S.B.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 51274

Citation: S. B. S vs. Wawanesa Mutual Insurance Company, 2020 ONLAT 17-006935/AABS

Released Date: 06/30/2020

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:

S.B.S.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the applicant: Ashley Frydrych, Counsel

Stanley Razenberg

For the respondent: Darrell March, Counsel

Heard: In-Person Hearing: May 27 to 31, 2019 and July 8 to 10, 2019

OVERVIEW

1The applicant, S.S., was involved in an automobile accident on June 4, 2015 and sought benefits from the respondent, Wawanesa Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She was employed as a branch manager of a [loan store] and received income replacement benefits (“IRBs”) after the accident in the amount of $400.00 per week. The respondent denied IRBs effective March 7, 2016 and denied the applicant’s request for psychological and chiropractic treatment. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) disputing those denials.

2The applicant claims that as a result of the injuries she sustained in the accident, she has suffered psychological and physical impairments that prevent her from engaging in the essential tasks of her pre-accident occupation (the pre-104 week test) or any other occupation for which she is reasonably suited (the post-104 week test). The applicant submits that she has contracted diabetes as a result of the accident, which contributes to her inability to work. The respondent denied IRBs on the basis the applicant did not meet the substantial inability test. It disputes that the applicant’s present psychological and physical impairments were caused by this accident. The respondent submits that the applicant is not credible and that her present impairments were caused by her involvement in a second automobile accident on March 7, 2016 and her other health issues, which are unrelated to the first accident of June 4, 2015.

3It is clear that the applicant has suffered some devastating health issues that have affected her ability to work. However, the applicant has failed to prove that she is entitled to IRBs or psychological treatment as a result of the first accident. She has proven her entitlement to the chiropractic treatment claimed.

PROCEDURAL ISSUES

4The applicant brought a motion at the outset of the hearing to exclude the respondent’s expert witnesses. The motion is dismissed.

5The applicant sought to have her treating occupational therapist and her treating psychologist qualified as experts. I found that they were not qualified as experts and could testify only as a treating practitioners.

6The applicant also sought to call the adjuster, Fanny Lamb, as a witness. I determined that Fanny Lamb could testify.

7The applicant served and filed a new document brief beyond the dates ordered and without seeking any order extending the time for doing so. However, I allowed documents from the applicant’s brief to be filed as exhibits. The applicant also sought to add as an exhibit, the raw test data of the respondent’s psychological insurance examination assessor (“IE”), Dr. Amina Syed. I allowed the data to be filed as an exhibit despite the respondent’s objections.

A. Exclusion of Respondent’s Expert Witnesses

8The applicant brought a motion to exclude the evidence of all of the respondent’s IE assessors. The applicant claimed that the respondent failed to comply with the order of Vice Chair Hunter dated February 2019 to produce the complete files of the IE assessors, including the files and log notes from the assessment centre who organised the IEs, by March 22, 2019. I find that the respondent made best efforts to comply with the order. Three request letters were sent by the counsel for the respondent to the IE assessment centre requesting all documentation relating to the treatment, assessment and/or history of the applicant dated March 4, March 11 and March 18, 2019. According to the letters, the law clerk for the respondent’s counsel also phoned the IE assessment centre and spoke with someone there on March 8, 2019. The respondent provided copies of its letters to the applicant on March 22, 2019.

9The applicant submits that the respondent did not comply with the order because it did not send correspondence directly to the IE assessors, but only to the IE assessment centre. I disagree and found, based on the respondent’s letters, that it made best efforts to obtain the records.

10The respondent continued to try to obtain the records of the assessment centre and sent letters directly to the assessors after receiving no response from the assessment centre. Except for Dr. Syed, the assessors advised that they did not have any clinical notes or records. Dr. Syed advised that she had raw test data and would only produce it to the applicant’s psychologist. The applicant provided the respondent with the name of the psychologist, Dr. Cathryn Harris, but not her contact information. The applicant submitted that she did not provide Dr. Harris’ contact information because it was included in her file, which the respondent had. I find it was unreasonable for the applicant to expect the respondent to search through document briefs of materials to locate the contact information.

11The applicant submitted that she was prejudiced by not having Dr. Syed’s raw test data because Dr. Harris has been unable to review the raw test data and prepare a rebuttal report. The respondent submits that there can be no prejudice because the deadline to provide any expert reports was January 4, 2019 and that the order imposing that deadline has not been varied by any other order. The applicant submits that Vice Chair Hunter varied the date for serving further expert reports to March 22, 2019. I find that Vice Chair Hunter did not intend to extend the time for serving additional expert reports, otherwise, he would have allowed time for the applicant’s experts to review the clinical notes of the IE assessors beyond the deadline for production of those records of March 22, 2019.

12The applicant also submits she is prejudiced as she is unable to properly cross-examine Dr. Syed on her testing. Without having the benefit of Dr. Harris to review the raw data and advise counsel on what to cross-examine Dr. Syed on, I agree. The applicant submitted that if I was inclined to allow the evidence of the IE assessors, that the matter be adjourned in order to allow Dr. Harris to review Dr. Syed’s raw test data. There have already been two adjournments of the hearing on this file. I was not inclined to allow another one. Having said that, the hearing was adjourned for about five weeks due to the need for more time to complete the hearing than was initially scheduled. During that time, Dr. Harris received and reviewed Dr. Syed’s clinical notes and raw test data.

13The applicant did not seek to summons the IE assessment centre, despite knowing since March 22, 2019 that there had been no response to no no less than four requests by the respondent for the IE assessment centre’s files. Instead, the applicant brought a motion a couple of weeks before the hearing to exclude the evidence. That motion was dismissed with a right for the applicant to bring a motion again before me. As submitted by the respondent, there is no property in a witness. This is clear by the respondent’s reserving the right to summons Dr. Judith Pilowsky, a psychologist who was listed as a witness for the applicant, if the applicant decided not to call her to testify. For these reasons, I dismissed the applicant’s motion to exclude the evidence of the respondent’s expert witnesses.

B. Expertise of a Treating Health Practitioner

14The guiding principles for qualification of a witness as an expert are set out by the Court of Appeal in Moore v. Getahun, 2015 ONCA 55. The basic common law principle is that the duty of an expert witness is:

…to provide opinion evidence that is fair, objective and non-partisan…Expert evidence should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert witness should provide independent assistance to the trier of fact by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate.¹

1. Dr. Harris, Psychologist

15Dr. Harris is a psychologist retained by Great West Life (“GWL”), the applicant’s long term disability insurer, to assess the applicant and to subsequently treat the applicant. The respondent was provided with an acknowledgement of expert’s duty form signed by Dr. Harris 20 days before the hearing, which is not in compliance with the LAT Rule 10.3(a) that it be provided 30 days before.² No motion was brought to extend the time. The acknowledgment of expert’s duty was notice to the respondent of the applicant’s intent. The respondent did not disclose its objection to Dr. Harris being called as an expert witness until the first day of the hearing. However, the applicant did not serve Dr. Harris’ resume or any documentation setting out her qualifications, training and experience as required by LAT Rule 10.2(c). Therefore, the respondent was not in a position to notify the applicant of any challenges to Dr. Harris based on her training, education and experience. However, the lack of a resume should not have prevented the respondent from giving notice to the applicant of the other basis for challenging Dr. Harris as an expert. The respondent submitted, and I agree, that Dr. Harris could not qualify as an expert because she did not and could not provide a report under LAT Rule 10.2(d) that sets out the instructions she received in relation to the proceeding. That is because she did not receive any instructions in relation to the hearing at the Tribunal or any of the issues in dispute before the Tribunal. Dr. Harris’ instructions were from GWL and the applicant’s claim for long term disability benefits, not statutory accident benefits.

16The respondent denied that Dr. Harris was a treating psychologist because she was retained by and paid by GWL. I disagree. Automobile insurers often refer claimants to preferred vendors for treatment, just as GWL did in the applicant’s case. Just because an insurer pays for the treatment by its preferred vendor does not mean that the preferred vendor is any less of a treating health practitioner.

17The respondent submitted that the prejudice against it is implied when the LAT Rules are not complied with, as in this case. The applicant submitted she would be prejudiced if Dr. Harris did not testify. I agreed and found that the prejudice to the applicant outweighed the prejudice to the respondent. I found that Dr. Harris’ evidence, as a treating practitioner, was relevant to the matters in issue. Any concerns the respondent had with her testimony would go to the weight to be given to Dr. Harris’ evidence. Accordingly, I allowed Dr. Harris to testify and provide her opinion as a treating psychologist, but not as an expert in psychology.

2. Nat Ko, Occupational Therapist

18The applicant sought to have her treating occupational therapist, Nat Ko (“Ko”), qualified as an expert. She relied on the fact that Ko had filled an acknowledgement of expert’s duty. Ko did not, however, provide a report on the matters in issue. They³ were also retained by GWL to provide treatment in an effort to get the applicant back to work. The applicant acknowledged in her opening statement that GWL is not concerned with causation, unlike the respondent. The applicant submitted that the respondent did not provide any notice that it was challenging the qualifications of Ko under LAT Rule 10.4 when Ko’s acknowledgement of expert’s duty was served on the respondent. I agree with the applicant that the notice from the respondent advising it was challenging Ko’s qualification as an expert was called for. However, I refused to qualify Ko as an expert in occupational therapy because they are the applicant’s treating occupational therapist. This means Ko owes a duty to the applicant. However, if Ko were qualified as an expert, their duty is not to the applicant, but to the Tribunal as an impartial witness. This could result in a conflict of duties. Therefore, I heard Ko’s testimony as the applicant’s treating occupational therapist, not as an expert occupational therapist.

C. Adjuster

19The applicant sought to call the adjuster, Fanny Lam, as a witness. The respondent objected on the basis the adjuster was not identified in the case conference Adjudicator’s order. The applicant submitted that the order identified a witness to be determined, listed as “TBD.” The respondent was notified that the adjuster was the witness determined to be called by a letter dated March 22, 2019. I find that the March 22, 2019 letter was adequate notice to the respondent of the name of the witness.

20The respondent submitted that there must be a clear indication of why the testimony of a witness is necessary. I find that the adjuster’s testimony was relevant to the claim of an award under O. Reg. 664 and the applicant’s allegations that the respondent unnecessarily scheduled the applicant for IEs. Accordingly, I allowed the applicant to call the adjuster to testify.

D. Dr. Syed’s Raw Test Data

21The respondent objected to filing Dr. Syed’s raw test data as an exhibit because they were not served in accordance with the LAT Rules and they were not relevant. I allowed the raw data to be made an exhibit because the delay in producing the data was mostly due to the IE assessment centre’s failure to respond to the production requests. The data was produced by the applicant, who presumably obtained it from Dr. Harris. The applicant used it to cross-examine Dr. Syed. The data was referenced by Dr. Syed and, for these reasons, I allowed it to be entered as an exhibit.

ISSUES

22The issues that I must determine are as follows:

i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period March 7, 2016 to date and ongoing?

ii. Is the applicant entitled to receive a medical benefit in the amount of $4,202.07 for psychological services, recommended by Dr. Judith Pilowsky, psychologist of Excel Medical Diagnostics, in a treatment plan dated September 23, 2015, denied by the respondent on December 2, 2015?

iii. Is the applicant entitled to receive a medical benefit in the amount of $3,015.29 for chiropractic services, recommended by Dr. Karen Johnson, chiropractor, of Airport Rehab in a treatment plan dated November 26, 2015, denied by the respondent on December 9, 2015?

iv. Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

vi. Is the respondent entitled to costs of the proceeding?

23My determination of the issues is dependent upon whether the applicant’s present impairments were caused by the June 4, 2015 accident or by her other health issues and the second accident of March 7, 2017.

EVIDENCE and ANALYSIS

24The respondent submits that if the applicant is unable to work, it is not because of any impairment resulting from injuries she sustained in the accident, but from post-accident injuries or medical conditions that are not related to the accident. The applicant submits that she has pain and psychological complaints that were caused by the accident and prevent her from being able to work.

25The evidence regarding the applicant’s pain and psychological complaints is largely based on the applicant’s self-reporting. For me to accept the applicant’s testimony that she is unable to work because of pain and psychological impairments caused by the accident, I must find her evidence to be credible and reliable. The respondent submits that the applicant’s answers are not consistent and not reliable. I agree.

26The applicant testified at the hearing and, for the most part, I found that her testimony was inconsistent and unreliable. The applicant may believe the history that she disclosed, but she is a very poor historian and consistently exaggerated her complaints as indicated in the following comparison chart that provides some, but not all the examples:

Applicant’s Testimony	Medical Records
Her pre-accident menses were normal.	She was diagnosed with uterine adenomyosis4 in 2011, but a pelvic ultrasound for extended menses bleeding taken in 2014 was negative.5 Dr. Gbade Ayoade, OB Gyn, reported that the typical menstrual cycle for the applicant was irregular, lasting 12 to 13 days every one to three months.6
Her pre-accident health was fine. She had some hip and back complaints which did not interfere with her ability to work.	The applicant underwent a course of physiotherapy in 2009 for right rectus femoris and adducter longus (hip and thigh) tendinopathy. She was prescribed orthotics in 2010.7 She was prescribed Arthrotec for her back pain complaints in July 2014.8
She had some headaches caused by new cleaning solvents at work that were resolved prior to the accident.	She complained of headaches for three weeks in September 2014.9
The day after the accident she had a pain in her neck, shoulder and back, a headache, a swollen ankle, a sore hip, and pain to her right elbow, hand, finger, and knee. She could not walk.	The applicant’s complaints the day after the accident were of pain to her neck, shoulder, upper back, right temple, seat belt area, right knee and right foot.10
The day after the accident she started bleeding vaginally and internally and it was not her menses.	Dr. Lai recorded that the applicant’s menses started on June 4, 2015. She was referred to a gynecologist on July 29, 2015 for her heavy prolonged periods and some dyspareunia (difficult or painful sexual intercourse).11 She was treated for cystitis with antibiotics.12 She ended up having a D&C in November 2015 to address her irregular menses.13
After the accident she was bed ridden for six months.	She attended at her physicians’ appointments, for blood work and for other diagnostics 30 times14 in the six month post accident period and at Airport Rehab at least 19 times in July 2015 alone.15 She was able to walk over to the nail salon as needed.16
She was seen by an occupational therapist right after the accident, at which point the applicant could not walk, was in a diabetic coma, was vomiting and had diarrhea.	When she saw Dr. Lai at his office on June 11, 2015, her complaints were of neck, back and right foot ache. Everything else was normal. As of June 22, 2015, the applicant’s only complaints were of shoulder and neck aches. She was advised that day of her Type II diabetes diagnosis.17 By September 2015, she was using Janumet, a drug for treating type 2 Diabetes, for her nausea and diarrhea with improvement.18 There is no record of a diabetic coma or mobility issues.

27The applicant’s explanations for why the documentary evidence did not corroborate her testimony were not cohesive or logical. For example, the medical records do not indicate that she was in a diabetic coma or that she could not move at all, contrary to the applicant’s testimony. She claimed one reason she cannot work is because she cannot read, yet she testified that she has read all the medical reports sent to her. She testified that she had excellent recall of some conversations with the insurer’s assessors and poor recall for other conversations with her treating practitioners because she lost her memory in 2016. She claimed that her statement taken on June 29, 2015 was not accurate because her blood sugar levels were low and that she signed it under duress. However, the records of her family physician, Dr. Lai, show that she was on diabetes medication by June 29, 2015 and do not disclose any cognitive issues. Nor was there any evidence of a threat to the applicant by the respondent that resulted in her statement being made under duress.

28The applicant attributed too many of the discrepancies between the medical records and her testimony to the incompetence of the health practitioners for me to accept that the all of the health practitioners recorded the applicant’s information incorrectly. I find that the applicant’s testimony that she suffered from memory loss in 2016 as a result of her post partum eclampsia is a more reasonable explanation for the discrepancies. Accordingly, I accept that she has memory loss. For all of these reasons, where her testimony conflicts with the medical records or the statements she provided, I give more weight to the documentary evidence.

A. Entitlement to IRBs

29Entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(2)(b) states that an IRB is not payable after 104 weeks unless the insured suffers a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. The applicant is seeking both pre-104 week IRBs and post-104 week IRBs. The onus to prove entitlement rests with the insured. ¹⁹

30To determine the applicant’s entitlement to IRBs, the inquiry can be divided into four steps:

1. What are the essential tasks of the applicant’s employment?

2. Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?

3. If so, what is the cause of the applicant’s inability to perform the essential tasks of her employment?

4. If the cause of her inability are her impairments sustained as a result of the June 4, 2015 accident, does she suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience?

31The resolution of these issues turns on the onus. The applicant bears the onus of proving her entitlement to IRBs on a balance of probabilities. There are two elements to this burden, evidentiary and persuasive. The applicant must provide enough evidence to support a finding of her entitlement to IRBs. The applicant must also marshal that evidence in a manner that persuades the me of her entitlement on a balance of probabilities.²⁰

1. Essential Tasks of the Applicant’s Employment

32Based on the applicant’s testimony and the written description of her job²¹ as a senior branch manager of a [loan store], the essential tasks of the applicant’s job consisted of the following:

5. opening and closing the store;

6. hiring, training, scheduling and supervising about 4 to 5 staff;

7. store inventory, ordering cash and store audits (every quarter);

8. scheduling Brinks deliveries;

9. compiling marketing budgets and statements;

10. store upkeep and maintenance;

11. serving customers including handling customer complaints, cashing cheques and assisting with finance and debt;

12. document maintenance and storage;

13. frequent standing and operating office equipment, a monitor, a phone and keyboarding;

14. moderate sitting, bending, reaching overhead and to the side; and,

15. lifting up to 25 pounds on a moderate frequency.

33The applicant testified that she usually worked 60 hours per week, sometimes 80 hours, and was required to be on her feet 95% of the time. I find that based on the applicant’s payroll records, ²² she usually worked 35 to 44 hours per week.

2. Substantial Inability

34The applicant submits that since March 7, 2016, she has continued to suffer a substantial inability to engage in the essential tasks of her pre-accident employment as a result of her accident impairments. She testified that she is still unable to return to work because she cannot concentrate or think, she has headaches and numbers confuse her, she cannot talk to people, she cannot move, she has incontinence, cannot get out of bed, her hip pops out causing her to fall, she is dizzy and cannot stand due to pain in her feet, and she cannot hear.

35I accept that the applicant is substantially unable to engage in the essential tasks of her pre-accident occupation as a branch manager for a money lending company. According to her testimony, I find that the applicant is able to conduct prayer meetings at her house and is able to read complicated reports. However, the applicant’s mother testified that the applicant now displays a very short temper. Although I find that the applicant had a demanding communication style with her employees before the accident,²³ I accept that her present psychological impairments have affected her ability to cater to customers. However, I do not find that the physical or psychological impairments that prevent the applicant from engaging in the essential tasks of her pre-accident work are as a result of the accident for the reasons discussed below.

3. Causation

36The respondent submits that if the applicant is unable to work it is because of her post-accident medical problems, the injuries she sustained in the second accident of March 7, 2016 and the legal issues with her ex-fiancé. The respondent submits that the proper test for causation is the but for test. But for the accident, the applicant would still be in the same condition she is today. I agree.

37The applicant submits that because her complaints, impairments or injuries from her post-accident medical issues and her second accident are no different than those from the first accident, the material contribution test must be applied and not the “but for” test of causation. She relies on the reconsideration decision of 16-000372 v Unica Insurance Inc.²⁴ I do not find that the decision supports the applicant’s submissions.

3816-000372 v Unica involved a dismissal of a claim for attendant care benefits (“ACB”). The insurer denied the ACB contending that the need for the ACB was due to a subsequent and unrelated accident. The claimant had knee problems pre-dating the automobile accident and then had a fall after the accident necessitating surgery. The claimant alleged that the fall was caused by the knee injury sustained in the MVA. The Tribunal determined the injury was caused by the claimant chasing her daughter. The dismissal of the claimant’s application in that case was upheld on reconsideration. The claimant submitted that the Tribunal erred in applying the “but for” test instead of the material contribution test. The Executive Chair determined that the distinction between the “but for” and the material contribution test was meaningless because the applicant in that case failed to adduce evidence to support either test.

39The material contribution test is only available where it is impossible to prove causation using the but for test due to factors beyond the plaintiff's control.²⁵ That is not the case here. Even if it were, the applicant has failed to adduce cogent evidence to support that the events and health issues that arose after the accident have any connection to the accident or are indistinguishable from the first accident. Even if they were, I would still find that the accident has had a very minimal role in the applicant’s present condition compared to the other medical issues and stresses the applicant has had to deal with.

40I find that the applicant’s physical and psychological health issues arising from her pregnancies and her second accident are intervening events. The applicant submits that for an intervening event to take place, the applicant’s complaints, injuries or impairments from those other events must be different from the injuries, complaints or impairments from the first accident. She did not provide any authority or reasoning for her proposition. An intervening event is an event that breaks the chain of causation. There is no requirement that the event that breaks the chain of causation cause a different injury than the originating injury.²⁶ Accordingly, I reject her characterisation of an intervening event.

a) Physical Health

41The applicant was a passenger in her ex-fiancé’s vehicle when it was struck by a car that made a U-turn in front of the applicant’s vehicle on June 4, 2015. The applicant declined the assistance of an ambulance but presented at the hospital almost two hours after the accident. At the hospital, the applicant complained of pain to the right shoulder and her entire right side. She did not have any other complaints ²⁷

42The applicant testified that her menses started on the day of the accident and did not stop for months. According to her medical records, she eventually underwent a D&C to address her uterine adenomyosis in November 2015 with good result.

43The applicant submits that her post-accident medical issues and the second accident are not intervening events. She submits that for them to be intervening events, injuries from the first accident had to have been getting better. The applicant claims she was getting worse however, did not provide any cogent evidence in this respect. In fact, Dr. Lai’s records clearly show that the applicant’s complaints from her accident injuries were resolving, despite having ongoing menses. However, once she was advised on June 22, 2015 that she was diagnosed with Type II Diabetes,²⁸ her physical complaints started to increase.

44The applicant testified that she started a course of physiotherapy in June or July 2015 and was driven to her treatments. As of September 23, 2015, the applicant’s complaints were of moderate to severe pain in her neck, back, head, tailbone, right hip, hands, elbow, shoulders, and feet and headaches.²⁹ The applicant was referred to Dr. Maria Bagovich, rheumatologist, who initially saw the applicant on November 22, 2015. At that time her complaints were of pain in her neck, shoulders, shoulder blades, between her shoulder blades and low back pain, paresthesia in her entire arms and knees intermittently, intermittent pinching in her fingers, burning feet and shooting pains into her head, sharp pain into her left PSI area on walking and sleep difficulty. Dr. Bagovich diagnosed the applicant with fibromyalgia, reversible kyphosis, right medial plantar fascia pain and supraclavicular fatty deposits (both likely due to diabetes), mechanical back pain, and significant ples planus (flat feet).³⁰ On December 22, 2015, Dr. Bagovich also diagnosed the applicant with trochanteric (hip) enthesitis, which is an inflammation of the entheses, the sites where tendons or ligaments insert into the bone, for which the applicant received a cortisone shot and was referred for physiotherapy.³¹

45The applicant became pregnant in January 2016. She testified that before she became pregnant in 2016, her complaints from the accident were anxiety, sleep deprivation, headache, earache, ear clogging, pain in her spine, neck and shoulders and that she could not move. There is nothing in the records substantiating that the applicant had any ear or hearing issues.

46The applicant told Dr. Bagovich on March 8, 2016 that she was feeling depressed, anxious about her pregnancy and the fact that her application for long term disability benefits had been denied.³² However, the applicant advised her GWL occupational therapist that she was intending to return to work on modified duties around the time that the second accident occurred.³³ She was then involved in the second accident of March 13, 2016. She was taken to emergency by ambulance and released that night. The next day, she complained of pain in her neck, shoulder, upper back, low back and right rib.³⁴

47The applicant testified that she could not return to work before the second accident because she was in a diabetic coma, she could not eat, and she did not know if her baby was going to live. She also testified that her symptoms from her pregnancy were that she could not move or go outside except for appointments and she spent all her time on her couch.

48The applicant testified that she was on her way to meet with her district manager when the second accident occurred. She denied the meeting was for the purpose of organizing her return modified return to work and testified that she did not have a meeting scheduled with her district manager, she was only dropping in on her. Her explanation and evidence conflicts with the evidence and testimony of Ko, the occupational therapist retained by GWL.

49Ko reported and testified that the applicant told her she was returning to work when the second accident occurred.³⁵ I found Ko gave their evidence in a straightforward, honest fashion. I find Ko’s evidence is more reliable than the applicant’s testimony. Ko’s evidence was corroborated by Dr. Harris who testified that the applicant was on her way to meet with her district manager to discuss a return to work on modified duties. Accordingly, I find that the applicant was ready to return to work when the second accident happened. At that point, the applicant was pregnant and was concerned about the effect the accident had on her baby. The only issues affecting the applicant’s return to work at that point were her pregnancy and her non-accident related health issues.

50Dr. Bagovich prepared a report dated March 14, 2016 for the applicant’s LTD carrier, Great West Life.³⁶ She diagnosed the applicant’s primary problem as fibromyalgia with secondary problems of musculoskeletal – manifestations of diabetes (trochanteric bursitis/enthesopathy). Dr. Bagovich stated that the condition is a result of injury due to an accident, precipitated by the MVA of June 2015. To the best of her knowledge, the applicant did not have the same or a similar condition previously.

51The respondent submits that little weight should be given to Dr. Bagovich’s opinion as to the cause of the fibromyalgia because she did not discuss the applicant’s irregular menses and if there was any causal relation with the fibromyalgia. I agree. Nor did Dr. Bagovich discuss the role, if any, that the applicant’s plantar fasciitis and hip bursitis play in the fibromyalgia diagnosis or why those health issues have no causal effect on the fibromyalgia. Even if I am incorrect, there is no evidence that the applicant’s fibromyalgia prevents the applicant from working.

52What is clear from Dr. Bagovich’s report is that the applicant had a number of complaints that Dr. Bagovich attributed to her diabetes. The applicant relies on the report of Dr. Soriano as support that her diabetes was caused by the accident. Dr. Soriano is an orthopaedic specialist who conducted an IE of the applicant at the respondent’s request. Dr. Soriano reported that, bearing in mind there is a strong family history of diabetes, it is possible that the stress of the accident may have precipitated the inevitable onset of diabetes.³⁷ I do not find that Dr. Soriano’s comments prove, on a balance of probabilities, that the accident caused her diabetes. A possibility of something happening does not satisfy the applicant’s onus of proof. Further, Dr. Soriano also stated that the diabetes was inevitable, and, in any event, it was outside of his area of expertise. Further, as will be discussed below, the applicant was diagnosed with diabetes before there was any complaint of stress, anxiety or any other psychological complaint was ever recorded.

53Dr. Soriano’s musculoskeletal examination of the applicant was normal. He found that any impairment that the applicant had was purely pain related and that the applicant had no physical restrictions. His opinion was that the applicant could return to work.

54The applicant submits that Dr. Soriano failed to address Dr. Bagovich’s diagnosis of fibromyalgia and, therefore, little weight should be given to his opinion. I do not agree that little weight should be given to Dr. Soriano’s report. I do not find that his opinion is very different from Dr. Bagovich’s. Dr. Soriano noted that the applicant had been diagnosed with fibromyalgia, which is a form of chronic pain. He also stated that the applicant’s only impairments from the accident were multifactorial pain. He did not find that pain impaired the applicant’s ability to work. Neither did Dr. Bagovich.

55Dr. Bagovich was asked when the applicant’s condition first prevented her from working and she did not answer this question. Instead, Dr. Bagovich reported that the applicant’s return to work was complicated her by her pregnancy and her psychological problems. I find Dr. Bagovich answered the way she did because she did not form the opinion that the applicant’s fibromyalgia prevented her from working. In fact, Dr. Bagovich recommended exercise and for the applicant to live as normal a life as possible. Her recommendation is in keeping with Dr. Soriano’s, who recommended that the applicant return to work. Dr. Bagovich also recommended physiotherapy for the right trochanteric bursitis and, if it did not work, cortisone shots. She made no determination that the problems with the applicant’s hip were accident related. Nor is there any evidence that would allow me to find the hip problems are related to the accident or were exacerbated by the accident.

56The applicant gave birth to her first child in September 2016. Five days after she gave birth, the applicant suffered a post-eclampsia seizure and cardiac arrest. She testified that this caused her a great deal of anxiety and she has been experiencing headaches from high blood pressure since.

57The applicant testified that her hip presently bothers her and has given out, causing her to fall. By March and April 28, 2017, the applicant’s complaints were of stress, hair loss, depression, anxiety attacks, face pain, tinnitus, right hip pain and click, sciatica, pins and needles, gait off, right foot swelling, pain in both feet, right leg pins and needle from foot to buttock, hot flash at night in bed, significant sweating, limited tolerance to noise and light, vision issues, white flashing light once every three to four months, blurry vision one to two times per week, constant shoulder blade spasms, trapezius, neck, and right arm limited overhead reach. ³⁸

58In October 2017, the applicant had her second child. She testified that she was very sick afterwards from high blood pressure, diabetes and her accident injuries. She could not walk and had diabetic pains, sleep disturbance, heart palpitations and a brain fog.

59The applicant relies on the report of Dr. Grigory Karmy, general practitioner with an interest in chronic pain, who prepared a report as part of a multidisciplinary assessment conducted for the applicant’s LTD insurer. The applicant submits that Dr. Karmy supports Dr. Bagovich’s opinion.³⁹ Dr. Karmy reported in 2018 that the applicant’s psychological complaints were exacerbated by the second accident. He diagnosed her with chronic post-traumatic headaches, a sleep disorder related to the subject accident, but did not identify which accident or if he was referring to the falls that the applicant testified she has had as a result of her pre-existing right hip bursitis. Dr. Karmy did not comment on the applicant’s neuropathic foot pain and sores or her pre-accident bursitis. I have no information on what records he reviewed or whether he simply relied on the applicant’s subjective report. There is no explanation of the cause of the applicant’s post-traumatic headaches or other impairment. Nor would he be concerned about causation as the LTD insurer is only concerned about whether the applicant is disabled from her work, not the cause of her disability.

60The evidence and the testimony of the applicant, her mother, Dr. Lai and Ko shows that the physical impairments preventing the applicant from working are due to her unending menses; her diabetic issues consisting of diarrhoea, nausea, neuropathic foot pain, hip complaints and subsequent falls; her foot pain complaints from her plantar fasciitis; dizziness and headaches from her high blood pressure; and, her hearing problems. The applicant has not adduced any cogent evidence that those impairments were caused by or were exacerbated by the 2015 accident.

b) Psychological Health

61The applicant submits that her psychological health deteriorated as a result of the accident. She claimed that she experienced stress and anxiety immediately after the accident, but there is no record to support this. Dr. Lai, the applicant’s family physician, testified that the first sign or symptom of a psychological issue was a few months after the accident. The first indication of any psychological issue is dated July 6, 2015, when the applicant saw a chiropractor, who was recommending that she see a psychiatrist.⁴⁰ I find, based on the medical records, that the applicant’s psychological health started to deteriorate after she was diagnosed with diabetes and her menses failed to stop.

62The applicant testified that she saw Dr. Girgis for her anxiety and that Dr. Girgis prescribed Lorazepam for her. Dr. Girgis is listed as a family physician.⁴¹ The applicant testified that she saw Dr. Girgis two to three times per week initially up to 2017. The OHIP summary, which goes to April 3, 2016, only records that Dr. Girgis saw the applicant on June 15, November 2 and December 11, 2015 and not two to three times per week.⁴² Dr. Girgis’ records were not produced, only a referral letter that she wrote to a psychiatrist, Dr. Muhammed, in December 2015, which states the applicant has a history of depression.⁴³ The OHIP summary does not mention that Dr. Girgis treated the applicant for any psychological issues until the December 15, 2015 entry. I do not find that Dr. Girgis’ referral to a psychiatrist six months after the accident corroborates the applicant’s testimony that she was suffering from psychological complaints prior to receiving her diagnosis of diabetes.

63Dr. Pilowsky is a psychologist whose assessed the applicant in October 2015 at the applicant’s request. She reported that the applicant’s passive suicidal thoughts were caused by the applicant’s health issues that developed after the accident.⁴⁴

64After the second accident, Dr. Lai referred the applicant for counselling at the recommendation of her obstetrician, Dr. Fried, because the applicant was experiencing stress due to money issues.⁴⁵

65Dr. Harris testified that the accident was a major factor in the applicant’s psychological impairments, but other major factors were the applicant’s chronic pain and all the health problems and other events that took place after the accident. I accept that part of Dr. Harris’ opinion that the applicant’s other health issues and post-accident events are major factors in the applicant’s present psychological impairments. It is supported by the applicant’s testimony and her evidence. That part of Dr. Harris’ opinion is on-side with Dr. Pilowsky and Dr. Syed, who assessed the applicant twice and testified at the hearing.

66Dr. Syed’s opinion was that the applicant could be suffering from some psychological distress. There was evidence to suggest that the applicant had maladaptive beliefs about her level of disability, resulting in psychological distress. However, based on the psychometric testing, the applicant’s subjective reports were not reliable. Her scores were indicative of feigning psychological distress. Accordingly, Dr. Syed could not substantiate that the applicant’s subjective report of a psychological impairment related to the accident.⁴⁶The applicant submits that I should give little weight to Dr. Syed’s opinion and I should draw an adverse inference because she did not produce the applicant’s results from the Million Clinical Multi Axial Inventory-III (“MCMI-III”) psychometric test. Dr. Syed testified that she did provide the applicant’s raw data from the MCMI-III to Dr. Harris. I believe Dr. Syed and accept her explanation for why she did not provide the results. She did not provide the results because they are determined through a computer program that is subject to a proprietary licence for which Dr. Syed must pay a fee. There was nothing preventing Dr. Harris from paying the requisite fee and running the applicant’s raw data that she received from Dr. Syed through the same computer program to obtain the results.

67The applicant submits that Dr. Syed’s opinion that the applicant’s test results that are consistent with her feigning some of her answers to present herself in a disabled light should be given no weight. I did find it somewhat concerning that Dr. Syed did not bring the results of the MMCI-III with her to the hearing. However, Dr. Syed’s opinion is on all fours with my finding that the applicant exaggerates her complaints and is a poor historian. I would have reached the same conclusion on the reliability of the applicant’s subjective reports in the absence of Dr. Syed’s opinion.

68I accept Dr. Syed’s evidence that her opinion was based not just on the test scores, but also on the information the applicant provides during the assessment, her observations of the applicant, and a review of the medical records and reports. I give more weight to Dr. Syed’s opinion than the other psychologists because she had all the applicant’s medical records and, unlike Dr. Harris, she considered the cause of the applicant’s psychological complaints and the essential tasks of the applicant’s pre-accident employment.

69The applicant relies on Dr. Harris’ OCF-3 disability certificate dated March 2, 2019, in which she stated that the applicant has a substantial inability to engage in the essential tasks of her pre-accident occupation as a result of the accident. I give little weight to the OCF-3 because Dr. Harris testified that she did not ask what the applicant’s essential job tasks were or if modified work was available for her because that was not part of her job.

70I give little weight to Dr. Harris’ opinion that the accident is more than 50% responsible for the applicant’s psychological impairments. Dr. Harris’ opinion is based on the applicant being depressed and having anxiety and panic right after the accident. However, her belief on the timing of the applicant’s psychological complaints is based on the applicant’s subjective report, which is not reliable, and is not supported by the medical records. Further, Dr. Harris testified that she did not conduct a comprehensive assessment of the applicant and she did not review all of the medical records because she was not retained by the applicant’s LTD insurer to comment on the role of the accident in the applicant’s psychological impairments. She did not know that the applicant had travelled to Jamaica twice on her own. She only knew of one occasion. She did not make any effort to find out about the applicant’s second accident and had no knowledge that the applicant went to the hospital by ambulance from the second accident. Nor did she perform any validity testing on the applicant. Because of these factors, together with the numerous mistakes that Dr. Harris admitted to in her report, I give little weight to her opinion that the accident is more than 50% responsible for the applicant’s psychological impairments.

71The applicant submits that her diabetes was caused by the anxiety and stress she underwent as a result of the accident. However, it was not until after the applicant was told she was diagnosed with diabetes that she started complaining of anxiety and stress. Dr. Pilowsky’s opinion was that the accident stress caused the applicant’s other medical issues. I do not give any weight to this opinion because I do not know what she means by medical issues. If she is referring to physical conditions, Dr. Pilowsky is not qualified to provide opinions on physical conditions or diagnosis. Dr. Pilowsky did not have the applicant’s clinical notes and records when she wrote her report. Nor was she made available for cross-examination on her report.

72This is not a case where the applicant was fragile to begin with and the accident was the last straw. Her psychological problems did not start until after her physical pain complaints from the 2015 accident started resolving and after she was diagnosed with diabetes. The applicant testified that she has experienced stress and anxiety because of her subsequent health issues, her change of lifestyle and legal issues with her ex-fiancé. She had to get a restraining order against her ex-fiancé after he tried to break down the door of her condominium apartment in January 2018. There was no evidence to corroborate that any of these problems were caused by or exacerbated by the accident.

73Any connection between the applicant’s accident impairments and the physical and psychological complaints that have prevented the applicant from working since March 2016 is minimal to non-existent. I find her non-accident related health issues, in addition to her complications from pregnancy, her less than perfect review from work in 2014, her legal issues with her ex-fiancé and the responsibilities of having to raise two children when, according to her testimony she does not know anything about being a housewife or mother (including how to cook ⁴⁷) and CAS’s involvement, all contribute to her anxiety and depression. If the accident has played any role in her psychological problems, it is minimal compared to the plethora of other issues the applicant has had to cope with. For these reasons, I find that the applicant has failed to prove on a balance of probabilities that her inability to engage in the essential tasks of her pre-accident occupation was as a result of any impairment she sustained in the accident.

4. Complete Inability to Engage in Any Employment

74The test for IRBs changes after 104 weeks of receiving IRBs. The applicant is required to prove that she has a complete inability to engage in any occupation for which she is reasonably suited as a result of the accident. I have already determined that she failed to demonstrate that her inability to work at her pre-accident occupation was caused by her accident related injuries from the first accident. Because I have determined that the applicant was no longer entitled to IRBs after March 16, 2016, it follows that she does not meet the post-104 week test for IRBs. For these reasons, the applicant’s claim for IRBs is dismissed.

B. Medical Benefits

75The respondent is liable for paying for all reasonable and necessary expenses incurred by the applicant for psychological and chiropractic treatment as a result of the accident.⁴⁸ This means the applicant must show on a balance of probabilities that the medical benefits she is seeking are reasonable and necessary as a result of her accident related injuries.

1. Psychological Treatment

76In her September 23, 2015 treatment plan, Dr. Pilowsky recommended the applicant undergo 12 sessions of psychotherapy over 12 weeks at a cost of $4,202.07.⁴⁹ The applicant was assessed by Dr. Syed who determined that the treatment plan was not reasonable or necessary as a result of the accident. Dr. Syed’s opinion was that the applicant’s responses to psychometric measures were atypical. Her scores on the validity measures were indicative of feigning psychological impairment. Therefore, Dr. Syed found no objective evidence to support the applicant’s psychological complaints.⁵⁰

77Dr. Pilowsky noted that the applicant’s other health issues were a secondary cause of the applicant’s psychological complaints. I give more weight to Dr. Syed’s opinion than Dr. Pilowsky because Dr. Pilowsky did not give the applicant any tests that contain validity measures, but accepted her subjective complaints and history at face value. As I have found that the applicant exaggerates, is a poor historian and that the accident is not the cause of her psychological complaints, I find that any psychological counselling recommended by Dr. Pilowsky was not reasonably necessary as a result of the accident.

2. Chiropractic Treatment

78Dr. Karen Johnson, chiropractor, recommended in her treatment plan dated November 26, 2015,that the applicant receive 20 sessions of multidisciplinary rehabilitation and 10 active therapy sessions from her for a total of $3,015.29.⁵¹ Dr. Johnson stated that the applicant’s injuries were predominantly minor injuries, but that she could not be treated within the Minor Injury Guideline (the “MIG”) because of her diagnosis of fibromyalgia, Type 2 Diabetes, severe anxiety, heart palpitations, iron deficiency and heavy uterine bleeding resulting in the D&C in November 2015. The goal of the treatment was pain reduction, increase strength and increase range of motion.

79I find that pain relief is a reasonable objective of treatment, especially if it means that an insured may cut down on pain medication. I find that the disputed treatment was reasonable and necessary for treating the applicant’s pain complaints arising from the accident and getting her into an active exercise regime.

80The applicant told Dr. Bagovich on November 17, 2015, that chiropractic treatment and massage gave her some relief from her back pain. The chiropractic records do not corroborate the applicant’s report to Dr. Bagovich as they are silent on whether there was any improvement or any pain relief. They only record that by late October 2015, the applicant’s right hip pain was getting worse.

81Dr. Bagovich recommended graded exercise for the fibromyalgia. Based on the applicant’s testimony and what she told Dr. Soriano, it does not appear that the applicant was receiving much active therapy prior to November 2015. She received some exercise but, predominantly, she received passive therapy. The treatment plan in issue, however, included an active therapy component, which I find is in keeping with Dr. Bagovich’s recommendation of graded exercise.

82Dr. Soriano prepared an IE report dated January 27, 2016 to assess Dr. Johnson’s treatment plan. His opinion was that from an orthopaedic perspective, the proposed treatment was not reasonable and necessary as a result of the applicant’s accident impairments. Dr. Soriano’s opinion was that the cost of the treatment was reasonable. However, he stated that a further course of physiotherapy was not likely to influence the applicant’s outcome. Despite having received an extensive course of physiotherapy over the previous few months, the applicant’s multifocal pain had not materially improved. The applicant advised him that she received temporary relief from the treatment. Dr. Soriano did not report on how long the pain relief lasted or what was meant by temporary. Nor did he explain what he meant by material improvement to the applicant’s pain. Without some further description of what Dr. Soriano meant, I do not find any reason to accept his opinion over that of Dr. Bagovich and Dr. Johnson. Further, I note that Dr. Soriano’s recommendations that the applicant resume all of her pre-accident activities is not dissimilar to Dr. Bagovich’s recommendation of resuming as normal a life as possible. For these reasons, I find that the treatment plan was both reasonable and necessary as a result of the applicant’s accident impairments.

C. O. Reg. 664 Award

83If I find that the respondent unreasonably withheld or delayed payments, in addition to awarding the benefits and interest to which the applicant is entitled, I may also award a lump sum of up to 50 per cent of the amount to which the applicant is entitled together with interest.

84The applicant submits that the respondent unreasonably delayed payment of her benefits because it failed to retain a person qualified to address Dr. Bagovich’s diagnosis of fibromyalgia, failed to approve psychological counselling, and failed to approve of the chiropractic treatment.

85I find that there was no reason to question Dr. Syed’s opinion and that it was not unreasonable for the respondent to rely on her opinion to deny entitlement to psychological treatment. Further, for the reasons I already gave, it was not unreasonable for the respondent to prefer the opinion of Dr. Syed over that of Dr. Pilowsky. Dr. Syed conducted a more thorough assessment than the other psychologists.

86The applicant submits that it was improper for the respondent to send the applicant for an assessment with an orthopaedic specialist, Dr. Soriano, to assess whether or not the accident caused the applicant’s fibromyalgia, especially since Dr. Soriano did not address the cause of the fibromyalgia. The applicant relies on a decision from the Financial Services Commission of Ontario, Fimiani v. Liberty Mutual Insurance Company.⁵² In that case, the insurer relied on a report by a Designated Assessment Centre (“DAC”) that was prepared by a chiropractor who did not have the expertise to assess the claimant’s diagnosis of temporomandibular joint disorder (“TMJ”). Nor did the DAC arrange to have the TML assessed when it was an obvious issue. I am not bound by the FSCO decision. I also find that the decision is distinguishable because it dealt with the DAC system, which was eradicated many years ago under a previous accident benefit regulation.

87While it may have been prudent for the respondent to have an IE conducted that addresses the fibromyalgia diagnosis, I do not find it was unreasonable to not do so. Under the present Schedule, the onus of proof of entitlement remains with the applicant. I am not persuaded that, in the absence of any opinion that fibromyalgia prevents the applicant from engaging in the essential tasks of her occupation or reasons for why none of the applicant’s other health problems are the cause of the fibromyalgia, that the respondent ought to have requested an IE with a specialist other than an orthopaedic specialist. Nor do I find it unreasonable for the applicant to have relied on Dr. Soriano’s opinion that further chiropractic treatment was not necessary. I found it difficult to make a determination of entitlement to the chiropractic treatment because there was nothing in the IE reports to indicate that it was unreasonable for the respondent to rely on them. Accordingly, I do not find that the respondent unreasonably withheld any benefits. The applicant’s claim for a special award is dismissed.

D. Interest

88Interest is payable in accordance with the provisions of the Schedule. If the parties are unable to resolve the issue of interest on Dr. Johnson’s treatment within 30 days of the release of my decision, I remain seized of the issue and will accept further submissions on the interest.

E. Costs

89The respondent seeks its costs of the hearing. If the applicant’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the applicant has acted in bad faith, the respondent may be entitled to its costs. Neither party referred me to any case law.

90I find that the hearing took longer than it should have because the applicant served and filed a new document brief after serving and filing her original brief without seeking consent from the respondent and an order from the Tribunal. However, the respondent’s electronic version of its document brief also created delays as it was in a confusing format as it referred to different versions of volumes one and two and did not list a description of the documents, but only referred to the tab numbers.

91Although the applicant presented a number of procedural issues that took up time, the respondent also unsuccessfully objected to evidence going in, which also took time. I am unable to find that the procedural issues were frivolous, vexatious or that the applicant acted in bad faith. For these reasons, the respondent’s claim for costs is dismissed.

ORDER

92The applicant’s claim for IRBs is dismissed;

93The applicant’s claim for psychological treatment is dismissed;

94The applicant is entitled to the chiropractic services of $3,015.29 services recommended by Dr. Karen Johnson in the treatment plan dated November 26, 2015;

95The applicant’s claim for an award under Ont. Reg. 664 is dismissed;

96The respondent’s claim for costs is dismissed;

97Interest is payable in accordance with the provisions of the Schedule. If the parties are unable to resolve the issue of interest on Dr. Johnson’s chiropractic treatment within 30 days of the release of my decision, they may serve and file further submissions and evidence to me in writing within 45 days of the release of my decision and contact the Tribunal to schedule a resumption of the hearing by teleconference.

Footnotes

1. 1Moore v. Getahun, 2015 ONCA 55 at para 52.
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “LAT Rules”).
3. 3“Them/they” are Ko’s pronouns.
4. 4Adenomyosis is a condition in which the inner lining of the uterus (the endometrium) breaks through the muscle wall of the uterus (the myometrium). Adenomyosis can cause menstrual cramps, lower abdominal pressure, and bloating before menstrual periods and can result in heavy periods.
5. 5Exhibit 8, Dr. Lai referral letter of October 19, 2015.
6. 6Exhibit 3, clinical notes and records of Dr. Paul Lai, family physician, enclosing a report of Dr. Ayoade of November 17, 2015.
7. 7Exhibit 3, Dr. Lai’s clinical notes and records from June 8, 2010 to October 4, 2017.
8. 8Exhibit 3, Dr. Lai’s clinical note of July 9, 2014.
9. 9Exhibit 3, Dr. Lai’s clinical note of September 23, 2014.
10. 10Exhibit 3, Dr. Lai’s clinical note of June 5, 2015.
11. 11Exhibit 3, Dr. Lai’s clinical notes.
12. 12Exhibit 3, Dr. Lai’s clinical note of June 22, 2015, Exhibit 16, IE report of Dr. Todd Walters, general practitioner, dated August 31, 2015.
13. 13Exhibit 3, Dr. Lai’s records; Dr. Ayoab’s operative report of November 22, 2015.
14. 14Exhibit 12, OHIP summary.
15. 15Exhibit 6, Airport Rehab Centre clinical notes and records from July 6, 2015 to December 10, 2015.
16. 16Exhibit 24, IE report of Anna Matrosov, occupational therapist.
17. 17Exhibit 3, Dr. Lai’s clinical note of June 22, 2015.
18. 18Exhibit 3, report of Dr. Hanain Khandwala, endocrinologist, of September 8, 2015.
19. 1917-006504 v Certas Home and Auto Insurance Company, 2018 CanLII 97845 (ON LAT).
20. 2016-000284 v RBC Insurance Company, 2017 CanLII 9816 (ON LAT) at para 9.
21. 21Exhibit 26, employment file, CDN Retail Operations Job Description
22. 22Exhibit 26, employment file
23. 23Exhibit 26, Money Mart employment file up to October 27, 2016, July 30, 2014 Performance Plan & Assessment shows an unacceptable rating for her communication and management style of her employees. Three new hires had resigned and her district manager had been approached by staff due to the applicant’s demanding communication style.
24. 2416-000372 v Unica Insurance Inc., 2017 CanLII 35319 (ON LAT) [16-000372 v Unica].
25. 25Sabadash v. State Farm et al., 2019 ONSC 1121 (Ont. Div. Ct.) at para.31.
26. 2617-004722 v Wawanesa Mutual Insurance Company, 2018 CanLII 140992 (ON LAT) and 17-006363 v. The Guarantee Company of North America, 2018 CanLII 132568 (ON LAT).
27. 27Exhibit 2, William Osler Health System Hospital records.
28. 28Exhibit 3, Dr. Lai’s clinical notes of June 11 and 22, 2015.
29. 29Exhibit 7, Dr. Pilowsky’s report of October 15, 2015.
30. 30Exhibit 8, consultation report of Dr. Bagovich of November 22, 2015.
31. 31Exhibit 3, December 22, 2015 note of Dr. Ba.
32. 32Exhibit 3, Dr. Bagovich’s report of March 14, 2016.
33. 33Exhibit 17, Great West Life File, report of Nat Ko dated May 31, 2018.
34. 34Exhibit 3, Dr. Lai’s clinical note of March 14, 2016.
35. 35Exhibit 17, Great West Life File, report of Heather Norman, occupational therapist, dated April 28, 2017. The applicant also reported to Heather Norman that she was intending to return to work on modified duties when the second March 2016 accident occurred.
36. 36Exhibit 8, Dr. Bagovich’s clinical notes and records.
37. 37Exhibit 10, IE report of Dr. Soriano dated March 1, 2016.
38. 38Exhibit.16, Great West Life File (“GWL”) , report of Heather Norman, occupational therapist dated April 28, 2017, and interview form of Janet Styles of GWL dated March 2, 2017.
39. 39Exhibit 17, Great West Life file, report of Dr. Karmy of May 31, 2018.
40. 40Exhibit 6, Airport Rehab clinical notes and records, treatment plan (OCF-18) of Dr. Dianna Bakalovski, chiropractor, of July 6, 2015.
41. 41Exhibit 12, OHIP summary.
42. 42Exhibit 12, OHIP summary.
43. 43Exhibit 13, Dr. Girgis’ letter of December 11, 2015.
44. 44Exhibit 7, Dr. Pilowsky’s report of October 15, 2015, page 8.
45. 45Exhibit 3, Dr. Lai’s referral and report of Dr. Eve Fried, obstetrician, of May 27, 2016.
46. 46Exhibit 24, Makos Health Associates IE reports; reports of Dr. Syed dated September 18, 2015 and March 4, 2016.
47. 47The applicant’s mother testified that she prepared the applicant’s meals and brought them to her at work prior to the accident.
48. 48Section 14 and s.15(1)(a) and (b) of the Schedule
49. 49Exhibit 29, OCF-18 treatment plan of Dr. Pilowsky dated September 23, 2015
50. 50Exhibit 16, Dr. Syed’s report of September 18, 2015
51. 51Exhibit 30, OCF-18 treatment plan of Dr. Karen Johnson dated November 26, 2015
52. 52Fimiani v. Liberty Mutual Insurance Co. (FSCO A97-001518, A97-001518) 2000 CarswellOnt 5926 (“Fimiani v. Liberty Mutual”).