E.M. v. The Guarantee Company of North America, 2019 CanLII 101475

Citation: E.M. vs. The Guarantee Company of North America, 2019 ONLAT 18-000674/AABS

Tribunal File No.:18-000674/AABS

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:

E.M.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

Adjudicator: Nidhi Punyarthi

Appearances: Alex Nikolaev, Counsel for the Applicant Dwain Burns, Counsel for the Respondent

Heard: In-Person on June 18, 19, and 20, 2019

OVERVIEW

1The applicant was involved in an accident on November 18, 2015 (the "2015 Accident"). He claimed certain benefits in relation to the 2015 Accident from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 ("Schedule"). The respondent denied the applicant's claim for benefits. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") for an adjudication of the dispute arising from his denied benefits.

ISSUES IN DISPUTE

2The application proceeded to a hearing before me. The issues in dispute were as follows:

i. Is the applicant entitled to non-earner benefits in the amount of $185.00 per week from May 18, 2016 to date and ongoing?

ii. Is the applicant entitled to the cost of examinations in the amount of $19,356.24 for multidisciplinary non-earner assessments recommended by HAL Disability Management Inc. in a treatment plan (OCF-18) that was dated May 8, 2017?

iii. Is the applicant entitled to interest on any overdue payments of benefits?

iv. Is the applicant entitled to an award under Ontario Regulation 664, R.R.O. 1990, Reg. 664 ("Regulation 664") on the basis that the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3I find as follows:

i. The applicant is not entitled to non-earner benefits, as he did not suffer a complete inability to carry on a normal life as a result of the 2015 Accident.

ii. The applicant is not entitled to payment of the cost of examinations for multidisciplinary non-earner assessments, as the cost being claimed for these examinations is not reasonable or necessary.

iii. The applicant is not entitled to interest as I have not found any benefits to be owing to him.

iv. The applicant is not entitled to an award under Regulation 664, as the respondent did not unreasonably withhold or delay payments to him.

ANALYSIS

A. Non-Earner Benefits Are Not Payable

4In order to be entitled to a non-earner benefit, an insured person must meet a set of criteria prescribed in the Schedule. These criteria include the conditions that: (i) the impairment of the insured person be "as a result of an accident," and that (ii) the insured person "suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident."¹

5It was therefore incumbent on the applicant to satisfy me, on a balance of probabilities, that the relevant impairments were the result of the 2015 Accident. Here, the applicant did not meet that burden. I was also not satisfied that the applicant had reached a state of improvement in his health prior to the 2015 Accident, and that his health subsequently deteriorated because of the 2015 Accident. My reasons for these conclusions are provided in the following paragraphs.

(i) The Disability Certificates

6The applicant relied on two Disability Certificates (OCF-3s) in support of his claim for non-earner benefits. The first Disability Certificate was signed by the applicant's treating physiotherapist, Alex Singh, on March 9, 2016. The second Disability Certificate was signed by the applicant's family doctor, Dr. Chien Pham, on April 4, 2017. Both Disability Certificates indicated that the applicant had a complete inability to carry on a normal life as a result of the 2015 Accident.²

7The activities most affected by the 2015 Accident, and identified as meaningful for this applicant, were going to the gym, taking out the garbage, and going grocery shopping.³ Essentially, it was indicated that the 2015 Accident injured the applicant in such a way that his mobility and ability to carry on these listed activities was significantly diminished. It was also indicated that he had depression because of the 2015 Accident.⁴

(ii) The Cause of the Applicant's Impairments

8The evidence at the hearing supported the overall finding that the relevant impairments were not caused by the 2015 Accident. In particular, the evidence supported the following findings of fact:

i. The applicant's physical limitations dated back to 2009, and not to the 2015 Accident, as evidenced by a report completed by Dr. Pham and provided to the Canada Revenue Agency;⁵

ii. Following a subsequent accident on December 6, 2017 (the "2017 Accident") and subsequent claims for benefits, the applicant indicated to an assessor during an insurer's examination that his acute pains from the 2015 Accident had resolved long before the 2017 Accident.⁶

iii. The applicant did not strike his right knee or tear his right knee meniscus during the 2015 Accident, as per the records from the day of the 2015 Accident as well as the clinical notes and records of the family doctor for several months afterwards,⁷ and the surgery of the applicant's right knee was due to degenerative osteoarthritis and not due to the 2015 Accident;⁸ and

iv. The applicant's depression pre-dated the 2015 Accident.⁹

9Each of these findings is discussed in more detail in the paragraphs that follow.

(A) Dr. Pham's report to the Canada Revenue Agency, dated December 12, 2016

10Approximately one year after the 2015 Accident, Dr. Pham completed a report for the Canada Revenue Agency on behalf of the applicant in support of his claim for the disability tax credit. In this form, Dr. Pham indicated, among other things, that it takes the applicant about 10 minutes to walk 100 metres, that he walks very slowly, and that he has to stop frequently. On the form, Dr. Pham also indicated that 2009 was the year when the applicant first became unable to walk or took an inordinate amount of time in doing so all or substantially all the time (90% of the time). There was no mention of the 2015 Accident anywhere on this form.

11Given the statement made on this form that the applicant has been substantially limited in his walking since 2009, there was a question as to whether the physical limitations identified on the Disability Certificate were caused by the 2015 Accident.

(B) Reports to an IE assessor in relation to the 2017 Accident

12I was provided with copies of insurer's examination reports for the applicant's benefit claims in relation to the 2017 Accident. These reports were ordered to be produced as part of the evidentiary record for this hearing by the order of Adjudicator Maedel dated March 16, 2019.

13The applicant submitted that I should give "little or no weight" to these reports in the present proceeding. These reports, however, contain references to the applicant's medical condition in the period between the 2015 Accident and the 2017 Accident. In particular, the report of Dr. Zabielauskas, physiatrist, provides: "[the applicant] reported he was in a previous motor vehicle accident when he rear-ended someone on November 18, 2015, and had some therapy at that time, but the acute pains had long ago resolved before the accident of December 6, 2017."

14This information from Dr. Zabielauskas' report was not consistent with the information in the Disability Certificates. On a balance of probabilities, I find that the evidence tendered at this hearing supported the information in Dr. Zabielauskas' report as opposed to the information in the Disability Certificates. I therefore gave Dr. Zabielauskas' report more weight than the Disability Certificates in arriving at my final decision.

(C) No Right Knee Issues As A Result of the 2015 Accident

15The applicant submitted that his right knee struck the dashboard during the 2015 Accident. There was, however, no reference to this event in the contemporaneous records or in the records generated for several months following the 2015 Accident. Given the volume and consistency of these records (both contemporaneous to the 2015 Accident and in the several months following the 2015 Accident), I prefer these records to the statement of the applicant that he struck his right knee during the 2015 Accident.

16The records generated on the date of the 2015 Accident indicate the following:

i. The Motor Vehicle Accident Report indicates that the applicant was travelling at 20 km/hr when his vehicle rear-ended another vehicle.

ii. The Collision Statement completed by the applicant does not make any reference to his right knee being injured during the 2015 Accident. His injuries from the 2015 Accident are indicated as "whiplash and headache," and "pain in [his] neck". He checked off that he was declining an ambulance.

iii. The report of the paramedics states: "patient able to drive car to gas station. Patient out of car and ambulatory on scene upon arrival. Complaining of muscular neck pain – both sides and a headache."

iv. The hospital emergency record of that day states: "no numbness/tingling/weakness to arms or legs. Complaining of pain to lateral neck bilaterally." The discharge diagnosis was "neck sprain."

17In the months following the 2015 Accident, there was no mention of the applicant having injured his right knee or torn the right knee meniscus during the 2015 Accident. The clinical notes and records ("CNRs") of Dr. Pham produced from the relevant timeframe indicate the following information:

i. On November 20, 2015 (two days after the 2015 Accident), Dr. Pham noted: "MVA 2 days ago. Hit another car in rear-end. Pt drove Honda accord. Hit Altima Nissan. Head moved forward and backward. Headache forehead. Neck pain and upper back pain radiating down arms. Low back pain. Was given Ultradol by ER," and "Neck pain. Whiplash disorder. Upper and lower back pain."

ii. On January 14, 2016, Dr. Pham noted that the applicant was working on his car and injured his right thumb while doing so.

iii. On January 21, 2016, Dr. Pham notes the applicant's complaints at the time, but makes no reference to the right knee being an issue because of the 2015 Accident.

iv. On January 29, 2016, Dr. Pham noted: "since MVA, neck pain and back pain worsens… now radiating down both arms… has less mobility. Has to be more self aware. Not able to cook. Less house work. Son has to do more house work… neck whiplash disorder. Low back pain. Mouth ulcers." While there is a record of issues the applicant is experiencing after the 2015 Accident, there is no reference to the striking of his right knee during that event.

v. On February 11, 2016, Dr. Pham notes the applicant's complaints at the time, but makes no reference to the right knee being an issue because of the 2015 Accident.

vi. On February 18, 2016, Dr. Pham's note refers to a sore that the applicant had on his right lower leg.

vii. On March 10, 2016, Dr. Pham's note indicates that the applicant's right lower leg sore and buttock sores had improved.

viii. On June 2, 2016, Dr. Pham's note indicates that the applicant's dosage of depression medication was increased. As will be discussed later in this decision, the applicant's depression appears to have pre-dated the 2015 Accident.

ix. On July 28, 2016, Dr. Pham notes the applicant's complaints at the time, but makes no reference to the right knee being an issue because of the 2015 Accident.

18Dr. Pham's note from August 19, 2016, refers to right knee pain complaints. The note does not indicate that this was related to the 2015 Accident.

19On March 24, 2017, there is a note from Dr. Pham that indicates that the applicant "has right knee pain laterally since the [2015 Accident]." I am not persuaded that this statement is accurate given the significant number of clinical notes and records immediately following the event that made no reference to right knee pain.

20Furthermore, I find it is clear from the applicant's medical records that he eventually had right knee replacement surgery because he was suffering from degenerative arthritis that was not linked to the accident.

21The MRI report from May 19, 2017 indicates that the applicant had a history of "chronic right knee pain, osteoarthritis, and fluid in the MCL." A "short oblique undersurface tear at the junction of the posterior horn and body of the menial meniscus" was noted, but there was no evidence tendered to relate this tear to the 2015 Accident. An orthopedic assessment was recommended.

22Following his assessment of the applicant on October 27, 2017, Dr. Getahun indicated that the applicant had osteoarthritis in the right knee. Following the 2017 Accident, Dr. Getahun performed a right knee arthroplasty (replacement surgery) on May 9, 2018. There is no evidence before me that persuasively connects the applicant's need for the surgery with the 2015 Accident.

(D) Pre-existing Depression

23Dr. Pham filled out a Health Status Report for the applicant on March 4, 2004, in relation to his claim for income support under the Ontario Disability Support Program. In that report, Dr. Pham indicated that the applicant suffered from depression, among other conditions, at the time. He also indicated that the applicant had "low self esteem due to back pain, depression, and obesity," and that the applicant had "very low motivation because of back pain, depression."

24Furthermore, on March 13, 2015, there was a report by Dr. Bryan Temple, neurologist, addressed to Dr. Pham. In that report, there was a reference indicating that the applicant had a "history of depression," among other conditions.

25The evidence therefore demonstrated that the applicant did not begin suffering from depression as a result of the 2015 Accident. Rather, his depression had set on before the 2015 Accident. Accordingly, I am not satisfied that the note of Dr. Pham from March 24, 2017, where he indicated that the applicant "has felt depressed since [the 2015 Accident]," was accurate.

26The preponderance of the evidence therefore supports the finding that the applicant had issues such as pain and physical limitations, as well as depression, prior to and not as a result of the 2015 Accident.

(iii) Whether the Applicant's Health Had Improved Prior to the 2015 Accident

27When presented with the evidence of his pre-existing condition, the applicant indicated that he used to be obese, and that he had reduced his weight and was doing well prior to the 2015 Accident. He also testified that he was then set back as a direct result of the 2015 Accident. Dr. Pham, who also testified at the hearing, corroborated this statement.

28While the evidence tendered at the hearing supports that the applicant lost weight, it does not support the statement that the applicant had also gained functioning that he previously did not have before the 2015 Accident. The evidence at the hearing demonstrated the following:

i. Dr. Pham's reports from November 30, 2003, and March 4, 2004 identify pre-existing conditions that included obesity, depression, and chronic lower back pain that limited physical movement significantly.

ii. The report from Dr. Temple from March 15, 2015, about 8 months prior to the 2015 Accident, indicated that the applicant was suffering from memory loss, chronic lower back pain, chronic cervical pain, chronic abdominal pain, a recent thyroid biopsy, sleep apnea treated with weight loss, depression, enlarged prostate, and rheumatoid arthritis.

iii. Between March 2015 and May 2015, the applicant visited the gym at the YMCA only 4 times. This was the record of visits produced by the YMCA for the entire year preceding the 2015 Accident.

iv. On June 25, 2015, about 5 months before the 2015 Accident, Dr. Pham's note indicated that the applicant had chronic low back pain, spinal stenosis, facet joint hypertrophy, chronic neck pain, psoriatic arthritis, and chronic kidney disease, among other conditions.

v. When the applicant attended the Karmy Pain Clinic (a chronic pain management clinic) in the months prior to the 2015 Accident, he was complaining of pain in various parts of his body.

vi. On August 14, 2015, about 3 months before the 2015 Accident, when the applicant consulted Dr. Shari Ghanny, the resulting report indicated, among other things: "He is quite fatigued. He tells me that he watches what he eats because he can no longer exercise from the arthritis, so he needs to control his weight through diet."

29The applicant was, therefore, still trying to control his weight in the months immediately before the 2015 Accident. Unlike what was suggested in his testimony and in the testimony of Dr. Pham, he had not returned to a normal level of functioning before the 2015 Accident. He was already limited in his physical activities. He was undergoing a chronic pain program. The medical records referred to above do not support the statement that the applicant had returned to a normal level of functioning that was subsequently disrupted by the 2015 Accident.

30Therefore, I am not persuaded, on a balance of probabilities, that the applicant's impairments and their impact on his ability to carry on a normal life were the result of the 2015 Accident. I find the applicant has failed to meet one of the key criteria for entitlement to non-earner benefits under the Schedule.

31Given my finding that the evidence does not demonstrate that the applicant's functioning was impacted by the 2015 Accident, there is no need for me to compare the applicant's activities before and after the 2015 Accident as set out in Heath v. Economical Mutual Insurance, 2009 ONCA 391, at para. 50.

32For these reasons, I find the applicant is not entitled to non-earner benefits in relation to the 2015 Accident.

B. The Cost of Examinations Is Not Payable

33In order for an insurer to pay for costs of examinations claimed, they have to be reasonable and necessary.¹⁰

34The applicant is claiming payment for the cost of multidisciplinary assessments in relation to his claim for non-earner benefits from the 2015 Accident. The amount of this claim is $19,356.24. The amount claimed was for a psychological assessment, an orthopedic assessment, an occupational therapy/in-home assessment, an executive summary, completion of the treatment plan, transportation services, and a neurological assessment.¹¹

35I have already found that the evidence at the hearing did not support the applicant's claim for non-earner benefits arising from the 2015 Accident. A review of the applicant's medical file from the periods before and after the 2015 Accident would have revealed that there was no support for the statements made in the Disability Certificates in relation to the applicant's claim for non-earner benefits. Therefore, it was not necessary, in my view, to commission the numerous multidisciplinary assessments for non-earner benefits.

36However, the multidisciplinary assessments were conducted and the reports were produced as evidence at the hearing. Of note is the fact that these reports refer to the applicant striking his right knee upon impact during the 2015 Accident.

37Again, the evidence does not support the suggestion that the applicant struck his right knee during the 2015 Accident. The assessors for the multidisciplinary assessments appear to have simply recorded the applicant's statement to that effect.

38A careful review of the relevant records from the day of and the months following the 2015 Accident would have revealed that there is no mention of the applicant striking his knee during that event. The reports in question mention the striking of the knee as an undisputed fact. It is apparent that a careful review of relevant documentation was not conducted when the reports were prepared. The fees claimed for assessment services that lack a careful and thorough review of relevant documentation cannot, in my view, be characterized as reasonable.

39The respondent has also submitted that the claim for the cost of examinations does not contain a breakdown of the amount claimed. The respondent is correct in submitting that a breakdown would have helped assess the reasonableness of the amount of the fees claimed. However, it is not necessary for me to address the amount of the costs claimed given that I have already found the assessments to be unnecessary, and the fees claimed to be unreasonable.

40For the reasons given above, the applicant is not entitled to the costs of the examinations for the multidisciplinary non-earner assessments.

C. Interest Is Not Payable

41Since no benefits are overdue, interest is not payable under section 51 of the Schedule.

D. No Basis For An Award Under Ontario Regulation 664

42Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled to under the Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest as prescribed.

43In order for an award to be payable under Regulation 664, the applicant has to satisfy me, on a balance of probabilities, that the respondent engaged in conduct that "unreasonably" withheld or delayed payment of a benefit. On the facts, the conduct has to be "behaviour that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate".¹²

44There is no evidence before me of such conduct on the part of the respondent. The respondent was correct in denying the applicant's claims for the benefits that remained in dispute.

45The applicant makes a further submission that the respondent acted contrary to the provisions of the Schedule when it denied the applicant's claim for non-earner benefits. The applicant states that the correct and lawful approach for the respondent would have been to pay the claim for non-earner benefits pending the insurer's examinations. The applicant submits that the respondent failed to do this, and therefore acted unreasonably.

46Instead of interpreting whether the respondent complied with or did not comply with the relevant Schedule that was in place, I will state the following.

47An error, misunderstanding, or misinterpretation by an insurer of the Schedule or in its assessment of a benefit claim, even if same were made out on the evidence (and I confirm that no such finding against the respondent has been made in this case), does not amount to conduct that is "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate." If an insurer is found to not comply with the Schedule, it does not automatically mean that the insurer is liable to pay an award under Regulation 664.¹³ Something additional and significant, other than acting contrary to the Schedule, is necessary on the facts to meet the threshold of unreasonable conduct that merits an award under Regulation 664.

48The evidence in this case does not demonstrate to me that the respondent engaged in unreasonable conduct while handling the applicant's claims. At all material times, the decisions made by the respondent in relation to the applicant's claims for benefits were reasonable. The respondent reviewed the information received, communicated with the applicant, asked for additional information, and required the applicant to attend examinations, all in fulfilment of its obligation to adjust the applicant's claims. I did not find the respondent to be acting in bad faith or unreasonably in this case.

49For these reasons, the applicant is not entitled to an award under Regulation 664.

CONCLUSION

50The applicant is not entitled to the non-earner benefits, costs of examinations, interest or award claimed. The application is dismissed.

Date of Decision: September 24, 2019

______________________

Nidhi Punyarthi

Adjudicator

Footnotes

1. 1Schedule, s.12(1).
2. 2Disability Certificate (OCF-3) signed by Alex Singh, physiotherapist, dated March 9, 2016 (Exhibit 2 to the hearing proceedings), and Disability Certificate (OCF-3) signed by Dr. Chien Pham, the applicant's family doctor, dated April 4, 2017 (Tab A3 of the Hearing Brief of the Applicant).
3. 3OCF-3 signed by Dr. Pham, at p.3 of 5.
4. 4OCF-3 signed by Dr. Pham, at Part 5 "Injury and Sequelae Information," p.3 of 5.
5. 5Report of Dr. Chien Pham to the Canada Revenue Agency dated December 12, 2016 (Tab 8 of the Respondent's Brief of Documents).
6. 6Report of Dr. Zabielauskas under s.44 of the Schedule in relation to the accident dated December 6, 2017, arising from an assessment dated December 6, 2018 (Tab 3 of the Respondent's Supplementary Brief of Documents).
7. 7Hospital Emergency Record dated November 18, 2015 (Tab 5 of the Applicant's as well as Respondent's Brief of Documents); Collision Statement dated November 18, 2015, completed by the applicant (Tab 3 of the Respondent's Brief of Documents); Paramedic Report dated November 18, 2015 (Tab 4 of the Respondent's Brief of Documents); Clinical Notes and Records (CNRs) of Dr. Chien Pham dated November 20, 2015, January 14, 2016, January 21, 2016, January 29, 2016, February 11, 2016, February 18, 2016, March 10, 2016, June 2, 2016, July 28, 2016.
8. 8Examination-in-chief of the applicant at the hearing; MRI dated May 19, 2017, and surgical report records dated May 9, 2018; Dr. Getahun report from assessment dated October 27, 2017.
9. 9Medical report signed by Dr. Chien Pham dated November 30, 2003 (Tab 9 of the Respondent's Brief of Documents); Health Status Report of Dr. Pham dated March 4, 2004 (Tab 10 of the Respondent's Brief of Documents); letter from Dr. Bryan Temple, neurologist dated March 13, 2015 (Tab 6 of the Respondent's Brief of Documents (also tendered by applicant)); CNR of Dr. Pham dated June 25, 2015; Karmy Pain Clinic CNRs from July 2015 to the date of the subject accident; Dr. Shari Ghanny Consultation Report dated August 14, 2015 (Exhibit 1 at the hearing); CNR of Dr. Pham dated September 22, 2015; record of YMCA attendances (Tab 14 of the Respondent's Brief of Documents).
10. 10Schedule, s. 25(1)3.
11. 11Exhibit 5 to the hearing proceedings.
12. 1217-008585 v. Certas Direct Insurance Company, 2018 CanLII 83532 (ON LAT), at para. 49.
13. 1316-002346 v. Unifund Assurance Company, 2017 CanLII 81583 (ON LAT), at para. 29.