Citation: N.C. vs. TD Insurance Meloche Monnex, 2020 ONLAT 18-003656/AABS

Released Date: 03/24/2020

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:

N.C.

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

[N.C.], Applicant

Adam Kuciej, Counsel

For the Respondent:

Jennifer Sweitzer, Counsel

Noah Shapiro, Counsel

Court Reporter:

[B.P.]

Heard: In-Person

February 25, 2019 to March 1, 2019

HEARD: By Teleconference

March 8, 2019

1The applicant, N.C., was involved in an automobile accident on August 1, 2013 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The respondent, TD Insurance Meloche Monnex, denied the applicant’s claim for catastrophic impairment determination, attendant care benefits, housekeeping benefits, medical benefits and payment for cost of examinations. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to dispute the denial of those benefits.

2My determination of whether the applicant sustained a catastrophic impairment and his entitlement to the benefits claimed depends, to a large part, on whether he has a psychological condition that amounts to avoiding activity that that may cause a muscle spasm. The applicant must show that he has a mental or behavioural impairment (“psychological impairment”) that is so severe, that it significantly impedes useful functioning in an area of his life. The respondent submits that pain is subjective and, therefore, dependant upon whether the applicant is believable. The respondent submits that the applicant has made conflicting statements and surveillance evidence shows that he is not credible. I have found that the applicant is credible, but his evidence is not, at times, reliable. Based on all the evidence, I do not find that he has psychological impairments as a result of the accident that meet the test for catastrophic impairment.

II. PROCEDURAL ISSUES

3At the outset of the hearing, the parties raised the following procedural issues:

i. Whether the applicant’s psychological expert, Dr. Dory Becker, could comment on the report of the respondent’s psychological expert, Dr. Solomon, given that the applicant did not serve and file a report from Dr. Becker setting out her comments.

ii. Whether the respondent may add the issue of repayment of income replacement benefits; and

iii. Whether the Financial Services Commission Decision (“FSCO”) decision submitted by the respondent should be before me.

A. Dr. Becker’s Critique

4The respondent objected to Dr. Dory Becker, psychologist, making any comments about Dr. Solomon’s neuropsychological report because the applicant did not serve the respondent with a report indicating what her comments may be as required under LAT Rule 10.2(d). The applicant submitted he was unable to obtain a report from Dr. Becker in time for the hearing because he was not served with Dr. Solomon’s report until January 2019 and he had limited finances to obtain a report. Dr. Becker’s report was served on the second day of the hearing. I allowed Dr. Becker to comment on Dr. Solomon’s report because Dr. Becker’s testimony was potentially relevant. Any prejudice to the respondent was curable by allowing a short adjournment for its counsel to review the report and prepare for Dr. Becker’s cross-examination and to prepare Dr. Solomon for testifying.

B. The FSCO Decision

5The respondent sought to enter a copy of 2017 decision from FSCO as an exhibit at the hearing. The Arbitrator in the FSCO decision found that the applicant was not entitled to income replacement benefits (“IRBs”) for the period of time that the applicant claimed. The applicant objected to the FSCO decision being filed as an exhibit in this hearing. He relied on the Court of Appeal decision of R. v. Ghorvei.¹ In that criminal case, the accused sought to introduce transcripts from a different matter of the cross-examination of the arresting officer. The Court of Appeal determined that it was not permissible to cross-examine a witness on being disbelieved in other proceedings unless the witness was convicted of an offence arising out of giving contradictory evidence as result of prior evidence, as was the case with the FSCO decision on IRBs. The Court of Appeal decision is distinguishable because it was not dealing with a charge or a conviction of perjury of the witness in question. The Court of Appeal determined that it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case because the rejection is, in essence, no more than an opinion on the credibility of unrelated testimony given by the witness in the context of another case. R. v. Ghorvei is distinguishable because the applicant’s testimony is not unrelated. His testimony about his work history, ability to work and credibility were relevant to the issue of entitlement to and quantum of IRB. The same evidence is relevant to the issues of repayment of IRBs and catastrophic impairment as will be expanded on below. The FSCO decision is a public document and, for these reasons, I allowed it to be entered.

C. Added Issue of Repayment of Benefits

6The respondent submitted that the issue of repayment of income replacement benefits (“IRBs”) was left out inadvertently from the case conference Adjudicator’s order. The respondent listed the issue in its case conference summary. The respondent further submitted that the applicant’s previous counsel was aware three weeks before the hearing that it was a live issue, and that the repayment of benefits was to be added as an issue in the hearing. The applicant submits that the issue should not be before me because it was not set out in the case conference order.

7I find that the issue was left out of the case conference Adjudicator’s order inadvertently. Otherwise, I would have expected the case conference Adjudicator’s report to state that the respondent had withdrawn the issue in accordance with the Tribunal’s usual practice. It did not. I find there is no prejudice to the applicant. He had notice that the repayment was an issue in dispute in the respondent’s response and he knew that it had not withdrawn the issue. The applicant did not advise of any evidence he was prejudiced from calling or filing because the issue was not listed in the case conference order. He had the opportunity to testify in his defence against the respondent’s claim. It would be an inefficient use of the resources to have to hold another hearing to address the issue. For these reasons, I have determined the issue.

III. ISSUES

8The issues that I must determine are as follows:

i. Did the applicant sustain a catastrophic impairment?

ii. Is the applicant entitled to attendant care in the monthly amount of $1,191.19 as submitted on January 1, 2016 and denied on August 12, 2016?

iii. If so, how much of that attendant care was incurred?

iv. Is the applicant entitled to a medical benefit in the amount of $4,970.30 for chiropractic treatment as submitted in a treatment plan (OCF-18) by Dr. Grigoropolous on September 9, 2016 and denied on October 6, 2016?

v. Is the applicant entitled to a medical benefit in the amount of $8,812.00 for chiropractic treatment as submitted in a treatment plan (OCF-18) by Dr. Grigoropolous on December 12, 2016 and denied on January 5, 2017?

vi. Is the applicant entitled to a medical benefit in the amount of $1,895.32 for psychological services recommended by Dr. A. Pillai in a treatment plan (OCF-18) dated April 20, 2016, submitted on April 25, 2016 and denied on May 5, 2016?

vii. Is the applicant entitled to a medical benefit in the amount of $3,451.00 for chiropractic services as recommended by Dr. J. Weininger in a treatment plan (OCF-18) submitted on April 25, 2016 and denied on May 5, 2016?

viii. Is the applicant entitled to a medical benefit in the amount of $7,872.00 for chiropractic services recommended by Dr. Grigoropolous in a treatment plan (OCF-18) submitted on May 29, 2017 and denied on May 30, 2017?

ix. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $10,113.48 for chiropractic services as recommended by Dr. J. Weininger in a treatment plan (OCF-18) submitted on May 29, 2017 and denied on May 30, 2017?

x. Is the applicant entitled to a medical benefit in the amount of $8,600.00 for chiropractic services recommended by Dr. Grigoropolous in a treatment plan (OCF-18) submitted on June 21, 2017 and denied on June 28, 2017?

xi. Is the applicant entitled to a medical benefit in the amount of $4,070.00 for occupational therapy services as submitted by Elsa Poon on June 21, 2017 and denied on June 28, 2017?

xii. Is the applicant entitled to a medical benefit in the amount of $5,543.88 for pharmacotherapy as submitted by Dr. Jacky Seng Leong Chen on July 10, 2017 and denied on July 26, 2017?

xiii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $10,113.15 for chiropractic services as recommended by Dr. J. Weininger in a treatment plan (OCF-18) dated March 29, 2017submitted on March 31, 2017 and denied on April 12, 2017?

xiv. Is the applicant entitled to the cost of examinations by Dr. Harold Becker of Omega Medical Associates in the amount of $11,865.00 ($27,911.00 less amounts paid of $16,046.00 approved) as submitted on April 28, 2017 and denied on May 1, 2017? (withdrawn at the hearing)

xv. Is the applicant entitled to the cost of examinations in the amount of $2200.00 as submitted by Dr. Chen for a chronic pain assessment on January 20, 2017 and denied on February 14, 2017?

xvi. Is the applicant entitled to the cost of examinations in the amount of $2,748.83 as submitted by Dr. Chang for an orthopaedic assessment on March 1, 2017 and denied on March 16, 2017?

xvii. Is the applicant entitled to a housekeeping benefit in the amount of $11,457.00 for the period of January 16, 2016 to March 31, 2018 ($100 per week) as submitted on April 19, 2016 and denied on May 4, 2016 and, if so, what was incurred?

xviii. Is the applicant entitled to an award under s.10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

xix. Is the applicant entitled to interest on any overdue payment of benefits?

IV. ANALYSIS

9The applicant has exhausted the non-catastrophic limits for medical and rehabilitation benefits and the cost of examinations. The policy precludes him from claiming attendant care benefits and housekeeping benefits unless he sustained a catastrophic impairment. This means that, before I determine whether the applicant is entitled to the all the benefits claimed, he must first prove on a balance of probabilities that he sustained a catastrophic impairment.

A. Catastrophic Impairment

10In order to be deemed catastrophically impaired under the Schedule, the applicant must prove, on a balance of probabilities, that the impairments he suffered as a result of the accident have resulted in at least one Class 4 (marked) impairment in any of the four domains outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “AMA Guides”)² due to a mental or behavioural disorder.³ In the alternative, the applicant may also prove that he is catastrophically impaired (“CAT”) under Chapter 4 of the AMA Guides if he can demonstrate that he has a combination of physical and psychological impairment ratings from medical professionals that exceed the 55% Whole Person Impairment (“WPI”) threshold provided for in the Schedule.⁴ The applicant is only required to prove his case under one of Chapter 4 or 14 and, if successful, he is deemed to be CAT and is entitled to the extended tier of benefits that accompanies the designation and an increase in his policy limits for medical and rehabilitation benefits from $50,000.00 to $1,000,000.00.

(i) Whole Person Impairment Percentage of 55% or More

11The applicant relies on the multidisciplinary report of Omega Medical and, in particular, the testimony and report of Dr. Sangha, physiatrist, that he sustained a 25% physical WPI.⁵ The applicant also relies on the report and testimony of Dr. Dory Becker, psychologist, whose opinion was that the applicant sustained a 40% psychological WPI. The 40% psychological WPI combined with Dr. Sangha’s 25% physical WPI in accordance with the combination chart in the AMA Guides results in a 55% WPI.

12The respondent relies on the multidisciplinary insurer’s examination (“IE”) report of Viewpoint⁶ and, in particular, the report and testimony of Dr. Oshidari, physiatrist. Dr. Oshidari found that the applicant sustained a 0% physical WPI because his impairments were not rateable under the AMA Guides due to his non-organic presentation. If they were, Dr. Oshidari would have assigned a 19% physical WPI.

13The respondent also relies on the report and testimony of Dr. Lena Solomon, neuropsychologist, who assigned a 15% to 20% psychological WPI.

14If the applicant’s physical impairments were rateable, the combined WPI percentage from the IE assessors set out in the chart below would have been 36% WPI, which does not meet the 55% WPI required for catastrophic determination. The following chart also provides a comparison of the ratings obtained by Omega Medical:

	Omega Medical	Viewpoint
c-spine	15% WPI by Dr. Sangha	15% WPI by Dr. Oshidari
l-spine	5% WPI by Dr. Sangha	5% WPI by Dr. Oshidari
Lower extremity (hips)	6% WPI (4% for the right hip and 2% for the left hip by Dr. Sangha
tinnitus	1% by Dr. Mark Korman, otolaryngologist	1% by Dr. Jeffrey Mendelsohn, otolaryngologist
psychological	40% WPI by Dr. Dory Becker, psychologist	15-20% WPI by Dr. Lena Solomon, neuropsychologist
Total combined WPI%	55% WPI	36% WPI

15I do not find Dr. Oshidari’s 0% WPI for physical impairments useful because it rejects all of his objective findings. I prefer his alternate evaluation of 19% WPI, which is almost the same as Dr. Sangha’s except for the hip ratings.

a) Applicant’s Hips

16Dr. Sangha allotted an impairment rating for the heterotropic ossification of the applicant’s hips. Heterotropic ossification (“HO”) is the abnormal growth of bone in the soft tissues including the muscles and tendons. Dr. Oshidari did not allot anything for the applicant’s hips because he found that the HO was not related to the accident.

17Dr. Sangha allocated 6% WPI% for the hips and commented that further ratings of 15% to 30% WPI may apply if the applicant’s need for future hip replacement surgery is felt to be accident related. Relying on Schrump et al. v. Koot et al.,⁷ the applicant submits that if there is a reasonable chance that his condition will deteriorate, the potential deterioration should be taken into account in determining the WPI percentage. I do not find Schrump v. Koot supports the applicant’s submission. It was a Court of Appeal decision that determined the standard of proof of future damages in a tort action is a reasonable chance the damage will occur. It is distinguishable because it did not deal with accident benefits, but with future damages in tort where there is a limitation period of two years. There is no limitation period for applying for catastrophic impairment determination. I was provided with no other authority to support the applicant’s submission that a potential future deterioration should be considered in determining a WPI percentage.

18The respondent relies on the Financial Services Commission of Ontario (“FSCO”) decision of Taylor and Pembridge.⁸ I am not bound by FSCO decisions, but I find the reasoning in Taylor v. Pembridge persuasive. In that case, the Arbitrator rejected a WPI% rating based on the applicant undergoing future hip replacement surgery. The Arbitrator determined that those ratings were not in accordance with the AMA Guides, which require estimates based on current and not future findings. I also reject the applicant’s submission that any WPI% rating ought to be applied for future hip surgery.

19In addition, the wording of s. 3(5) of the Schedule does not support the applicant’s submission. Section 3(5) states that the WPI percentage does not apply unless two years have passed since the accident or a physician confirms it is unlikely that the applicant will cease to be catastrophically impaired. The two year mark shows an intention by the Legislature that the potential for improvement or deterioration is not a factor to consider in determining CAT after two years. Further, the definition of “catastrophic impairment” in the Schedule that applies in this case refers to an insured person who “has” a combination of impairments that results in 55 % WPI as opposed to “will have” or “would have” or “could have”. The plain, grammatical and ordinary meaning of the definition requires an actual present rating or opinion as to the actual rating and not a prediction, projection or estimate of the future. This is not a case of wording being ambiguous where it would be appropriate to construe the Schedule in a manner that favours the insured person.⁹

20Dr. Oshidari and Dr. Sangha agreed that the HO is likely caused by trauma or surgery. Dr. Sangha opined that the applicant sustained hip trauma in the accident that then developed in HO. Dr. Oshidari ruled out the accident as the cause of the HO of the applicant’s hips. I prefer Dr. Oshidari’ s opinion over Dr. Sangha’s opinion for the following reasons.

21Dr. Oshidari testified that if the accident was the cause of the HO, he would have expected to see bruising of the hip after the accident, but there was none.

22Dr. Sangha reported that he normally would not have thought that such extensive HO would be caused without extensive pelvic and hip fractures. However, Dr. Sangha testified that his opinion that the applicant’s HO was caused by the accident was supported by a comment he attributed to the applicant’s treating orthopaedic surgeon, Dr. Bogoch, in an MRI report taken of the applicant’s hip that the applicant had an “MVA four years prior.”¹⁰ Dr. Sangha’s testimony was that this comment supported his opinion that trauma from the accident was responsible for the HO. However, Dr. Bogoch has not stated in any report that the HO was caused by trauma sustained in the accident.

23Dr. Sangha also relied on the diagnosis by Dr. Grigoropoulos, chiropractor,¹¹ in a disability certificate dated August 2, 2013. Dr. Grigoropoulos diagnosed the applicant with dislocation, sprain and strain of the joints and ligaments of the lumbar spine and pelvis. Dr. Sangha admitted on cross-examination that the applicant did not dislocate his hips or pelvis. He testified that this is a diagnosis commonly used by chiropractors to indicate pain complaints. However, the first mention of hip pain in the chiropractor’s records is September 6, 2013--more than a month after the accident. The first mention of hip pain in the records of the applicant’s family physician, Dr. Gordon Arbess, was not until a couple of years after the accident. The only “hip” reference prior to that was in March 14, 2014, when the applicant reported to Dr. Arbess that his chiropractor recommended an MRI of his lower spine because the chiropractor felt the applicant had an instability or pelvic tilt. There is no record of the applicant complaining of hip pain at that time.

24At this Tribunal hearing, the applicant did not testify that his hip was one of the areas he injured or was painful after the accident. He testified that he was not aware of any hip problems until he saw Dr. Chang, orthopaedic specialist, in March 2017. At that time, the problem was tightness in the applicant’s hips.

25The transcript of the applicant’s testimony at the FSCO arbitration was filed. In that arbitration hearing, the applicant testified that he experienced hip pain right after the accident and that he told the nurse at the emergency department that he had hip pain. However, no hip pain complaints were recorded in the hospital emergency records.¹²

26Considering the above and given the amount of time that has passed, I give more weight to the medical records and find that the lack of any reference to hip pain in the hospital emergency records is because the applicant did not injure his hip from the accident. I find that one complaint of hip pain a month after the accident with no further complaints for a number of years does not support Dr. Sangha’s theory that the applicant sustained hip trauma in the accident that has developed into HO. I prefer Dr. Oshidari’ s opinion because the temporal relationship between the applicant’s hip complaints and the accident is remote.

27On cross-examination, Dr. Sangha admitted that previous trauma from sports suffered by the applicant to his knees could have been the trauma that caused the HO. I find that the more probable cause of the HO are the applicant’s knee injuries and surgeries. Dr. Sangha admitted that Dr. Bogoch, the applicant’s treating orthopaedic specialist, said hip replacement may be required because the applicant has osteoarthritis of the hip. He also admitted that the osteoarthritis could be caused from the natural aging process and from the applicant’s history of sports activity. Dr. Sangha testified that he disagreed with Dr. Bogoch’s opinion that osteoarthritis is the cause of the applicant’s pain and stiffness in the hips.¹³ In his own medical report, however, Dr. Sangha deferred to an orthopaedic specialist. I find the applicant has not established that his present hip complaints are related to the accident as there are many other causes that are more likely, whereas the accident is a remote possibility.

28The applicant submits that I should prefer Dr. Sangha’s opinion over that of Dr. Oshidari because Dr. Oshidari reported on inconsistencies displayed by the applicant, but he did not address those inconsistencies with the applicant during his assessment. The applicant relies on the Court of Appeal decision of Bruff-Murphy v. Gunawardena, 2017 ONCA 502. The Court of Appeal in that case determined that the trial judge should not have allowed the respondent’s expert witness to testify because he acted as an advocate for the respondent rather than an impartial assessor. The psychiatrist reported on inconsistencies in the applicant’s information. The Court of Appeal determined that it was fundamentally unfair to the plaintiff not to give her an opportunity to explain the alleged inconsistencies in the information she provided.

29Unlike the Bruff-Murphy decision, I did not find that Dr. Oshidari was advocating on behalf of the respondent or usurping my role in assessing credibility. He explained how his findings from his assessment related to his diagnosis and provided no opinion on the applicant’s credibility. Dr. Oshidari’ s opinion of non-organic findings did not require him to seek an explanation from the applicant as to why he reacted in certain ways or why he experienced specific sensations during the assessment that led to Dr. Oshidari’s determination. This was not a case of Dr. Oshidari asking the applicant questions that would be similar to a cross-examination such as was the case in Bruff Murphy. Having said that, Dr. Oshidari did ask the applicant about why he walked with an antalgic gait to the left. For these reasons, I am unable to accept the applicant’s submission that Dr. Oshidari’s evidence should be given little weight.

30I also give more weight to Dr. Oshidari opinion because Dr. Sangha believed the applicant was two years younger than he actually is, and listed his date of birth as eight years later than it actually was.

31For all of these reasons I find that Dr. Oshidari’ s opinion is more reliable. I find that it is more probable that the cause of the HO is the applicant’s pre-accident knee injuries and ACL repair surgery. For this reason, I do not find that any impairment rating should be allotted to the applicant’s hips.

b) Psychological WPI Ratings

32There is considerable discrepancy in the psychological impairment rating. Dr. Dory Becker’s opinion was that the applicant’s mental and behavioural impairments fell within the mild to moderate range, except at times he was in the severe range of concentration, pace and persistence because he avoided activity that aggravated his pain complaints or terminated the activity when it caused pain. Dr. Becker testified that she awarded a Global Assessment of Function (“GAF”) of 41 to 50 because she believed the applicant was unable to keep a job for longer than a day or two on at least four occasions. A GAF of 41-50 means he has serious symptoms such as suicidal ideation, severe obsessional rituals, frequent shoplifting or any serious impairment in social, occupational, or school functioning such as no friends, unable to keep a job. Dr. Becker converted the GAF of 45 to 50 to a 30% to 40% WPI% using the California Labour Code Schedule’s conversions.¹⁴

33Dr. Becker diagnosed the applicant with a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition. Dr. Solomon agreed with Dr. Becker’s diagnosis of Somatic symptom disorder with predominant pain. Dr. Solomon reported that the applicant displayed severe depressive symptoms on testing. However, Dr. Solomon disagreed with the GAF assigned by Dr. Becker and assigned a GAF between 60 and 70. This is about the same as the GAF assigned by Dr. Pillai, a psychologist who assessed the applicant on referral from his chiropractor in February 2016.

34Dr. Becker determined that pain is the predominant focus of the applicant’s clinical presentation and contributes to significant distress and impairments in his functioning, including an inability to work and engage in some of his pre-accident activities of daily living. She stated that the applicant engaged in significant avoidance behaviours because he worries about exacerbating his pain and triggering spasms and he reported difficulty coping with pain. Dr. Becker’s opinion of the applicant’s GAF was based on him being unable to work for more than two months at a time after the accident. Her assessment was based on the applicant being competitively employable at the time of the accident.

35I give more weight to Dr. Solomon’s opinion over Dr. Becker’s opinion for the following reasons. Dr. Solomon’s 15% to 20% WPI is more in line with the applicant having a mild to moderate impairment as found by both psychologists. The applicant’s employer at the time of the accident wrote that, after the accident, the applicant was unable to work consistently. Their employment records show that the applicant was calling in to take time off work due to migraine headaches, which led to his being fired. However, none of the applicant’s clinical notes and records filed as exhibits show any complaints of migraines or any other type of headache.

36The evidence is that the applicant worked from 6 weeks up to 4 months at a time after the accident. This is no different than his pre-accident work history. His post-accident work history is about the same as his pre-accident work history of working for five different employers in 2012 and of only being employed for less than two months by his employer at the time of the accident. Further, Dr. Becker’s opinion is contrary to the applicant’s belief that he can work on a part-time basis, but does not look for part-time work because it does not pay well.

37Dr. Becker did not review all the documents. She received a summary prepared by a physiotherapist and then reviewed some of the documents based on her opinion of what may be relevant. She did not review the clinical notes and records of Dr. Arbess and was unaware that the applicant had pre-accident back complaints to the extent that he was receiving treatment from a chiropractor and had diagnostic studies of his back conducted in 2012.

38Dr. Becker did not address that the applicant was able to sit for almost 3 hours during his psychological assessment at Omega Medical and for 8 hours during Dr. Solomon’s assessment with only one break, which is inconsistent with his claims of being unable to work because of an inability to sit. Dr. Becker was also not aware that the applicant had travelled to Cuba, which is also inconsistent with his claim that he is unable to work because he cannot sit for longer than 10 minutes. The applicant testified that he spends most of his time at home reading or on the computer, which is inconsistent with Dr. Becker’s understanding that he cannot do prolonged work on a computer.

39Dr. Becker observed the applicant for only 1.4 hours; Dr. Solomon, however, observed him over a period of 8.5 hours. For these reasons, I prefer Dr. Solomon’s opinion.

40Dr. Solomon reported a range of psychological WPI%. Giving the applicant the benefit of doubt, I find that Dr. Solomon’s maximum psychological rating of 20% WPI is appropriate.

(ii) Marked or Class 4 Impairment due to Mental or Behavioural Disorder

41The applicant must show on a balance of probabilities that he has at least a marked or Class 4 impairment in any one¹⁵ of the following four spheres of function due to a mental or behavioural disorder:

a. activities of daily living;

b. social functioning;

c. concentration, persistence, and pace; or

d. deterioration or decompensation in work or work like settings.

42Both Dr. Becker and Dr. Solomon agreed that the applicant sustained a Class 2 or mild impairment in three out of the four spheres of function. Where they disagree is the level of impairment in concentration, persistence and pace. Dr. Solomon’s opinion was that the applicant demonstrated a Class 2 mild impairment in concentration, persistence and pace. The applicant relies on the opinion of Dr. Becker that he appears to display a psychological impairment at times as low as a Class 2 or mild impairment and, at other times, as high as a Class 4 marked impairment in concentration, persistence and pace. Dr. Becker testified that the applicant was able to manage his cognitive tasks. However, she determined that he exhibited a Class 4 marked impairment at times because, when he is faced with physical tasks that trigger pain or spasms and he worries about an exacerbation of pain and triggering spasms, he either avoids them or terminates them prematurely.

43Dr. Solomon testified that an impairment rating should be assigned for the class of impairment that the applicant is at most time because the impairment is supposed to be permanent. The applicant submits that the Schedule does not require that a Class 4 marked impairment must be consistent and not variable. He submits that the where a condition fluctuates, the highest impairment rating should be used. The applicant relies on the statement in Chapter 3 of the AMA Guides that resolution of a lumbar spine impairment after surgery does not reduce the impairment rating. However, the AMA Guides also state that if the impairment is resolving, changing, unstable, or expected to change significantly within 12 months, it is not a permanent impairment, and it should not be described as one under the AMA Guides criteria.¹⁶ Since Chapter 3 of the AMA Guides deals with musculoskeletal impairments, I do not find that it assists the applicant.

44Dr. Solomon’s methodology is more in keeping with the AMA Guides, which notes that some chronic mental disorders undergo a remission or improvement that may be intermittent, long-term, or short-term, and may occur in stages rather than all at once.¹⁷ The AMA Guides state that the evaluator should judge the possible duration of the impairment that remains, whether remission is likely to be fast or slow, whether it will be partial or total, and whether the impairment is likely to remain stable or to change.¹⁸ Given these comments, I find Dr. Solomon’s logic is reasonable and accept her methodology.¹⁹ According to her, if the applicant is at a Class 2 mild impairment most of the time, that is how he should be rated. If he is at a Class 4 more than he is a Class 2, then he should be assigned a Class 4 marked impairment.

45Even if I rejected Dr. Solomon’s methodology, for the reasons I have already discussed above and for the reasons that follow, I prefer Dr. Solomon’s opinion over Dr. Becker’s.

46Dr. Becker relied on the report of Shala Kara, an occupational therapist from Omega Medical who assessed the applicant over two days. Dr. Becker said that the applicant was highly avoidant of activity due to fear of pain, but the applicant’s evidence was that he would engage in activity despite it causing pain. The applicant testified that he avoided activity when experiencing a back spasm. However, I do not find the evidence that the applicant avoids activity is reliable. For example, Ms. Kara reported that the applicant was unable to perform a computer task because he experienced extreme pain when he tried to use the computer mouse. However, the applicant advised Ms. Kara that he is on the computer most days. The applicant’s evidence was that he could not work because he could be stuck in traffic for an hour which would be problematic if he had a back spasm. However, surveillance taken of the applicant shows him driving a vehicle. He underwent an in-home assessment at the respondent’s request on April 13, 2016 by Sarah Lee, occupational therapist. The applicant advised her that he had been suffering from back spasms for the past three days. Ms. Lee observed that the applicant was independent with his self care and activities of daily living, despite having the spasm.²⁰ The applicant also testified that he would do activities such as bend down and pick up an item off the ground because no one else would. When asked about specific instances, the applicant’s testimony did not support Dr. Becker’s opinion that the applicant avoids tasks.

47The applicant persisted in an eight hour assessment with Dr. Solomon, which is contrary to Dr. Becker’s opinion that he stops activities or avoids activities out of fear of pain. Further, the applicant testified that his pain is worse in the winter. However, he persisted with Dr. Solomon’s eight-hour assessment, which was conducted in the winter, and only took a lunch break despite being offered other opportunities to break. The applicant’s actions during Dr. Solomon’s assessment are not consistent with Dr. Becker’s opinion that the applicant avoids activity and work.

48Accordingly, I find that the applicant sustained a Class 2 mild impairment in concentration, persistence and pace. The applicant has failed to establish on a balance of probabilities that he sustained at least a Class 4 marked psychological impairment in any one of the four spheres of function. He has not proven that he sustained a catastrophic impairment based on a psychological or behavioural impairment.

B. Medical Benefits, Attendant Care Benefits and Housekeeping Benefits

49Because the applicant has failed to establish that he sustained a catastrophic impairment, I need not consider whether he is entitled to the medical benefits, the attendant care benefits, the housekeeping and home maintenance benefits or the payments for cost of examinations claimed. No attendant care benefits are payable beyond 104 weeks after the accident. Housekeeping and home maintenance benefits are not available under the applicant’s policy. He has expended his policy limits for medical benefits and cost of examinations. Accordingly, the applicant’s claims for medical benefits, attendant care benefits, housekeeping and home maintenance benefits and payment for cost of examinations are dismissed.

C. Repayment of Benefits

50An insured person is liable to repay an insurer benefits paid in error or paid as a result of fraud or misrepresentation. If the benefits were paid in error, the insured person is not required to pay the benefits unless the insurer requested the repayment within 12 months of when the benefit was paid. There is no limit on when the insurer is required to provide notice of a repayment if the benefits were paid as a result of wilful misrepresentation or fraud.²¹ I find that willful misrepresentation or fraud requires an intention to deceive.

51The respondent is seeking a repayment of IRBs in the amount of $20,996.68 that was paid to the applicant from March 29, 2014 to September 14, 2014. The respondent requested the repayment on January 17, 2018 and claims that the IRBs were paid as a result of wilful misrepresentation. The wilful misrepresentation alleged is that the applicant failed to notify the respondent that he had returned to work and that he received disability benefits. FSCO determined that the applicant was entitled to 12 weeks of IRBs up to October 30, 2013 at the rate of $281.30 per week plus interest. This amounts to $3,375.60 not including interest. The respondent paid the applicant IRBs at the rate of $368.15 per week from August 8, 2013 for a total of $24,372.40 (66.20 weeks) and is seeking a repayment of the difference between these two amounts.

52The respondent has not proven on a balance of probabilities that the applicant willfully misrepresented his employment status or committed a fraud. The respondent calculated the IRB initially based on the Employer’s Confirmation of Income Form (OCF-2). The applicant was initially paid IRBs at the rate of $368.15 per week. During the period for which he was paid IRBs, he worked from October 31, 2013 to January 7, 2014, and from March 10, 2014 to May 23, 2014. FSCO determined that the applicant’s IRB was less than he was initially paid because the applicant did not declare his income from […] on his 2013 tax return. I accept the applicant’s evidence that it was because he did not have a T4 slip from […] when he filed his 2013 tax returns. The applicant’s employment file from […] confirms that he did, in fact, earn income from […]. I find that the respondent has failed to prove that the initial calculation of the IRB was due to a misrepresentation by the applicant. Accordingly, the respondent is not entitled to repayment of the overpayment of $86.85 per week ($368.15 less $281.30 per week) paid between August 8 to October 31, 2013.

53The applicant did not notify the respondent that he returned to work. He submits that he tried to. He testified that he phoned the insurance adjuster a number of times and left messages for her, but she never returned his calls. He even attended at her office twice but was unable to speak to her. He testified that he never advised her in those messages that he had returned to work. The adjuster’s notes were not filed, nor was the adjuster called as a witness to dispute or corroborate the applicant’s evidence.

54The applicant told his s.25 attendant care assessor, Phyliss Belle, on January 16, 2016 that he did not return to work as a sales representative after the accident. He did, however, tell the respondent’s occupational therapist, Sarah Lee, on April 16, 2016 that he had tried a return to work at […] and obtained work at [a data company] after the accident. At that point in time he was no longer receiving accident benefits. I find that the applicant’s admission to the respondent’s assessors that he worked after the accident does not support the respondent’s claim that the applicant willfully misrepresented that he did not earn any income. The respondent submits that the applicant misled the respondent about his employment prior to the accident in order to get an employee discount. The respondent submits that shows a tendency for the applicant to make a misrepresentation in order to get a financial discount. The applicant did at one time work at the company he claimed through a temporary agency. Therefore, I do not agree with the respondent’s submission that the applicant has a tendency to make a misrepresentation is enough to reject the applicant’s evidence that he tried to contact the respondent’s adjuster. Accordingly, I find that the respondent has failed to prove on a balance of probabilities that the applicant made a wilful misrepresentation that he did not earn any income or receive any collateral benefits.

55I am not satisfied that the respondent has proven on a balance of probabilities that the applicant fraudulently or willfully misrepresented that he could not engage in the essential tasks of his pre-accident occupation because of his accident injuries during those periods of time for which he was paid IRBs. The applicant’s evidence was that he was struggling with work due to his accident injuries. I find that he did not work from January 8 to March 9 and from May 24 to December 14, 2014. The parties disputed whether the reason the applicant did not work was that he was disabled from the accident or some other reason. The applicant failed to satisfy the FSCO Arbitrator that he did not work during that period of time because he met the test for IRBs. This does not mean that the applicant perpetrated a fraud or willfully misrepresented to the respondent that his pain complaints were caused by the accident. The applicant has a number of experts whose opinion were otherwise. Accordingly, the respondent has failed to prove on a balance of probabilities that the applicant wilfully misrepresented that his inability to work the 37 weeks and 3 days from January 8 to March 9, 2014 and from May 24 to December 14, 2014 was because of his accident injuries. The respondent has failed to prove on a balance of probabilities that it paid IRBs to the applicant because of fraud or willful misrepresentation. The respondent did not provide notice to the applicant that it was claiming a repayment of IRBs until well after the 12 month notice period. Accordingly, the respondent is not entitled to a repayment of IRBs.

D. O. Reg. 664 Award and Interest

56As there are no benefits owing, no interest is owed.

57Under s.10 of Ontario Regulation 664, I may award a lump sum of up to 50 per cent of the amount to which the applicant is entitled if I find that the respondent unreasonably withheld or delayed payments to the applicant. The applicant claims entitlement to an award because the respondent unreasonably delayed payment of his IRBs until March 2014. FSCO previously determined that there were no IRBs owed to him. I am not in any position to revisit that issue. I have found that the applicant is not entitled to any of the benefits claimed in this hearing. Accordingly, as there are no benefits owed to the applicant, he is not entitled an award under O. Reg.664 and this claim is dismissed.

V. ORDER

58The applicant’s claims are dismissed.

59The respondent’s claim for repayment of IRBs is dismissed.

Released: March 24, 2020