Bartley v. Unifund Assurance Company, 2023 CanLII 113688

Citation: Bartley v. Unifund Assurance Company, 2023 ONLAT 22-006465/AABS

Licence Appeal Tribunal File Number: 22-006465/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Janelle Bartley

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Sandra Driesel

APPEARANCES:

For the Applicant:

Janelle Bartley, Applicant

Maria Papadopoulos, Paralegal

For the Respondent:

Vikporiya Rolik, Adjuster

Thusha Mayuran, Counsel

Court Reporter:

Sirana Hanson

HEARD: by Videoconference:

October 10 & October 11, 2023

OVERVIEW

1Janelle Bartley, the applicant, was involved in an automobile accident on August 27, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PROCEDURAL ISSUES

Motion to convert this video conference hearing to a written hearing denied.

2At the start of the hearing, having ascertained that the only witness expected for this 2-day hearing would be the applicant herself, counsel for the applicant asked the Tribunal to consider not having the applicant attend and to convert the hearing to a written hearing. Counsel explained that her client could not appear because she anticipates she will suffer from emotional distress by having to speak at the hearing. Counsel submits that it was only at the last minute that the applicant declared that she did not want to participate.

3The respondent argues this motion to convert the hearing type comes without warning it does not consent to this request and explained that it was prepared to cross-examine the applicant in relation to her income replacement benefit (“IRB”) dispute. The respondent notes that her last communication to applicant counsel was on October 6, 2023, to confirm the witness status and there was no indication then, that the applicant was not going to appear at hearing.

4Rule 15.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”) states that:

A party may have a motion heard at a case conference or hearing, provided the party files the Notice of Motion and all supporting materials with the Tribunal at least 10 days in advance, or in accordance with any other schedule as may be determined by the Tribunal, and serves the Notice and supporting materials on all other parties.

5Rule 3.1 of the Rules allows the Tribunal to vary its own rules in order to ensure a fair, open and accessible process. What I considered here is that this motion was not filed in a timely manner in accordance with Rule 15.2 and therefore the respondent was not given any opportunity to prepare a response to this motion. Also, this application was filed with the Tribunal on June 7, 2022, more than a year ago and that converting this videoconference hearing to a written hearing will result in yet a further delay in the resolution of this file.

6I denied the applicant’s motion to convert the hearing type.

The applicant cannot pursue an award under s. 10 of Regulation 664.

7The respondent argued that the order arising from the case conference held on March 10, 2023, stipulated the applicant was to provide particulars of her award claim 30 days after the receipt of the adjuster’s log notes. The respondent claims she spoke to the applicant's counsel approximately 3 weeks before the hearing when the particulars of the award were not received, and the applicant’s counsel stated she was unaware the log notes were sent together with the surveillance information (which she acknowledged receipt of) and that she would be providing the particulars as soon as possible. At the start of the hearing the respondent has not received the particulars from the applicant.

8I find that the applicant did not provide particulars of the award claim prior to the hearing as ordered. Rule 9.4 provides the Tribunal with the discretion to consent to the admission of documents or things that a party may rely on as evidence at the hearing, even if a party fails to comply with any directions or orders with respect to its disclosure. In this case, the applicant failed to comply with the production of the particulars as ordered, and then failed to correct this oversight when given the opportunity before the hearing. I find it would be a breach of procedural fairness to allow the applicant to proceed with the award claim without giving the respondent an opportunity to prepare a response. As a result of the above, I have dismissed the issue of award.

Adjournment

9Having decided the matter would proceed as scheduled, counsel for the applicant was asked to contact her client to have her attend. We were advised that the applicant was at work and could not attend until day two. The parties agreed that opening statements would be deferred until day two when the applicant would be present. With no other witnesses scheduled the matter was adjourned on October 10, 2023, to reconvene at 9:30 am on October 11, 2023, to accommodate the applicant’s attendance.

ISSUES

10The issues to be decided in the hearing are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 3, 2020, to September 30, 2021?

ii. Is the applicant entitled to the following treatment plans for chiropractic services recommended by Alma Rehab:

i. $2,416.63 submitted on May 10, 2021?

ii. $2,095.57 submitted on July 26, 2021?

iii. $2,825.37 submitted on December 14, 2021?

iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre in a treatment plan submitted on March 31, 2021?

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

RESULT

11I find that:

i. The applicant is not entitled to the IRB from September 3, 2020, to September 30, 2021.

ii. The applicant is not entitled to the treatment plans and assessments in dispute.

iii. As no benefits are payable, the applicant is not entitled to interest.

ANALYSIS

Background

12On August 27, 2020, the applicant, was the driver of a vehicle stopped to order food in a drive-through line at a restaurant when she was struck from behind by another vehicle. The airbags did not deploy, and no police or medical personnel attended the scene. The applicant did not go to the hospital but did go to her family doctor to report the accident and her complaints for injuries she believed she sustained in the accident. The applicant claims the injuries she sustained in this accident have developed into a chronic pain syndrome, her combined impairments prevented her from returning to work until October 2021, and that injuries sustained in this accident still require treatment that has been denied by the respondent.

13The respondent takes the position that the applicant did not go back to her pre-accident employment because of the affects of the COVID-19 pandemic (“COVID”). It claims that she has been inconsistent with her reporting to various assessors, and as supported by video surveillance evidence, the applicant has been less than truthful regarding her functional abilities.

The applicant is not entitled to an Income Replacement Benefit (“ IRB”) for the period in dispute.

14I find for the reasons to follow that the applicant has not met her onus to prove her entitlement to a pre-104 IRB for the period from September 3, 2020, to September 30, 2021.

Entitlement to IRB under the Schedule

15Entitlement to a pre-104-week IRB falls under s. 5(1)1(i) of the Schedule: an IRB is payable if the insured person 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. This inquiry is divided into two steps: 1) what are the essential tasks of the insured person’s pre-accident employment; and 2) is the insured person substantially unable, as a result of the accident, to perform those tasks? The onus to prove entitlement rests with applicant on a balance of probabilities.

The essential tasks of the applicant’s pre-accident employment

16The applicant explains that until March 2020, when her employer ceased regular operating status due to COVID she worked as an Event Manager for “EPIC”, an engineering education facility. She reports her job-related duties included assembling presentation packages, assisting with set up of training facilities and events, lifting materials and catering items, as well as often having to shop for items, so she had to drive and transport supplies and food.

17The applicant admits that at the time of the accident she was recently laid off because of COVID. The applicant takes the position that because of this accident she suffered an inability to return to work until October 2021, and she is requesting an IRB for the period of September 3, 2020, to September 30, 2021. The applicant states that she discussed returning to work after her accident, but once she talked with her employer and explained her accident-related injuries have resulted in her inability to do all of her previous employment tasks, she was terminated.

18The respondent submits that the applicant has been inconsistent in her presentation of accident-related injuries provided to various health professionals. The respondent also submitted surveillance evidence to show the applicant performing certain activities that she previously reported to be incapable of doing because of accident-related injuries. It therefore submits that any diagnosis dependent on the applicant’s self-reporting should be considered less than reliable. The respondent argues that the applicant has failed to provide any convincing medical evidence to prove that she suffered a substantial inability to complete her employment tasks during the period in dispute and argues that the only reason the applicant did not return to work was because of COVID.

Surveillance and false reporting speak to credibility of the applicant’s testimony.

19Regarding the surveillance footage and evidence extracted from the applicant’s social media activity, I consider this to be only a snapshot in time and is not necessarily representative of all of the applicant’s day-to-day functions. However, I find this evidence does contradict the applicant’s recent testimony because it shows that she has ability to drive, to wear high heeled shoes, interact socially and participate in weight training and working out. The video evidence served to bring to light some of the inconsistencies or omissions in the applicant’s self reporting.

The applicant has not been truthful regarding her employment termination.

20The applicant testified that she was laid off work at the time of the accident and that she was subsequently terminated because she was unable to perform all of her job-related tasks due to her accident-related injuries. I am more persuaded by the records in evidence from her employer (“EPIC”) and employment insurance (“EI”) documents that state she was laid off from EPIC on March 27, 2020, and that she was eventually terminated on October 7, 2020, with the reasons in both cases cited as being due to COVID.

21During the applicant’s Examination Under Oath (“EUO”) that took place April 26, 2023, and her testimony at the hearing, the applicant admits she was not working at the time of the accident because of a COVID layoff. The applicant then claims that she reported her accident to her manager and explained to him that there were tasks she would not be able to do or would require assistance with, because of the injuries she sustained. In her account of the conversation, she states her manager told her that if she was unable to serve, shop, carry boxes or drive, it would be inconvenient to have her working there. The applicant admits that there is no record of this conversation with her employer, but she believes she lost her job because the injuries she sustained in the accident restricted her from doing some of the essential tasks required of her job. The applicant has failed to point out any medical opinion to collaborate the restrictions or limitations she reported to her employer.

22The applicant completed an application for Employment Insurance (“EI”) on October 19, 2020, approximately two months after the accident. She indicated in the EI application that she was applying for “Regular benefits” and the application form includes the explanation that this is “a benefit you may be given when you have lost your job (through no fault of your own) and you are available for and able to work but can’t find a job”. During the time the applicant was receiving an EI benefit, she completed a bi-weekly EI statement to confirm she was looking for employment and ready to work at any time. During this same time, the applicant also received the Canada Emergency Response Benefit (“CERB”), a financial support provided by the government to employed Canadians who were directly affected by COVID.

23When questioned about receiving EI and the CERB the applicant stated she was unaware that there were two benefits and that to her knowledge she was receiving CERB only. However, when confronted with her statement of benefits from EI, she admitted to receiving payment until September 13, 2021.

24In evidence is the applicant’s Record of Employment completed by her employer and the Termination Contract also completed by her employer both of which cite the reasons for her layoff and subsequent termination due to COVID and the necessity to restructure the business. I find there is convincing evidence to support the fact that the applicant was not working at the time of the accident and did not return to her pre-accident employment because her job was not available due to the COVID pandemic.

25I find the applicant’s less than truthful reporting regarding her termination from EPIC, plus the surveillance video speak to the applicant’s lack of credibility. There is still a requirement for me to determine if the applicant meets the test of IRB eligibility pursuant to the Schedule. However, the above gives me reason to question the findings of any assessor who has relied solely on the applicant’s subjective reporting to formulate an opinion of the applicant’s functional abilities or impairments she alleges are a result of the accident.

The Applicant has not met her onus to prove she suffers a substantial inability to work due to her accident-related impairments.

26I agree with the respondent that the applicant has failed to provide an assessment that addresses the tasks attached to her pre-accident employment and why, as a result of any injury she sustained in the accident she is unable to complete these tasks.

27In this case, there is compelling evidence from the applicant’s own family doctor for over 15 years, Dr. J. Barretta, which shows her opinion that there is no accident-related impairment that limits the applicant in any way.

28In her clinical notes and records Dr. Barretta makes several references to the applicant’s claims of injuries she alleges were sustained in the subject accident. Dr. Barretta’s notes include references to various testing or imaging she received from other health care professionals. Dr. Barretta continually denies there is any impairment suffered by the applicant that would restrict her ability to engage in her pre-accident activities and goes as far as noting that there is no connection between the post accident complaints reported by the applicant and the actual accident of August 27, 2020:

i. On October 19, 2020, Dr. Barretta notes the applicant’s complaint of shoulder pain, neck stiffness and a request that she ‘find out what’s wrong’, Dr. Barretta notes she reassured the applicant that there were no findings on the ultrasound and expected no long-term issues. Dr. Barretta also writes that she advised the applicant that an x-ray was not warranted.

ii. On December 10, 2020, Dr. Barretta notes the applicant reported shoulder pain and sore legs as a result of the accident. Notes indicate Dr. Barretta discussed with the applicant that similar leg pain was reported in October 2019 and she does not attribute any leg soreness to the accident.

iii. On April 7, 2021, the applicant complained of a knot in her right shoulder blade and while she states this occurred when she was moving her closet due to a home renovation, she references the accident. Here, Dr. Barretta notes (in reference to the applicant) “She has made a claim for MVA & suspect some secondary gains are at play.”

iv. On August 5, 2021, when the applicant complained of neck and shoulder pain, plus sleep difficulty, she told Dr. Barretta she was not working and that COVID interfered with her having her last job. Dr. Barretta records that during this in-person interview she discussed with the applicant the following:

a. The accident did not cause long term physical issues and there is no shoulder tear.

b. The applicant’s common complaints of general tension are not related to the accident.

c. She has no limitations with her activities and the doctor encouraged her to pursue work in which she is interested.

v. On March 24, 2022, the applicant reports that she is experiencing overall, ‘non-specific’ body pain, back pain and knee pain. Dr. Barretta notes the applicant is relating her symptoms to pre and post accident. Then she notes that she told the applicant that she [Dr. Barretta] “reviewed all investigations post-accident and they were normal. No shoulder pathology.” Dr. Barretta also notes that she re-assured the applicant that there was no mechanical injury from the accident and that her non-specific body pains were not related to the accident. She reiterates ‘there are no limitations’ from any injuries caused in the accident.

29The applicant submitted an OCF-3 – Disability Certificate on September 23, 2020, completed by Dr. Roger Singh, Chiropractor. While this form reports the applicant suffers complete inability to work, complete housekeeping and home maintenance tasks, as well as having difficulty caring for herself and participating in regular social activity, it is not supported by other evidence detailing how this diagnosis of limitations and restrictions were determined. It is also a contradiction of the applicant’s family doctor’s opinions recorded in her notes and records.

The Applicant has not proven she suffers from chronic pain syndrome (“CPS”)

30The applicant claims her CPS developed through injuries she sustained in the accident and that CPS has impacted her functioning and restricted her from being able to work. While the applicant is relying on the assessment of Dr. Wilderman that diagnoses her with CPS I am not persuaded by this report for the reasons to follow.

31The American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition 2008, pp 23-24 (’AMA Guides’) identify six criteria as “major” characteristics of chronic pain syndrome (“CPS”), with three required to establish CPS:

1. the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. excessive dependence on health care providers, spouse, or family;

3. secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4. withdrawal form social milieu, including work, recreation, or other social contacts;

5. a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

6. the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.

32The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule for the purpose of determining an IRB benefit. The Tribunal has adopted the use of the AMA Guides as an interpretative tool for evaluating chronic pain claims in the absence of a diagnosis. Dr. Wilderman conducted an assessment on May 31, 2021, that opined that applicant scored positive for the AMA Guide criteria 2, 3, 4, 5 and 6 (above) which is a score of 5/6, which meets the threshold for a probable diagnosis of CPS.

33The respondent further submits that the diagnoses made by Dr. Wilderman were based entirely on the applicant’s self-reporting. I agree. Dr. Wilderman concludes the applicant has developed CPS that prevents her from partaking in daily activities as she did prior to the accident, including her ability to work. Dr. Wilderman’s report states the applicant has been unable to return to work or find other gainful employment following the accident due to her pain, social anxiety and vehicular anxiety. This doctor comments that as a result of the impairment arising from the accident, the applicant has become less marketable as an employee to potential employers. Dr. Wilderman’s report fails to address how he established, except for her own reporting, that the applicant could not work or was not marketable. There is no record of the applicant attempting to do any kind of work after the accident until she started a job in October 2021.

34I find that these conclusions regarding the applicant’s employability are not supported by any rationale that explains what tasks were required of her pre-accident employment; tasks anticipated in any post-accident employment considerations; and specifically what limitations or restrictions the applicant has that causes her inability to complete these tasks.

35Dr. Wilderman claims to have reviewed certain documentation, but he neglects to report on any reconciliation of this documentation in an effort to confirm the applicant’s self-reporting. Through self-reporting by the applicant Dr. Wilderman reports she has pain and limitations that prevent her from many pre-accident activities including spending time with family and friends, attending social events, taking road trips and that she feels confined to her home since the accident. Dr. Wilderman opines that the applicant reports experiencing constant pain, frequent headaches and episodes of dizziness for approximately 9 months, which he determines is “not normal” and this has resulted in a substantial impairment of her activities of living. Dr. Wilderman does not provide any medical evidence of how her reported pain is detrimental to her functional abilities. He does not explain how he determined when any of these symptoms of pain started, who diagnosed the applicant’s alleged accident-related impairments and provided an expected recovery from the impairments for him to conclude the applicant didn’t recover as expected, or in a period of time considered to be “normal”. Dr. Wilderman completely ignores any impact of COVID restrictions on the applicant’s work and social activities. Also, he doesn’t address the opposing opinion of the applicant’s own family physician who states there is no physical impairment preventing the applicant from returning to work and on more than one occasion notes her post-accident complaints are not accident related.

36For these reasons, I am not persuaded by Dr. Wilderman’s opinion that the applicant suffers from CPS or that in turn CPS has resulted in a substantial inability to perform the essential tasks of her employment.

37The applicant has not met her evidentiary burden under the Schedule and is not entitled to the income replacement benefits being claimed in this application.

38I find that the applicant has failed to provide evidence to support on the balance of probabilities that the proposed treatment plans and the assessment in dispute are reasonable or necessary to treat the applicant’s injuries she sustained in the accident.

39The applicant submits that chiropractic treatment is reasonable and necessary because her accident-related injuries have not healed because she has developed CPS. In my review (above) of Dr. Wilderman’s report I was not persuaded that the applicant suffers from CPS. With no other evidence submitted by the applicant to support her position on these plans, I have not found them to be reasonable and necessary for the treatment of any injuries the applicant has sustained in the accident. The applicant is not entitled to any of the chiropractic treatment plans in dispute.

Chronic Pain Assessment by Ontario Independent Assessment Centre

40The applicant submits this assessment dated March 29, 2021, is necessary because of the applicant’s noted injuries and the length of time it has been since the accident. The attachment to this OCF-18 recommending the assessment lists references to physical injuries that were self-reported and not validated by other medical evidence. As indicated above, the applicant’s family doctor, Dr. Barretta, has consistently recorded her opinion that the applicant did not suffer any injury as a result of the accident that would have any long-term affect. I have not been directed to evidence to support this assessment is reasonable and necessary and I therefore do not find the recommended assessment to be payable.

Interest

41Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

42The applicant is not entitled to an IRB.

43The treatment plans and assessment in dispute are not reasonable and necessary and as no benefits are owing, the applicant is not entitled to interest.

44The application is dismissed.