2017 ONSC 5885, 2017 ONSC 5885

CITATION : Melo v. Northbridge Personal Insurance Corporation, 2017 ONSC 5885 DIVISIONAL COURT FILE NO.: 138/17 DATE: 20171010 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: MANUEL MELO , Appellant - and - NORTHBRIDGE PERSONAL INSURANCE CORPORATION , Respondent BEFORE: Lederman, Kiteley and Croll JJ. COUNSEL: M. Benzaquen , for the Applicant (Appellant) S. Sharma , for the Respondent (Respondent) HEARD: September 12, 2017 CROLL J. ENDORSEMENT Introduction [ 1 ] Manuel Melo (the “Appellant”) appeals the decision of Adjudicator C.

Sewrattan (the “Adjudicator”) of the License Appeal Tribunal (the “Tribunal”) dated February 14, 2017. The Adjudicator found that the Appellant was not entitled to income replacement benefits in the amount of $389.11 per week from January 28, 2016 to the date of his decision. Background Facts [ 2 ] The Appellant was involved in a motor vehicle accident on August 28, 2015. At the time of the accident, the Appellant was working as a maintenance worker for M. C. Janitorial Services.

His duties included mopping, vacuuming, dusting, collecting and sweeping garbage. [ 3 ] The Appellant applied for statutory accident benefits from his own insurance company, Northbridge Personal Insurance Corporation (the “Respondent”). The relevant provision of the Statutory Accident Benefits

Schedule – effective after September 1, 2010 , O. Reg. 34/10, s. 5(1) (i) (the “

Schedule ”) provides as follows: The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions: The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. [ 4 ] The Respondent funded monthly income replacement benefits of $389.11 from September 5, 2015 to January 28, 2016.

At that time, the Respondent took the position that the Appellant no longer suffered from an impairment that caused a substantial inability to perform his pre-accident employment duties. The Appellant disputed the Respondent’s denial of benefits and filed an Application by an Injured Person for Auto Insurance Dispute Resolution through the Tribunal. [ 5 ] The hearing was in writing. The Adjudicator considered the material presented, which included: i. A Disability Certificate, dated September 29, 2015, completed by the Appellant’s family doctor, Dr.

Ullah, who concluded that the Appellant could return to work to perform very light duties that did not involve physical work. ii. A Functional Abilities Evaluation Report, prepared by Mr. Polygenis, Registered Physiotherapist, Certified Impairment Rater and Certified Functional Evaluator, dated January 11, 20l6. iii. A Physical Demands Analysis Report, prepared by Mr. Polygenis, dated January 11, 2016.

iv. A Physiatry Assessment Report, dated January 11, 2016, prepared by Dr. Oshidari, a specialist in physical medicine and rehabilitation. In that report, Dr. Oshidari considered the two reports prepared by Mr. Polygenis and concluded that the Appellant did not suffer from an impairment that caused a substantial inability to perform the essential tasks of his pre-accident employment. v. A CT brain scan report, dated March 20, 2016. This report indicated that “atrophy white matter changes in the basal ganglia may be a result of microangiopathic changes….”. vi.

A Disability Certificate, dated June 6, 2016 in which Dr. Ullah concluded that the Appellant did suffer from an impairment that caused a substantial inability to perform the essential tasks of his pre-accident employment. vii. A Physiatry Addendum Report, dated June 27, 2016 prepared by Dr. Oshidari. Dr. Oshidari reviewed Dr. Ullah’s clinical notes and the CT scan, and did not find that the CT scan revealed any abnormality that could be causally linked to the accident. viii. A Physiatry Assessment Report, dated September 6, 2016, prepared by Dr. Wong, a specialist in physical medicine and rehabilitation.

In that report, Dr. Wong concluded that the Appellant suffered from, among other things, chronic pain syndrome, and as such, sustained an impairment that caused a substantial inability to perform the essential tasks of his pre-accident employment. ix. A second Physiatry Addendum Report, dated December 13, 2016 prepared by Dr. Oshidari. Dr. Oshidari indicated that his January 2016 opinion did not change after considering Dr. Wong’s report.

Analysis [ 6 ] Pursuant to s. 11(6) of the License Appeal Tribunal Act , S.O. 1999, c. 12 , an appeal from a decision of the Tribunal relating to a matter under the Insurance Act , R.S.O. 1990, c. I.8 may be made on a question of law only. [ 7 ] The standard of review to be applied is reasonableness. See Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293, at para. 34 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at paras. 37-38 ; Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at paras. 47-49 , 54-56; and 2193145 Ontario Inc. o/a Boston Pizza v.

Registrar, Alcohol and Gaming , 2016 ONSC 3553 at para. 27 . [ 8 ] The Adjudicator identified the two-part test to determine if the Appellant suffered from an impairment that caused a substantial inability to perform the essential tasks of his pre-accident employment: 1) what are the essential tasks of the Appellant’s employment; and 2) is the Appellant substantially unable to perform those essential tasks. [ 9 ] In applying this test, the Adjudicator gave little weight to the initial disability certificate completed by Dr. Ullah, finding that Dr.

Ullah did not have a thorough understanding of the tasks involved in the Appellant’s employment and daily routine. He did not reference the second disability certificate completed by Dr. Ullah in his reasons. [ 10 ] The Appellant attributed the concussion, headaches and dizziness that he has suffered to the changes in the basal ganglia shown on the CT scan. The Adjudicator was unable to conclude that the changes in the basal ganglia were caused by the accident, and as a result, he assigned no weight to the CT scan. [ 11 ] Significantly, the Adjudicator rejected the report of Dr.

Wong, and in particular, his diagnosis that the Appellant suffers from chronic pain. The Adjudicator stated the following at paragraph 24 of his decision: “I do not accept the diagnoses or conclusions provided in Dr. Wong’s report. The report fails to adequately link Dr. Wong’s tests to his diagnoses and conclusions. The absence of such a link prevents me from assessing the soundness of Dr. Wong’s report.” [ 12 ] Dr. Wong found stiffness, tenderness, limited range of motion and pain. It is the Appellant’s position that these symptoms are the hallmarks of chronic pain, and that Dr.

Wong is an expert on chronic pain syndrome. For these reasons, the Appellant submits that it was an error of law to reject Dr. Wong’s opinion that the Appellant suffers from chronic pain. [ 13 ] Instead of the opinion of Dr. Wong, the Adjudicator relied on the physiatrist assessment report prepared by another specialist in physical medicine and rehabilitation, Dr. Oshidari. In his report, dated January 11, 2016, Dr. Oshidari opined that the Appellant did not suffer from an impairment that caused a substantial inability to perform the essential tasks of his pre-accident employment. Dr.

Oshidari’s report references both the functional abilities evaluation and the physical demands assessment prepared by Mr. Polygenis, who was unable to conclude that the Appellant required a physical or medical restriction with respect to returning to his pre-accident employment. In his reasons, the Adjudicator also referred to the Polygenis reports. The Adjudicator was satisfied that Dr. Oshidari linked the medical tests he conducted on the Appellant to his conclusions regarding employment, a critical nexus that he found missing from Dr. Wong’s report. [ 14 ] Dr.

Oshidari’s second Physiatry Addendum Report dated December 13, 2016, was completed after he reviewed the Physiatry Assessment Report prepared by Dr. Wong. In this second Addendum, Dr. Oshidari stated that he could not make a diagnosis of chronic pain syndrome. It was his opinion that all the physical symptoms that Dr. Wong discussed in his report were soft tissue injury with sprain/strain and myofascial pain. [ 15 ] Dr. Wong does not describe himself as an expert in chronic pain syndrome in his Physiatry Assessment Report. However, the Appellant submits that Dr.

Wong is an expert as he has been qualified as such in another case. See Palmer v Beach , 2016 ONSC 7782, at para. 21(b) . That qualification is not binding on the Adjudicator. [ 16 ] The Adjudicator reviewed the evidence and explained why he did not accept the report of Dr. Wong and why he preferred the report of Dr. Oshidari. As indicated, the Adjudicator was not satisfied as to how Dr. Wong reached the bottom line conclusion that the Appellant was substantially unable to perform his pre-accident tasks of employment.

The Adjudicator further determined that he was not provided with any other credible report that indicated that the Appellant suffered from an impairment that caused a substantial inability to

perform the essential tasks of his pre-accident employment. [ 17 ] The Adjudicator cited the correct legal test to prove entitlement to an income replacement benefit, and correctly identified and conducted the comparative exercise that section 5(1) of the

Schedule requires, namely to compare the essential tasks of an insured’s pre- accident employment with his post-accident ability to perform them. In particular, at paragraph 19 of his reasons, the Adjudicator reviewed the essential tasks and at paragraph 29 concluded that the “sprains and strains” suffered as a result of the accident did not render the Appellant substantially unable to perform those tasks. [ 18 ] The Adjudicator weighed the evidence, applied the proper standard of proof, and provided reasons for his findings, which were well grounded in the material before him.

His exercise of weighing the evidence and preferring some evidence over other evidence does not amount to question of law only. It is also well established that the Adjudicator was not obliged in his reasons to refer to all the evidence put before him, and as such, his failure to refer specifically to the second disability certificate of Dr. Ullah is not determinative. [ 19 ] The Appellant has failed to establish an error of law. The Adjudicator’s decision was reasonable as it was within the range of possible outcomes. [ 20 ] For these reasons, the appeal is dismissed.

Costs [ 21 ] Costs should be fixed at $5,000, as agreed by counsel, payable by the Appellant to the Respondent within the time period asked for by the Appellant, namely 150 days. _______________________________ Croll J. I agree _______________________________ Lederman J. I agree _______________________________ Kiteley J. Date: