P.P. v. Wawanesa Mutual Insurance Company, 2020 CanLII 94798

Citation: P.P. vs. Wawanesa Mutual Insurance Company, 2020 ONLAT 18-000957/AABS

Released Date: November 3, 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:

P.P.

Appellant(s)

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: D. Gregory Flude

Appearances:

For the Appellant: [P.P.], Applicant Darcie Sherman, Counsel

For the Respondent: Darrell March, Counsel

Interpreter: George Kefalas, Greek Interpreter

Court Reporter: Bruce Porter

Heard: In-Person: Hearing: November 26 – 30, 2018, January 10 & 11, March 18, June 3 – 7, and 10 – 14, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, [P.P.], was injured in an automobile accident on December 3, 2014 (the “accident”). He had been active throughout his life, both at work as a carpenter/contractor and in his social life. He played soccer, met with friends for coffee, walked and enjoyed his family. He stated that he now feels that the motor vehicle accident changed all that. He testified that he no longer works; plays soccer; takes joy from his family; or meets with friends for coffee. He feels he has become socially withdrawn and cannot help his wife around the house as he used to. This makes him feel worthless.

2He asks the Tribunal to find that he has been catastrophically impaired as a result of the accident. If he is found to be catastrophically impaired, his coverage limit will increase to $1,000,000 for medical and rehabilitation benefits and $1,000.000 for attendant care benefits. He will also be entitled to a housekeeping and home maintenance benefit. Mr. [P.] also seeks an income replacement benefit and payment of two medical treatment plans.

3The respondent, Wawanesa Mutual Insurance Company (“Wawanesa”) points to the fact that Mr. [P.] had sustained serious injuries in a workplace accident approximately four years before the motor vehicle accident and submits that the impairments he currently complains of flow from that workplace accident. It also argues that Mr. [P.] did not sustain a catastrophic impairment as a result of the subject accident.

ISSUES

4The following issues are in dispute:

i. Did Mr. [P.] sustain catastrophic impairment under s. 3(2)(e) of the Schedule, that is, an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”), results in 55% or more impairment of the whole person?

ii. Is Mr. [P.] entitled to receive a weekly income replacement in the amount of $282.72 for the period of December 11 – 31, 2014, as submitted on February 20, 2015 and denied on February 19, 2016?

iii. Is Mr. [P.] entitled to receive a weekly income replacement in the amount of $173.25 for the period of January 1, 2015 through May 7, 2016, as submitted February 20, 2015 and denied on February 19, 2016?

iv. Is Mr. [P.] entitled to receive a medical benefit for physiotherapy services in the amount of $3,998.00 as submitted by Sahib Physiotherapy and denied on June 2, 2017?

v. Is Mr. [P.] entitled to receive a medical benefit for physiotherapy services in the amount of $7,348.00 as recommended by Erindale Physiotherapy and denied on June 2, 2017?

vi. Is Mr. [P.] entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week, for the period from December 3, 2014 to date and ongoing, denied on December 3, 2014?

vii. Is Mr. [P.] entitled to payments for invoices submitted for the completion of 2 OCF-3 forms and for parking expenses in the total amount of $414.50?

RESULT

5I find that Mr. [P.] has failed to satisfy the onus of proving that he sustained a catastrophic impairment as a result of the accident. It flows from this finding that Mr. [P.] is not entitled to a housekeeping and home maintenance benefit. I also find that Mr. [P.] does not meet the test for an income replacement benefit as he was not self-employed at the time of the accident. The medical evidence does not establish that the physiotherapy treatment plans are reasonable and necessary.

ANALYSIS

6As will be seen from my review of the medical records, Mr. [P.] suffered a workplace accident in 2010 that had a major impact on his ability to do anything other than light carpentry and light work. Following the accident on December 3, 2014, Mr. [P.] also began to complain about right and left shoulder pain and claims the accident aggravated his right shoulder injury. He was later found to have a rotator cuff tear in his left shoulder. He asserts that this tear was caused by the accident. Wawanesa asserts that it is the result of natural degenerative processes noted before the accident and the impact on his left shoulder of the injury to his right shoulder. Mr. [P.] bears the onus of establishing entitlement to the benefits claimed on a balance of probabilities. Throughout my consideration of the evidence, causation is a major factor that I must keep in mind.

Medical Records

7The parties produced thousands of pages of medical records, often duplicated, both internally in each party’s brief and separately in each brief. It would have been preferable, and a much more efficient use of the Tribunal’s time and resources, had the parties agreed to a joint document brief containing only those specific documents they intended to rely on at the hearing. Failing that, each party should have edited their own documents to ensure that only the documents on which they intended to rely were included in their hearing briefs. The case conference order required the parties to produce only those documents they intended to rely on, and they did not do so.

Relevant Pre-Accident Medical History

8To fully understand the issues in dispute, it is necessary to review Mr. [P.]’s relevant pre-accident medical history. Wawanesa submits that Mr. [P.]’s current complaints flow from a 2010 workplace accident that injured his right shoulder combined with degenerative changes. Mr. [P.] does not downplay the right shoulder injury but submits that the accident aggravated his right shoulder injury and injured his left shoulder, rendering him incapable of work and leaving him in need of further treatment.

9Mr. [P.]’s pre-accident medical history includes hypertension, heart disease and hyperlipidemia. He had a motor vehicle accident in 1999 and complained of neck and back pain. In 2010, he severely injured his right shoulder in a workplace accident. He was diagnosed with a full thickness tear of the supraspinatus tendon with retraction and a partial tear of the infraspinatus tendon. Diagnostic imaging also showed degenerative changes such as tendinopathy in the bicep tendon and arthritic changes in the acromioclavicular joint.

10The right shoulder injury required surgery in 2011. In her follow-up dated July 15, 2012, orthopaedic surgeon, Dr. Jacqueline Smith Auguste, notes that the long-term effects of the right shoulder injury will be that Mr. [P.] will not be able to work again at anything other than light carpentry. Given that he was a self-employed contractor, Dr. Auguste felt he was unable to carry out his employment duties. Further orthopaedic surgeon reports, dated both before and after the accident, indicate that Mr. [P.]’s condition is inoperable.

11In September 2014 Mr. [P.] suffered a myocardial infarction, the stoppage of blood flow to a part of the heart, while playing soccer. The colloquial term for this condition is a “heart attack,” the term I will use for it in this decision. He stopped working after the heart attack and there is a dispute over whether he was cleared to return to work in and around the time of the accident.

12Mr. [P.] was not free of shoulder or back symptoms before the accident. On August 15, 2014, approximately 4 months pre-accident, Dr. Behiya reports that Mr. [P.] injured his right shoulder while playing soccer 3½ days earlier. The pain was such that Dr. Behiya sent him for an X-ray. In October 2014, he complained of low back pain.

Post-Accident Medical History

13The major theme running through the post-accident medical reports is continued difficulty with the right shoulder. Mr. [P.]’s position is that his right shoulder injury was aggravated by the accident and that, prior to the accident, it had been asymptomatic, but the accident brought about pain requiring further treatment. This position is encapsulated in a report by Dr. Robin Richards, an orthopaedic surgeon, wherein Dr. Richards reviewed pre-accident imaging studies of Mr. [P.]’s right shoulder but concluded that prior to the accident, “Mr. [P.] did not have the severe symptomatology, functional limitations and psychological problems that he currently has. Accordingly, Mr. [P.]’s current musculoskeletal symptomatology is accident related.”

14In 2015 through 2017, Mr. [P.] saw an orthopaedic surgeon, Dr. Behzad Taromi. Dr. Taromi‘s reports highlight the focus on right shoulder problems. While he ordered an MRI of the left shoulder that found a small tear of the supraspinatus tendon, the tenor of Dr. Taromi’s reports from 2015 to 2017 is that the right shoulder is the major problem and the left shoulder is generally dealt with as an afterthought. Dr. Taromi notes in his reports that the left shoulder has full range of motion and normal strength. In his June 7, 2017 report he states Mr. [P.]’s “…left shoulder symptoms are moderate, intermittent, sharp, deep aggravates with overhead and reparative activities and reaching back with no peripheral neurological symptoms.”

15On June 17, 2017, Dr. Taromi discussed plans for dealing with the left shoulder. He recommends “arthroscopic rotator cuff repair and decompression.” The recovery time from such surgery was estimated at 6 months. Dr. Taromi also covered the risks associated with surgery. Right shoulder surgery would require a one-year recovery period.

16There are numerous other medical reports from both experts and clinical notes and records from treating physicians. There is often imprecise language such that it is not entirely clear which shoulder is being discussed. They also appear to accept Mr. [P.]’s self-reporting of the origins and severity of the impact on his left shoulder uncritically and occasionally cite from other reports that were equally uncritical.

17In late 2015, Mr. [P.] fell on his left side in the shower. He went to the emergency room complaining of pain in his ribcage. The respondent points to this fall as a possible source of further injury to his left shoulder. There is no complaint of shoulder pain in the contemporaneous records and as far as I can see it is not considered by any future treatment providers as an explanation for his left shoulder injuries.

18In August 2016, Mr. [P.] was referred to a psychiatrist, Dr. Chris Soulios, by his family physician, Dr. Alam. Dr. Soulios diagnosed the applicant with Major Depressive Disorder and recommended a pharmacological approach to treatment. Mr. [P.] continued to see Dr. Soulios for approximately 18 months, every month or six weeks. He reported ongoing sadness but denied suicidal ideation. In addition to medication, Dr. Soulios counselled Mr. [P.] at each session but there was no formal psychotherapy treatment.

Other Assessments

19Mr. [P.] has had numerous assessments, both by healthcare practitioners he retained and by those retained by Wawanesa. Particularly with respect to the physical injuries, Wawanesa’s assessors find that Mr. [P.]’s rotator cuff injuries and impairments on both the left and right side are not accident-related. As may be seen above, Dr. Richards’ opinion is that the appearance of symptomatology and attendant impairment post-accident triggers Wawanesa’s liability.

20Mr. [P.] was examined on September 16, 2016 by orthopaedic surgeon, Dr. Bruce Paitich, on behalf of Wawanesa to determine his entitlement to a non-earner benefit. Dr. Paitich makes a number of notable findings in his report. Overall, I find the report is very balanced. It does not find that Mr. [P.] does not suffer from impairments as a result of the accident. It identifies non-organic dysfunctionality, that is, dysfunctionality that appears unrelated to any anatomical or physiological cause. The problems may be manifestations of emotional or behavioural problems.

21The focus of Dr. Paitich’s report is on the physical injuries. With respect to the right shoulder rotator cuff pathology, he cites findings by Dr. Taromi and imaging studies to suggest that the injuries were long lasting. There were atrophy and fatty intrusions. Dr. Paitich concludes that the right shoulder issues are not accident-related.

22In Dr. Paitich’s report, the left shoulder presented a slightly more complex picture due, in large part, to the absence of any pre-accident imaging studies. Dr. Taromi noted a small partial-to-full-thickness tear of the supraspinatus tendon in January 2016, which had advanced to a full-thickness tear according to subsequent imaging in May 2016, with partial tears of the infraspinatus and scapularis tendons. Of note, both Dr. Paitich and Dr. Taromi report that Mr. [P.] was asymptomatic with respect to his left shoulder.

23Dr. Paitich concludes that none of the rotator cuff injuries are accident-related. He finds that Mr. [P.] suffered soft-tissue injuries in the accident. The lingering non-organic effects of which Mr. [P.] complains have their cause in emotional or behavioural issues. Dr. Paitich points out that in excess of 50% of the male population suffers rotator cuff tears as a normal effect of age-related degeneration and that it is usually painless and causes little or no loss of function.

24Shortly after the release of his report, Dr. Paitich was asked to review further documents and consider whether they had any impact on his earlier opinion. He concluded that a review of Dr. Taromi’s comments on the condition of Mr. [P.]’s right shoulder confirmed his own opinion. Dr. Taromi stated:

It is difficult to clarify the impact of the accident on his rotator cuff tendon tear, however, based on subjective and objective finding and the MRI finding, it would seem that Mr. [P.’s] right shoulder impairment is longstanding since there is complete fatty infiltration of the supraspinatus and infraspinatus which takes several years.

25Dr. Stephen Halman, an orthopaedic surgeon, was asked to assess Mr. [P.] on behalf of Wawanesa with respect to the two proposed treatment and assessment plans for physiotherapy treatment in issue in this matter. He found that Mr. [P.] had reached maximum medical recovery with respect to injuries sustained in the accident and that the treatment was not reasonable and necessary.

26Dr. Halman’s findings accord with those of Dr. Paitich. Dr. Halman concludes that the accident-related injuries were a sprain of the cervical and lumber spine superimposed on degenerative changes in those areas. He does not find a connection to the right shoulder rotator cuff tears or the developing tears in the left shoulder. With respect to the latter, Dr. Halman cites academic authority for the proposition that there is a high probability of having a left shoulder tear as a result of degeneration in Mr. [P.]’s age group if there is right shoulder damage. Dr. Paitich cited other academic authority coming to the same conclusion.

27Mr. [P.] was assessed by a psychologist, Dr. Tatiana Dumitrascu, in September 2015 and by a psychiatrist, Dr. Uri Wolf, on September 13, 2016. Both practitioners noted that tests suggested symptom amplification. From these findings, they concluded that it was impossible to provide a diagnosis of a psychological condition. Each then make a logical leap that the impossibility of diagnosis means the absence of the condition complained of. I do not find this conclusion compelling. Dr. Wolf subsequently reviewed the notes and diagnosis of Dr. Soulios and changed his opinion to find that Mr. [P.] had Major Depressive Disorder, but not to the extent complained of.

28In May 2018, Mr. [P.] was assessed by Dr. Richards. In his report dated May 30, 2018, Dr. Richards concluded that Mr. [P.]’s symptomatology stems directly from the accident on December 3, 2014 and that he sustained severe musculoskeletal injuries in the accident. He noted the pre-existing right shoulder injury but accepted Mr. [P.]’s self-report that he was “fine” following the 2012 surgery on his right shoulder. He does not comment on the possibility that developing rotator cuff damage in the left shoulder may be degenerative in nature, apparently ascribing it, without discussion, to injuries sustained in the accident. While he noted that the left shoulder had a partial tear in early imaging studies, Dr. Richards did not comment on Dr. Taromi’s findings in 2017 of full function in the left shoulder, or on Dr. Paitich’s similar finding and opinion that Mr. [P.] has much more functionality in the right shoulder than he demonstrated, and he is self-limiting.

29I find the medical reports of Drs. Paitich and Halman more convincing than Dr. Richards’s report. The reports of Drs. Paitich and Halman show greater objectivity than Dr. Richards. They assessed Mr. [P.] and then arrived at their conclusions about his condition. Dr. Paitich considered the mechanism of the accident. He noted that Mr. [P.] reported holding the bottom of the steering wheel and concluded that the types of injury complained of are unlikely to have been sustained in that type of accident. In his evidence on the question of catastrophic impairment, Dr. Sangha, a physiatrist, was of the opinion that holding the steering wheel during a collision may transmit forces directly to the shoulders. While Dr. Sangha may be correct, Dr. Richards does not discuss the mechanism in his report. The fourth paragraph of Dr. Richards’s report states categorically that Mr. [P.]’ “injured both his shoulders, his neck, his upper back and his low back as a result of the above mentioned [sic] impact.” The balance of his report then confirms his possibly erroneous understanding.

30From my review of the medical evidence, I conclude that Mr. [P.] suffered uncomplicated soft tissue injuries in the accident and the source of his current physical condition is continued deterioration of his shoulders as a result of natural degeneration and earlier trauma.

Catastrophic Impairment

31Given the discrete nature of the issue, I will address the question of catastrophic impairment first. Since Mr. [P.]’s entitlement to a housekeeping and home maintenance benefit and the treatment he seeks is dependent on a finding that he is catastrophically impaired, I need not address those issues since I find that he has not demonstrated that he is catastrophically impaired.

Applicable Definition of Catastrophic Impairment

32The 2014 version of the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg 34/10 (the “Schedule”) applicable to this matter sets out the definition of catastrophic impairment in s. 3(2). The definition set out in s. 3(2)(e) relied on by the applicant considers the cumulative effect of a number of lesser impairments on the overall ability of an injured party to function. It adopts the concept of a Whole Person Impairment (“WPI”) and incorporates the “Guides”.

33Applying the methodology set out in the Guides, s. 3(2)(e) defines a person as catastrophically impaired if the cumulative effect of their individual impairments results in a score of 55% WPI or higher. Since the Guides provide for the rounding up or down of a score to the nearest five per cent, an injured person will meet the definition of catastrophic impairment if their WPI is 53% as that number will be rounded up to 55%. Equally, a score of 52% will be rounded down to 50%.

34Mr. [P.]’s assessors, Omega Medical Associates, rated his current WPI at 45% WPI. Omega then considered the possibility that Mr. [P.] will undergo the surgery Dr. Taromi discussed and assigned a number to take that prognosis into account. The result is Omega finds a 55% WPI because of the possibility, or even likelihood, of future surgery.

35One complicating factor in understanding the Guides is that scores from various areas of impairment are not added linearly. For instance, Mr. [P.] was rated at 26% for his physical impairments and 26% for mental health impairments. These two numbers combine to give a WPI of 45%, not 52% as may be expected by simply adding the two scores. When a score for future surgery was added, Mr. [P.] scored 39% in the physical domain plus 26% in the mental health domain. These scores combine to give the 55% WPI on which Mr. [P.] relies.

The Assessment Evidence

36Wawanesa submits that the Omega assessment is flawed. It questions the physical assessment conducted by Dr. Harpreet Sangha, physiatrist, that assigned a score of 3% for the use of medication. It also questions the assignment of a score of 18% for future surgery applied by Dr. Harold Becker in the Omega Summary & Analysis Report. It submits that the Guides do not account for future surgery in assigning scores. Mr. [P.] asserts that it does. From the analysis performed by Omega above, it can clearly be seen that without the score for future surgery, Mr. [P.] does not currently achieve the required 55% WPI.

37I am satisfied that Dr. Sangha has misapplied the 3% rating for medication use. While, superficially at least, deducting 3% would suggest a 52% WPI, the fact that scores are not calculated linearly calls the simple mathematical calculation into question. I am also satisfied that the Guides do not contemplate future treatment. They contemplate a snapshot of a person’s present medical condition. The difficulty with assigning an impairment score to a future treatment is that the operation may or may not be successful. If successful, the score has been assigned in expectation of a condition that did not come about and thus overstates the level of impairment.

38Omega recognizes the speculative nature of assigning a rating for future contingencies in its report. It states as follows: “The current impairment rating for range of motion loss was included in this combined rating as an estimate of loss of range of motion following shoulder arthroplasty” [emphasis added]. No allowance is made for improvement following surgery, so the score assigned is unreliable as it is entirely speculative.

3% for Medication Use

39The Guides provide that an assessor may assign up to 3% WPI for the manner in which medication masks the true underlying condition resulting from an accident or injury. Thus, if a patient on pain killers demonstrates a greater range of motion than if tested without pain killers, then the test does not reflect the true ability of the patient and the score may be adjusted to reflect the masking of symptoms. In his report, Dr. Sangha makes no comment on how the medication Mr. [P.] had taken shortly before the assessment enables him to demonstrate a greater range of motion and artificially inflated his score.

40Dr. Sangha justifies the addition of the 3% rating as follows:

This gentleman who has multiple cardiac risk factors including a previous myocardial infarction is on high dose daily NSAID. As such he is on medication as a result of the MVC that significantly increases his risk of a life threatening cerebrovascular or cardiovascular event.

41In support of his application of the 3% medication score, Dr. Sangha cites chapter 2 of the Guides at page 9.

42The first, and perhaps most obvious issue, with Dr. Sangha’s conclusion is its internal inconsistency. He cites the use of high-dose NSAID (non-steroidal anti-inflammatory drugs) to treat an unrelated condition, heart problems including a myocardial infarction. The applicant’s myocardial infarction predates the motor vehicle accident by several months and there was no evidence drawn to my attention to suggest the accident made the condition worse. Dr. Sangha then assigns the 3% score because the use of the NSAID is “as a result of the MVC.” This finding cannot be supported on the evidence or from Dr. Sangha’s own analysis.

43Dr. Sangha also misapplies the provisions of the Guides. As set out above, up to 3% may be assigned for the masking effects of medication. The cited section comes under the heading “Adjustments for the Effects of Treatment or Lack of Treatment” and states:

In certain instances, the treatment of an illness may result in apparently total remission of the patient's signs and symptoms. Examples include the treatment of hypothyroidism with levothyroxine and the treatment of type I diabetes mellitus with insulin. Yet it is debatable as to whether the patient has regained the previous status of normal good health. In these instances, the physician may choose to increase the impairment estimate by a small percentage (eg, 1 % to 3%), combining that percent with any other impairment percent by means of the Combined Values Chart (p. 322).

44Dr. Sangha appears to interpret the reference to illness above as meaning any illness from which Mr. [P.] may be suffering at the time of the accident. This is indicated in the inconsistency of his comments assigning 3%. In my view, this is a misinterpretation of the purpose of the Guides. The Guides are designed to determine the degree of permanent impairment resulting from an accident. Where there are pre-existing conditions, the Guides contemplate apportionment of that part of the condition not related to the accident. In chapter 2 at page 10, after setting out the general principle of apportionment, the Guides state by way of example:

For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any preexisting [sic] spine problem would be estimated. The estimate for the preexisting impairment would be subtracted from that for the present impairment to account for the effects of the former.

45Applying apportionment to the assignment of 3% WPI for NSAID use, it is clear that Dr. Sangha should not have considered its impact. It was fine for him to assign 3% to reflect Mr. [P.]’s current condition but he should then have deducted that 3% because it was the result of a pre-existing condition.

Future Surgery

46The Guides are not designed to assess future treatment or rehabilitation services. In fact, from the first chapter, the Guides apply the concept of maximum medical improvement where future treatment must, of necessity, be palliative. This accords with the provisions of the Schedule. A determination that an injured party has suffered a catastrophic impairment does not entitle the injured party to any specific treatment. It makes available a larger pool of money to fund future treatment, but the injured party must still demonstrate that any specific treatment is reasonable and necessary.

47One major difference between the Guides and the Schedule is that the Guides suggest deferral of an assessment of a WPI until the medical condition has stabilized. There is no time limit on this deferment so an injured party who does not achieve medical stability for several years may be denied access to enhanced and necessary benefits for an unreasonable period. The Schedule also addresses medical stability but mandates a 2-year time limit. After two years, an injured party may apply for a CAT designation using a WPI score as of right. Before two years, an injured party must have a physician certify that the condition will remain CAT and will not improve (see s. 3(5)).

48The fact that the Schedule provides that a catastrophic assessment may be conducted before full medical stability might suggest that there is room for a speculative dimension to take into account future contingencies. The Schedule does not include such a dimension. The Schedule incorporates the Guides and those are the standards that apply to the assessment of catastrophic impairment.

49The wording of the Schedule does not contemplate a contingency for future deterioration. It speaks in terms of the present condition of the applicant. Section 3(2) uses the present tense, as follows:

For the purposes of this Regulation, a catastrophic impairment caused by an accident is,

(e) …an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person. [emphasis added]

50Clearly the intention of the Legislature was not to speculate on the impact of future treatment. The language is clear that the Schedule contemplates a snapshot of the applicant’s current condition. Had the Legislature intended otherwise it could have included broader wording after “is” such as “or may reasonably be expected to become…”

51Since it is not disputed that Mr. [P.]’s current condition does meet the 55% WPI threshold without an allowance for future surgery, I find on the evidence before me that Mr. [P.] has failed to establish that he suffers from a catastrophic impairment. I make no allowance for future surgery.

Income Replacement Benefit

Entitlement

52I find that Mr. [P.] is not entitled to an income replacement benefit.

53Mr. [P.] has been self-employed through most of his working life and testified that he was so in the years before the accident until his heart attack. The Schedule entitles self-employed persons to an income replacement benefit set out in s. 5(1)2. as follows:

2. The insured person,

i. was a self-employed person at the time of the accident, and

ii. suffers, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his or her self-employment.

54Wawanesa submits that Mr. [P.] does not meet the above definition because he was not, in fact, self-employed at the time of the accident because he was recovering from a recent heart attack. Mr. [P.] submits that he was self-employed and had just returned to work following a medical leave of absence. He argues that a day or two before the accident he had been approved by his cardiologist to return to work and had been in the process of contacting his old clients to advise them that he was available for work.

55Since Mr. [P.]’s 2010 shoulder injury and recovery, he had been capable of only light duties. This is captured in the clinical note of the orthopaedic surgeon Dr. Auguste, dated July 8, 2012 where she advises that Mr. [P.] will be reduced to light duties only on an ongoing basis. Mr. [P.] testified that he would hire help for heavier tasks. Dr. Auguste was of the view that he will be unable to perform the essential tasks of his employment as a self-employed contractor.

56The evidence that Mr. [P.]’s cardiologist, Dr. Kannampuzha, had authorized his return to work prior to the accident is scant. In a note dated April 9, 2015, Dr. Kannampuzha states that he had cleared Mr. [P.] to return to work on December 1, 2014, 2 days before the accident. No evidence was drawn to my attention to indicate that Mr. [P.] had a consultation with Dr. Kannampuzha on December 1, 2014. The note itself is dated 5 months after December 1. These factors call Dr. Kannampuzha’s recollection of when Mr. [P.] was cleared to return to work into question.

57By contrast, there is evidence that Mr. [P.] discussed a return to work with his treating cardiologist 6 weeks after the accident. Dr. Wang, who treated Mr. [P.] at the Cardiac Clinic, states in a note dated January 12, 2015, “the above patient is stable. He may return to work as of today.” I prefer the note of Dr. Wang over the recollection of Dr. Kannampuzha. It is contemporaneous and immediate. If, as alleged, Mr. [P.] had been cleared to return to work on December 1, 2014, there was no need for the January 15, 2015 discussion. Accordingly, I find that Mr. [P.] was not cleared to return to work until January 12, 2015.

58While it may be argued that the finding of medical clearance to return to work 6 weeks after the accident disposes of the issue of entitlement to an income replacement benefit, it is the nature of self-employment that being self-employed as a contractor involves more than being at a client’s premises and performing physical work. Part of self-employment involves sourcing work and Mr. [P.] submits that he was actively looking for work. I do not find the evidence in that regard to be convincing.

59According to Mr. [P.], in November 2014, as he was expecting to be cleared to return to work in the near future, he contacted at least one former client and let him know he would soon be medically fit again. The client advised that he might have a project at his home and would call Mr. [P.] back. The client never called back. There was no other evidence of potential work.

60I am unconvinced that the single discussion with a former client about the possibility of carrying out work at the client’s residence at some ill-defined future time is sufficient to establish that Mr. [P.] was actively self-employed at the time of the accident. It falls into the category of a vague intent to return to work.

61I am reinforced in this position by two things. Through his recovery from his heart attack, Mr. [P.] undertook a conditioning program to build his stamina. He was walking regularly for 45 minutes, either outside or at the mall. Dr. Taromi also notes that Mr. [P.] had normal left shoulder strength and range of motion, so from a physical perspective, it is difficult to see why he could not take on some contracting work, hiring help for the heavier tasks as he had done before the heart attack. It is also the case that Mr. [P.]’s psychological condition did not escalate to the point of needing the intervention of a psychologist until August 2015. There would appear to be little to stop Mr. [P.] seeking contract work in late 2014 and early 2015. His failure to do so suggests he had decided to give up his contracting business.

62As a result of the above, I find that Mr. [P.] was not a self-employed person as required by s. 5(1)2. and therefore, is not entitled to an income replacement benefit.

63There is conflicting evidence regarding the efficacy of the two physiotherapy treatment plans for which Mr. [P.] has claimed. There are numerous medical documents suggesting a need for physiotherapy, particularly the analysis of Dr. Taromi setting out a requirement for physiotherapy during the one-year recovery period following right shoulder surgery and six months following left shoulder surgery. There is Mr. [P.]’s self-report on the benefits of physiotherapy to his chronic pain assessor, Dr. Sofian Al-Samak, and Dr. Al-Samak’s recommendation on future treatment. There is also the report of Wawanesa’s own assessor, Dr. Halman, an orthopaedic surgeon. In weighing these factors and setting aside the adverse finding on causation for this part of the analysis, I conclude that the two treatment plans are not reasonable and necessary in any event.

64The two benefits Mr. [P.] claims entitlement to are: $3,998.00 for physiotherapy services submitted by Sahib Physiotherapy and denied on June 2, 2017 and $7,348.00 submitted by Erindale Physiotherapy, also denied on June 2, 2017. I have looked in vain in the documents for the treatment plans so I cannot review the stated goals of the treatment. In the absence of these documents, I am not without resources. He was assessed by Dr. Halman on behalf of Wawanesa to determine whether the treatment and assessment plans were reasonable and necessary. Dr. Halman concluded that Mr. [P.] had achieved maximal medical recovery from the soft tissue injuries he sustained in the accident and the treatment was not reasonable. I have covered Dr. Halman’s report above and will not review it further here.

65I also note that Mr. [P.] attended a chronic pain assessment with Dr. Al-Samak. Dr. Al-Samak practices in the area of chronic pain assessment and treatment. He assessed Mr. [P.] on October 19, 2018. In his report, also dated October 19th, Dr. Al-Samak reviewed Mr. [P.]’s ongoing treatment, especially physiotherapy treatment. He recorded Mr. [P.]’s report of the impact of physiotherapy, as follows:

The claimant initially attended physiotherapy and massage therapy sessions where he received passive modalities till summer of 2017.

Since then, the claimant has been receiving passive physiotherapy modalities and massage therapies, and he has also participated in an exercise program. Regardless of some improvement in his upper limb muscular strength, Mr. [P.] reports that the treatments have only been partially helpful for his chronic pain, and any pain relief has been short-lasting. He did not achieve long term improvement in his pain and functionality.

66Dr. Al-Samak’s report, 4 years post-accident, suffers from the same conclusory faults that Dr. Richards’s report does. Dr. Al-Samak accepts, without critical analysis, that Mr. [P.]’s chronic pain condition was caused by the accident. This is not to say that Mr. [P.] does not have a chronic pain condition but Drs. Paitich and Halman raise the question of causation. To the extent that Mr. [P.]’s accident-related impairments are psychological in nature as agreed by Dr. Wolf in his assessment, a broad-spectrum approach involving psychological treatment and physiotherapy, as Dr. Al-Samak suggests, may provide relief, but I do not have such a treatment plan before me. In its absence, $11,346.00 for physiotherapy to provide only transient relief would be the epitome of unreasonableness and lack of necessity.

Payment for the Preparation of 2 OCF-3 forms and a Parking Expense.

67As part of his application for benefits under the Schedule, Mr. [P.] submitted three Disability Certificates (OCF-3) and claimed payment of $295.00. He also claimed parking expenses of $119.50. The OCF-3s were not provided to me by either party but Wawanesa included the Explanation of Benefits denying payment. Mr. [P.] is not entitled to either of these expenses.

68The Schedule addresses the requirement for an OCF-3 in several places. Section 36 required Mr. [P.] to deliver an OCF-3 because he was seeking a “specified benefit.” Specified benefits are defined as “an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping or home maintenance services under section 23.” Mr. [P.] applied for both an income replacement benefit and a housekeeping and home maintenance benefit. Section 37 gives Wawanesa the right to require delivery of additional OCF-3s to confirm continuing entitlement to a specified benefit.

69Wawanesa’s obligation to pay for the preparation of an OCF-3 is set out in s. 25 of the Schedule. It is this section on which Mr. [P.] relies. He states at paragraph 31 of his submissions: “Section 25(1) 1 of the SABS states that an insurer shall be liable for the cost of preparing a Disability Certificate (OCF-3), including any assessment or examination necessary for that purpose.” While this statement is true, it is not unqualified. The actual wording of the section reads: “Reasonable fees charged for preparing a disability certificate if required under section 21, 36 or 37.” [emphasis added]

70As stated above, Mr. [P.] applied for 2 specified benefits, income replacement and housekeeping and home maintenance. On its face this might justify the submission of 2 OCF-3s. I will concede that it was not unreasonable to submit an initial OCF-3 with the original Application for Benefits for a total of 3. Mr. [P.] purports to have submitted 6 OCF-3s, although Wawanesa submits that it has not received the last three and did not require them.

71Section 25 puts an onus on Mr. [P.] to demonstrate why the additional three OCF-3 were required. Other than citing s. 25, Mr. [P.] has put no evidence before me to justify the preparation of additional OCF-3s. In fact, these OCF-3s, would have been prepared against a backdrop of ongoing assessments where Mr. [P.]’s medical history and current complaints had been pored over by numerous medical professionals and there was little ambiguity about the state of his health. There was no need for him to unilaterally update Wawanesa on his condition. To do so was to incur an unreasonable expense.

72While the amount claimed under this head includes a claim for $119.50 for parking expenses, neither party addressed parking expenses in their submissions. In its denial, Wawanesa pointed out that travel expenses for treatment are subject to a 50 km. deductible. I have no evidence to suggest that the treatment providers in question were more than 50 km. from Mr. [P.]’s home. The onus of proof rests with the applicant and Mr. [P.] has not satisfied his onus to establish entitlement to this expense.

ORDER

73For the forgoing reasons, Mr. [P.]’s application to the Tribunal for:

i. A finding that he sustained a catastrophic impairment under s. 3(2)(e) of the Schedule as a result of the accident, that is, an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55% or more impairment of the whole person;

ii. A finding that he is entitled to receive a weekly income replacement in the amount of $282.72 for the period of December 11 – 31, 2014, as submitted on February 20, 2015 and denied on February 19, 2016;

iii. A finding that he is entitled to receive a weekly income replacement in the amount of $173.25 for the period of January 1, 2015 through May 7, 2016, as submitted February 20, 2015 and denied on February 19, 2016;

iv. A finding that he is entitled to receive a medical benefit for physiotherapy services in the amount of $3,998.00 as submitted by Sahib Physiotherapy and denied on June 2, 2017;

v. A finding that he is entitled to receive a medical benefit for physiotherapy services in the amount of $7,348.00 as claimed by Erindale Physiotherapy and denied on June 2, 2017;

vi. A finding that he is entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week, for the period from December 3, 2014 to date and ongoing, denied on December 3, 2014; and

vii. A finding that he is entitled to payments for invoices submitted for the completion of 2 OCF-3 forms and for parking expenses in the total amount of $414.50,

is dismissed.