Maksym Ovramenko v. Certas Home and Auto Insurance Company, 2024 CanLII 86461

Licence Appeal Tribunal File Number: 22-008478/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:

Maksym Ovramenko

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Emily Siu, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Maksym Ovramenko (the “applicant”), was involved in an automobile accident on December 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 Certas Home and Auto Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? (“MIG”)
Is the applicant entitled to $3,968.06 for chiropractic services from Life Point Medical proposed by Marko Pavacic, chiropractor, in a treatment plan (“OCF-18”) dated April 30, 2021?
Is the applicant entitled to $1,849.75 for an attendant care assessment from Life Point Medical proposed by Evgeni Amchislavsky, occupational therapist, in a OCF-18 dated May 3, 2021?
Is the applicant entitled to $49,174.00 for dental services proposed by Dr. Ko in a OCF-18 dated February 16, 2021, denied by the respondent on April 27, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. He is not entitled to the treatment plans, nor interest.

iii. The application is dismissed.

PROCEDURAL ISSUE

The new evidence will be admitted into the record

4I will admit the treatment plan of Dr. Oleksandr Lenidobich Krolik, dated February 13, 2013, a doctor’s record, dated January 4, 2024 by Dr. Krolik, two affidavits of translation by Valery Gulyaev, dated January 6, 2024, and the applicant’s email (“the new evidence”), as evidence for this hearing. However, I decline to strike the s. 44 report of Dr. Aviv Ouanounou, dental surgeon, from the record, for the reasons outlined below.

5Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal. At the same time, under Rule 3.1 of the Licence Appeal Tribunal Rules, 2023, (the “Rules”) the Tribunal will interpret the Rules liberally to facilitate a fair, open, and accessible process and to allow effective participation by all parties.

6The Case Conference Report and Order (“CCRO”), dated April 3, 2023, was clear that the deadline for documents not previously disclosed but which the parties intended to rely upon for the hearing was due 90 calendar days after the case conference (i.e., July 2, 2023).

7On January 8, 2024 (four days before this hearing was scheduled to commence) the applicant sent an email to the Tribunal and the respondent. In this email, the applicant’s representative office advised that they had received additional medical evidence from the applicant, and enclosed two email attachments. In this email, no specifics were provided of what the two email attachments were, other than just stating it was additional medical evidence. The applicant’s representative also sought relief from the Tribunal that this evidence be admitted and that the s. 44 report of Dr. Ouanounou, be struck from the record. In response, on January 8, 2024, the respondent opposed this evidence being admitted.

8On January 9, 2024, the Tribunal advised the parties to submit the appropriate forms in accordance with the Tribunal’s process, as it did not accept requests of this nature by email. As such, on January 9, 2024, the applicant filed a Notice of Motion. Subsequently, the respondent provided its submissions with respect to this motion, and the applicant filed reply motion submissions. On January 10, 2024, the Tribunal advised the parties that this motion was scheduled to be heard with the substantive matters at this written hearing.

9In the Notice of Motion, the applicant submits that the additional evidence be admitted as it was recently received, and the delay in receiving this was caused by the war taking place in Ukraine. He argues that this is an exceptional situation.

10In response to the motion, the respondent provided specifics of the new evidence, that the applicant is seeking to admit into the record, which include:

i. A treatment plan of Dr. Krolik, dated February 13, 2013.

ii. Doctor’s record of Dr. Krolik, dated January 4, 2024.

iii. Two affidavits of translation by Valery Gulyaev, both dated January 6, 2024.

iv. An undated email from the applicant regarding his upcoming appointment with Dr. Lathams’s office for his leg problem.

11The respondent argues that the motion be dismissed and no new evidence be introduced by the applicant. It argues that the Notice of Motion was not served properly in accordance with Rule 15.1 of the Rules. Moreover, the respondent argues that the applicant was non-compliant with the CCRO and that it would be prejudiced if the new evidence is admitted. Finally, the respondent relies upon the authority of Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63 (“Schick”) that the applicant should not split his case and is required to put his full case forward at first instance.

12As the respondent has raised concerns that the applicant was non-compliant with Rule 15.1 of the Rules, and therefore the motion should be dismissed, I turn to this first. I agree with the respondent that the applicant was non-compliant with Rule 15.1 of the Rules, as he did not serve his Notice of Motion on the respondent before filing it with the Tribunal. Instead, on January 9, 2024, the applicant both served and filed his Notice of Motion on both the respondent and Tribunal simultaneously.

13However, in accordance with Rule 3.1 of the Rules, I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if this motion was to be dismissed on this technical basis, especially since the respondent was given an opportunity to respond, which it did.

14The respondent also argues that the applicant served the Notice of Motion on its previous representative, even though he was aware of the respondent’s new counsel and as a result the motion should be dismissed. It is unclear from these submissions, whether the respondent is arguing that the motion should be dismissed because the applicant served its previous representative or that the applicant did not serve the new counsel. In any event, I disagree that the motion should be dismissed on this basis, because the applicant served the respondent and both its previous and new counsel. As such, it is unclear to me why this motion should be dismissed on this basis, when the applicant served the notice of motion on the respondent and its new counsel.

15I now turn to the substantive nature of this motion, which is whether the new evidence should be admitted at this stage, I find that it should for the following reasons.

16I find that the new evidence is relevant to the issues in dispute, despite the applicant being in breach of the CCRO. Pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S. 22 (“SPPA”), documents relevant to the issues in dispute are admissible as evidence.

17The respondent did not provide particulars of the prejudice it would suffer as a result of this new evidence being admitted. In any event, even if the respondent suffered prejudice, the evidence’s probative value outweighs it. Furthermore, the respondent in its motion submissions provided a response to the new evidence, and why it should be given little weight by this Tribunal. In my view, the potential prejudice that might have affected the respondent would have been mitigated by the fact that it was able to provide a response.

18The respondent refers me to the authority of Schick to support its position that this new evidence should not be admitted. I acknowledge that the Court in Schick struck two affidavits from the record, as it was inadmissible hearsay evidence and improper case-splitting due to an improper reply. However, I find that the factual matrix in that authority is distinguishable from the matter before me.

19In Schick, the issue before the Court was whether new evidence in reply submissions, (i.e., the two affidavits) should be struck from the record. Notably, the Court at paragraphs 26 to 28 determined that the two affidavits were inadmissible hearsay evidence, and this was the main basis for striking the evidence. Moreover, the plaintiff in Schick argued that he was entitled to call evidence in reply because the defendants had raised new matters in their responding materials which he could not have known of in advance (see paragraph 19).

20In the matter before me, the respondent does not raise concerns that the new evidence is inadmissible hearsay evidence. In any event, Section 15(1) of the SPPA permits the Tribunal to admit into evidence any oral testimony and document or other thing relevant to the subject matter of the proceeding and may act on such evidence. The new evidence is not included in the two exceptions provided by section 15(2) of the SPPA: they are not documents that would be inadmissible in a court by reason of any privilege under the law of evidence, nor are they inadmissible by the Insurance Act, Schedule, or other statute.

21Also, the respondent was given an opportunity to provide responding motion submissions to the new evidence, which it did, unlike the defendants in Schick.

22The respondent also argues that the undated email from the applicant is improper evidence, because it is submissions and not evidence. I disagree. This email is not submissions but self-reporting by the applicant of an upcoming appointment at the doctor’s office. This is no different than his self-reporting to Dr. Ouanounous that he saw his family physician four to five days after the accident, without this documentation being provided for Dr. Ouanounous’s review.

23Finally, it is unclear from the applicant’s motion material, whether he is still seeking relief to strike the s. 44 report of Dr. Ouanounous. The Notice of Motion did not seek this relief, however, as noted above, on January 8, 2024, an email from the applicant’s representative indicated he was seeking this relief. As such, I have considered whether the s. 44 report of Dr. Ouanounous should be struck from the record, and I find that it should not. The applicant provided no specifics on why this evidence should be struck from the record, other than stating it was because of the new evidence. Thus, I decline to grant this relief, as the applicant has not established why this evidence should be struck.

24In short, I will admit the new evidence into the record, however I will not strike the s. 44 report of Dr. Ouanounous from the record.

ANALYSIS

The Minor Injury Guideline

25Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

26An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

27In all cases, the burden of proof lies with the applicant.

28The applicant argues that as a result of the accident, he sustained pain in his left leg, feet, jaw, right shoulder, neck, mid back, right ankle, headaches, and subsequent dental problems. He further argues that his chronic tear in the ankle, extensive dental trauma, and significant soft tissue injuries, go beyond the parameters of the MIG. The applicant also submits that his conditions have led to chronic pain, and the respondent has underestimated the psychological impact of the accident on him. I infer from this, that the applicant is also seeking to be removed from the MIG on the basis of his chronic pain and psychological impairments.

29The respondent counters that the applicant has not discharged his evidentiary burden in proving that the accident was a necessary cause of his impairments. The respondent relies on the Ontario Divisional Court decision in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), which confirmed at paragraph 31 that the “but for” test is the appropriate causation test to use in the accident-benefits context. It also argues that the applicant has not produced the pre-accident records, and therefore it is impossible to determine whether the accident was a necessary cause of the applicant’s impairments.

30The respondent also made submissions that the applicant has not demonstrated that his injuries fall outside of the MIG.

The applicant has not established that the accident was a necessary cause of his dental impairments

31I find that the applicant has not established on a balance of probabilities that the accident was a necessary cause of his dental impairments, thus the “but for” test is not met.

32The applicant submits that he reported pain to his lower teeth, jaw, and a possible mandible fracture, shortly after the accident. The applicant also argues that his dental issues escalated following the accident, and as a result he requires a comprehensive dental assessment, including restorative options, implants, drainage of an abscess, as a result of a dislodged bridge, fractured teeth, and cracked upper left tooth, which he appears to be arguing was caused by this accident.

33To this end, the applicant relies on the clinical notes and records of Mackenzie Health, Dr. James Ko, his treating dentist, Dr. Amir H. Minoo, his family physician, and a Disability Certificate (“OCF-3”), completed by Rudi Chan, chiropractor, dated May 10, 2021.

34As noted above, the respondent raises causation concerns and relies upon the s. 44 report of Dr. Ouanounou, and the initial report, dated February 5, 2021, and the addendum report, dated February 16, 2021, both completed by Dr. Ko.

35The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities. The applicant must show that he would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause” (see: paras. 31, 36, and 39 of Sabadash).

36I find that the applicant has not established on a balance of probabilities that the accident was a necessary cause of the infected teeth, large cavities, broken/chipped teeth, missing teeth, broken/falling bridges, and damaged teeth, which requires the extensive dental treatment as proposed by Dr. Ko.

37To begin, It is unclear from the applicant’s own self-reporting to Ms. Paula Arruda, registered nurse, on January 7, 2021, whether he is linking a cracked upper left tooth, and a chipped tooth to the accident. Notably, there is no indication in this record of whether he sustained these impairments from the accident, or whether the accident aggravated his pre-existing dental issues, resulting in these impairments. Instead, the applicant self-reported that he had these issues and it was documented.

38Next, I place little weight on the applicant’s self-reporting to Dr. Ko, that he sustained both broken teeth and a loose bridge, as a result of the impact from the accident. I acknowledge that the applicant summarized this entry in his submissions. However, I place more weight on the initial report, dated February 5, 2021, and the addendum report, dated February 16, 2021, both completed by Dr. Ko. I place more weight on these reports because I agree with Dr. Ko’s opinion that without the pre-accident dental records, including previous x-rays, it is difficult to ascertain whether the accident is the necessary cause of the dental work required.

39Particularly, Dr. Ko submitted a treatment plan, dated February 5, 2021, in which he opined that the applicant required extensive dental treatment as a result of his infected teeth, large cavities, broken teeth, missing teeth, broken/falling bridges, and damaged teeth.

40I further acknowledge that the applicant produced a treatment plan of Dr. Krolik, dated February 13, 2013, and the doctor’s record, dated January 4, 2024, however I find this is insufficient evidence to establish whether the accident was a necessary cause of the dental issues that require the extensive treatment.

41I acknowledge that the records note that the applicant required extensive dental work in February of 2013, including root canal treatment, filings, removal of his teeth, and prosthetics with crowns. However, these records are not a complete set of his pre-accident dental records. The applicant acknowledged this in the undated email attached with these records. In this email, the applicant noted that both the clinic and attending physician were not available, thus he was including the evidence he had in his possession. In a similar vein, no x-rays were included with these records.

42I agree with both Drs. Ko and Ouanounou, that the complete pre-accident dental records and x-rays are required to determine whether the accident was a necessary cause of the dental issues that require the extensive dental work. I agree with these opinions, and without the complete pre-accident dental records, I am unable to make a determination of whether the accident was a necessary cause of these dental impairments. Thus, the applicant has not met his burden here.

43I also find that the applicant has not established on a balance of probabilities that the accident was a necessary cause of his jaw pain and pain in his lower teeth on the left side. I acknowledge that the applicant relies on his self-reporting to Drs. Minoo, Ko, and Greenwald that he had this pain following the accident, however none of these doctors have linked this accident to his pain. Rather, Dr. Greenwald has noted that the applicant has some underlying dental injury that requires further investigation, and Dr. Ko is unable to provide an opinion of whether the applicant’s issues are connected to the accident. Dr. Greenwald further noted that the applicant had previous bridge work done in the area of his teeth where he was having pain.

44Moreover, on April 26, 2021, the applicant denied that he had jaw pain to Dr. Ouanounou, which is inconsistent with his above-noted self-reporting.

45I place no weight on the OCF-3, completed by Dr. Chan, as it is not supported by the bulk of the medical evidence before me. Significantly, while Dr. Chan diagnoses the applicant with temporomandibular joint disorder, Drs. Minoo, Ko, Greenwald and Ouanounou have not done so. As noted above, all these doctors have not provided a medical opinion of whether the applicant’s dental impairments were from the accident. Thus, I am not satisfied on a balance of probabilities, that the accident was a necessary cause of the applicant’s pain in his lower teeth and jaw.

46Finally, I acknowledge that the applicant argues that he sustained a possible mandible fracture, and relies on the entry from Dr. Greenwald, dated January 7, 2021. However, in this entry, a fracture was ruled out, and once again, Dr. Greenwald opined that the applicant should be referred to an outpatient dentistry as he may have some underlying dental injury.

47In conclusion, I find that the applicant has not established on a balance of probabilities that the accident was a necessary cause of his dental impairments.

Remaining Causation Arguments

48I find that the applicant has not met his onus to establish the accident was a necessary cause of his left ankle impairment. However, I find that the accident was a necessary cause of the applicant’s remaining impairments.

49The applicant argues that he sustained pain in his left leg, feet, right shoulder, neck, mid back, right ankle, and headaches, following this accident.

50The respondent argues that the applicant had a history of ankle and foot trauma prior to the accident and has raised causation concerns on this basis.

51It is unclear from the applicant’s submissions whether he is alleging that he sustained a left or right ankle impairment as a result of the accident.

52For instance, the applicant submits that he sustained right ankle pain following the accident and summarized the records of Safe Space Rehabilitation Centre and Dr. Minoo in support. However, he also summarized an MRI of his left ankle, and argued that his chronic tear in his ankle (not sure if it’s right or left), should remove him from the MIG. In any event, I have considered both the right and left ankle in my analysis.

53Starting with the left ankle, I find that the applicant has not established that the accident was a necessary cause of this impairment.

54First, from the evidence tendered by the applicant, he did not once complain of left ankle pain to his treating practitioners at Safe Space Rehabilitation Centre or Drs. Minoo, Ko and Greenwald. Significantly, the applicant met with these doctors throughout 2021, for his right ankle pain, and foot issues, yet there is no mention of an left ankle impairment following the accident. I place significant weight on these entries, as this evidence is most contemporaneous to the accident.

55Second, the first reference to a left ankle impairment is not until an MRI, which was conducted on March 1, 2023 (two and half years following the accident). In this MRI of the left ankle, I note that the authorizing provider was a Dr. Olatunji Okusanya Olanrewaju. I further acknowledge that the MRI revealed cystic changes, a ganglion cyst and calcaneal enthesophytes. However, there is no indication that these issues are accident-related, nor has the applicant directed me to a medical opinion that demonstrates a connection between these results and the subject accident.

56Finally, the applicant has not produced medical evidence that links his left ankle impairment to the subject accident. As noted above, his treating practitioners at Safe Space Rehabilitation Centre and Drs. Minoo, Ko and Greenwald have all not provided an opinion with respect to this. Significantly, the applicant has not produced the complete records of Dr. Olanrewaju, the physician who requisitioned the MRI for the Tribunal’s review. Without these records, I am unable to determine how this left ankle impairment arose, and whether the accident was a necessary cause of it.

57In short, based on the delay in reporting the left ankle impairment and the lack of medical evidence supporting the connection between the left ankle impairment and the accident, I find that the accident was not a necessary cause of this.

58However, I find that the accident was a necessary cause of the applicant’s right ankle and foot impairments.

59First, unlike his left ankle impairment, there was minimal delay in reporting both his right ankle and foot impairments. Indeed, on January 7, 2021, the applicant reported that he had foot pain following this accident to Dr. Greenwald. Likewise, the applicant reported right ankle pain to Dr. Minoo on January 7, 2021, and he was diagnosed with a soft tissue injury from this accident.

60Second, the applicant has consistently reported to Dr. Minoo, that he has right ankle and foot pain following this accident, which is indicated in the entries dated, January 7, 2021, January 8, 2021, February 3, 2021, April 19, 2021, and April 24, 2021.

61Third, I acknowledge that the respondent relies upon the x-ray of the right ankle and feet, dated January 7, 2021, to support its position that the applicant had a history of pre-existing ankle and foot trauma. I disagree. Upon review of the x-ray, in the history section, it notes “Ankle and foot trauma”. In my interpretation, this relates to the ankle and foot pain/trauma that the applicant complained of to Dr. Minoo following this accident. Dr. Minoo is the physician who referred the applicant for this x-ray and as noted above, the entry of January 7, 2021, indicated that the applicant presented with right ankle and foot pain following this accident, and as a result the x-ray was requested. Finally, I acknowledge the respondent’s position that this x-ray also showed mild osteoarthritis. However, the “but for” test is not that the accident has to be the sole cause of the impairment, but rather it has to be a necessary cause, which I find has been established here.

62At last, it is unclear from the respondent’s submissions, whether it is also arguing causation with respect to the applicant’s remaining injuries to his: left leg, right shoulder, neck, mid back, and headaches. I note that the respondent has conceded in its submissions that it has paid $1,606.66 in medical and rehabilitation benefits available under the MIG. It is unclear to me why the respondent is raising a causation concern with respect to all the applicant’s impairments, when it has paid for benefits under the MIG limits. Under s. 40(1) of the Schedule, the respondent is only required to pay benefits under the MIG if the applicant sustained, as a result of the accident, a minor injury to which the MIG applies.

63Regardless, the applicant self reported to Dr. Ovanounou in April of 2021 (shortly after the accident), that he had left leg pain following this accident, and Dr. M. Pavacic, chiropractor, has opined on April 26, 2021, that the remaining impairments are from this accident. Thus, I am persuaded that the accident was a necessary cause of these impairments.

64To summarize, the accident was not a necessary cause of the applicant’s left ankle impairment. However, the accident was a necessary cause of the applicant’s remaining impairments.

65I find that the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG.

66The applicant argues that he has a chronic tear in his ankle, significant soft tissue injuries, which have led to chronic pain, and psychological impairments. To support this position, he relies upon the records of Dr. Minoo, Dr. Ko, Mackenzie Health, and an MRI of the right ankle, dated May 1, 2022.

67First, the applicant did not refer me to evidence to support his position that he sustained a chronic tear in his ankle. Upon review of the MRI of the right ankle, dated May 1, 2022, there is no diagnosis of a chronic tear. Instead, it was noted that there was increased fluid in the tibialis posterior and flexor digitorum tendons. As a result, the radiologist diagnosed the applicant with: flexor tenosynovitis, but also noted this finding was limited by the applicant’s motion during testing. However, there is no diagnosis of a chronic tear, which the applicant premises his argument on for his removal from the MIG.

68Next, the Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain syndrome or chronic pain that causes functional impairment. Here, the applicant asserts that his soft tissue injuries have developed into chronic pain. On review of the clinical notes, I see sporadic reports of pain to his family physician but no actual diagnosis of chronic pain. While a formal diagnosis of chronic pain or a report from a specialist is not mandatory in order to be removed from the MIG, I find that the evidence of chronic pain is lacking.

69The records of Dr. Minoo demonstrate that the applicant sustained soft tissue injuries from the accident, and no functional limitations were objectively observed by Dr. Minoo. This is limited evidence to find that the applicant should be removed from the MIG on the basis of chronic pain.

70While, in the entry of April 24, 2021, Dr. Minoo diagnosed the applicant with right Achilles Tendonitis, he did not provide an opinion of the cause of this. Nevertheless, it is unclear how this injury would not be minor under s. 3(1) of the Schedule, nor has the applicant provided clarification with respect to this.

71Finally, I inferred from the applicant’s submissions that he was alleging that he has a psychological impairment from the accident, as noted above. Critically, the applicant did not refer me to evidence that supports his argument. Nor, did the applicant tender evidence that supports this position. It is well-settled that submissions are not evidence, and thus the applicant has not established that he should be removed from the MIG on this basis.

72The respondent also requested that I draw an adverse inference from the applicant’s failure to produce his pre-accident records. The applicant did not address why these records were not provided. Although, I am not prepared to make an adverse inference, the lack of medical evidence goes to the weight of the evidence presented. As noted above, the applicant has not established that his accident-related impairments warrant removal from the MIG.

73Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

74As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary. No interest is owing because no benefits are payable.

ORDER

75For the reasons outlined above, I find that