second day of the hearing for the Applicant’s complete employment records and costs of the motion. I issued an oral decision as well as written reasons in a separate Order with respect to the production request. I reserved my decision with respect to costs for this decision. For the sake of brevity, I will not reiterate my decision or reasons. I will only deal with the cost issue.
46The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs of the proceeding, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
47The Respondent requested costs for the motion, because the Respondent had requested the employment records many times, including in the Case Conference Summary and Response Forms, and by way of correspondence before and after the first day of this hearing, but the Applicant never answered any of the requests.
48The purpose of Rule 19.1 is clear: to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award which is an exceptional remedy. In this matter, the Applicant’s conduct does not meet the bar for costs. While I agree the employment records could have been obtained and produced earlier, both parties contributed to the delay. Accordingly, the Respondent is not entitled to costs of the motion.
CONCLUSION
49For the reasons outlined above, I find the Applicant is not entitled to any of the benefits in dispute or interest. Additionally, I find the Respondent is not entitled to costs of the motion.
Released: February 23, 2018
_____________________________
Anna Truong, Adjudicator