Neutral Citation: 1995 ONICDRG 63
File No. A-008462
ONTARIO INSURANCE COMMISSION
BETWEEN:
PATRICK WHITE
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
The Applicant, Patrick White, was injured in motor vehicle accidents on June 1, 1991 and September 24, 1993. He received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. The Insurer denied certain medical and rehabilitation benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to the medical and rehabilitation benefits claimed under section 6 of the Schedule?
Is the Applicant entitled to a special award under subsection 282(10) of the Act?
Is the Applicant entitled to be reimbursed for his expenses incurred in the arbitration?
The Applicant also claims interest on any amounts owing.
Result:
- The Applicant is entitled to the following medical and rehabilitation benefits, with interest as provided under section 24 of the Schedule:
(a) the cost of treatment by Dr. Rocci and Dr. Lawson, chiropractors: $900.15; (b) his YMCA fees for 1992: $690.15;
(c) transportation expenses of $6,581.26 for travel between his home in Hamilton, and the Whiplash Clinic (in Markham) and the MaxAbilitation clinic (in Scarborough); and
(d) the prescription expenses claimed, on production of the original receipts.
I remain seized of issue (d), in case the parties are unable to agree on the amount owing.
The Applicant is entitled to a special award of $1,000, with interest as provided under subsection 282(10) of the Act.
The Applicant is entitled to be reimbursed for his expenses incurred in the hearing.
Hearing:
The hearing was held in Hamilton, Ontario, on October 12, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant:
Patrick White
Applicant's Representative:
Michael J. Winward Barrister and Solicitor
Insurer's Representative:
Grant E. Black Barrister and Solicitor
Witnesses:
Patrick White, the Applicant
Dr. S.W. Dermer, psychiatrist
Exhibits and other documents before the arbitrator are listed in an appendix to this decision.
Background - facts and issues:
The Applicant is 30 years old. At the time of the first accident, he worked as a vocational counsellor at PATH Employment Services, assisting disabled people to return to work.
On June 1, 1991, the Applicant was rear-ended while stopped at a light. About $5,000 damage was done to his car. He developed neck pain and a headache soon afterwards. Later that day, he drove himself to Hamilton General Hospital, where he was given a muscle relaxant.
As a result of the accident, the Applicant suffered headaches, neck pain, mid-back pain and low-back pain, especially on the left side. X-rays taken on November 20, 1991 showed spasm of the neck muscles (x-ray report, Dr. J. Ford, Exhibit 1, Tab 45, p. 24). He was initially treated by his family doctor, Dr. Brenda Copps, who diagnosed a moderate soft tissue injury to the cervical and lumbar spine. Their relationship broke down when Dr. Copps formed the opinion that the Applicant was exhibiting "illness behaviour". In January 1992, the Applicant left Dr. Copps' practice and began seeing Dr. Anne Boyle.
The Applicant received physiotherapy, massage therapy and chiropractic treatment after the first accident, and he regularly swam and worked out at the YMCA. He was also treated with medication, including analgesics, muscle relaxants, non-steroidal anti-inflammatory medication, and anti-depressants.
The Applicant was off work for six weeks after the first accident. When he returned to work, his workspace was modified to accommodate his disability. However, he continued to complain of neck pain, shoulder pain, back pain and headaches, especially with heavy lifting and prolonged neck flexion. Work stress exacerbated his symptoms. He took a leave from work in January 1992, and returned to work on February 1. Dr. Boyle felt he was still disabled at the time he returned to work.
In the summer of 1992, the Applicant left PATH and began working for Willow Corporation, a telecommunications company, as area supervisor. Three months later, he was promoted to vice president, human resources. His new office was located in Scarborough. He commuted to work from his home in Hamilton.
On September 24, 1993, the Applicant was rear-ended again. This time, about $3,000 damage was done to his car. According to the Applicant, his chest hit the wheel, then he fell back and to the right. He was "out for a while", until the other driver came to the window of his car. He was taken to hospital by ambulance, and was discharged with medication.
He saw Dr. Boyle a couple of days later. On examination, she found right scapular tenderness, left shoulder crepitus, neck spasm, especially on the left, mid-back tenderness, and reduced range of motion in the back. The Applicant also complained of rib pain, headaches, and loss of concentration and mental alertness. Dr. Boyle diagnosed cervical, thoracic and lumbar strain. The Applicant's previous medications were continued (Form 4 report, September 27, 1993, Exhibit 1, Tab 10).
The Applicant has complained of persistent problems of poor memory, poor concentration, confusion, disorientation, delusional perceptions, violent thoughts and emotional instability since the second accident. A neuropsychological assessment was performed in October 1993 (report of John W. Schneider, psychologist, November 29, 1993, Exhibit 1, Tab 15). Tests showed deficits in emotional status, intellectual functioning, memory functioning, and specific cognitive functions. Dr. Schneider concluded that the results showed:
mild impairment of brain functioning, most likely involving right frontal brain regions in particular. However, more generalized, non-specific impairment of brain efficiency and integrity is also implied by comparison of present capacities with prior levels of functioning in areas where these can be confidently estimated.
Dr. Schneider expected the Applicant to improve, especially over the next six to eleven months. He recommended cognitive retraining, "close monitoring of paranoid perceptual tendencies and impaired anger control", and medication.
The Applicant also saw Dr. G. Bartolucci, a psychiatrist, twice in November, 1993. Dr. Bartolucci said,
[o]bviously this man is still troubled by severe cognitive problems and has shown a deterioration both in his level of cognitive competence and in his general emotional and interpersonal adjustment. He shows psychiatric symptoms that should be classified as an anxiety disorder complicated by the beginning of a depressive syndrome; he has symptoms that would also suggest emotional lability and extreme irritability which may be related to the depression.
Dr. Bartolucci recommended a neurological evaluation and psychiatric monitoring.
In late 1993, Dr. Boyle referred the Applicant to Chedoke-McMaster Acquired Brain Injury Services, where he was seen by Dr. A. Finlayson, a psychologist. Dr. Finlayson stated that Dr. Schneider's results ...suggest difficulties with integration, reasoning, problem-solving, visual-spatial organization and memory. There is evidence of mild left-sided motor deficits...
Dr. Finlayson recommended that the Applicant receive counselling and cognitive retraining through Schneider-Dvali Psychological and Rehabilitative Services (Dr. Finlayson's consultation note to Dr. Boyle, February 7, 1994, Exhibit 1, Tab 45, p. 141).
The Applicant saw Irene Dvali, R.N., for counselling between October 1993 and July 1994, when his care was transferred to Dr. M. G. Sumner, a psychiatrist. On initial referral, Dr. Sumner diagnosed organic personality disorder with chronic pain syndrome (consultation note of June 21, 1994, Exhibit 1, Tab 45, pp. 198-9).
The Applicant has also been seen in consultation by Dr. M.P. Rathbone, a neurologist at Henderson General Hospital in Hamilton (consultation note to Dr. Boyle, January 4, 1994, Exhibit 1, Tab 45, pp. 138-140). In a follow-up report, Dr. Rathbone set out the results of his investigations:
The MRI [scan of the brain] was normal. It usually is after such head injuries. However, significantly the SPECT scan of brain did show bilateral parietal-occipital perfusion defects slightly greater on the right compared to the left side. The findings on the right side were secondary to right brain injury and the left side was thought to be contrecoup. Never-the-less it does show quite significant changes and certainly is the anatomical and patho-physiological substraight [sic] for the behavioral changes observed by Schneider-Dvali [consultation note, March 15, 1994, Exhibit 1, Tab 45, p. 148].
The Applicant has not been able to return to work since the second accident.
The issues in dispute in this case were set out in a schedule prepared by Applicant's counsel. At the outset of the hearing, the parties informed me that they had resolved a number of these issues. After the hearing, Insurer's counsel advised that the parties had narrowed the issues further (Mr. Black's letter of October 21, 1994, addressed to Mr. Winward and me).
At the hearing, the Applicant moved to add a claim for occupational therapy. I ruled that this was not an issue before me, as it had not been dealt with at mediation, and indeed the Insurer had not had 30 days to consider the claim. However, I allowed the Applicant to update his medication claim, since the additional medications being claimed are the same ones discussed at mediation.
Entitlement to medical and rehabilitation benefits:
Under subsection 6(1) of the Schedule, an insured person is entitled to be reimbursed for "all reasonable expenses resulting from the accident" as enumerated in clauses (a) - (f). Subsection 6(4) permits the Insurer to require the insured person to submit a doctor's note before the expense is paid. Subsection 6(7) provides that certain claims must be paid pending resolution of any dispute about them.
Disputed expenses relating to the first accident:
(i) Chiropractic treatment
The Applicant claims reimbursement of $525.15 charged by Dr. Rocci for chiropractic treatment between November 4, 1992 and July 24, 1993, and $375 charged by Dr. Lawson for chiropractic treatment between September 13 and 24, 1993. He relies on Dr. Boyle's recommendations that he receive chiropractic treatment2.
The Insurer disputed Dr. Boyle's recommendations because her reports were prepared after the Applicant began receiving chiropractic treatment, and because she is not a specialist. In my view, nothing in the Schedule permits an insurer to refuse payment for treatment on the sole basis that the medical certificate referred to under subsection 6(4) was obtained after the applicant began treatment. Nor does subsection 6(4) require a certificate from a specialist rather than a family doctor.
The Insurer also relies on the report of Dr. A.M. Porte, dated July 16, 1992 (Exhibit 1, Tab 6). Dr. Porte is an orthopaedic surgeon who examined the Applicant at the Insurer's request. Dr. Porte felt that a further three months of chiropractic therapy "would in all likelihood be beneficial" for the Applicant, but he would not recommend more than three months' therapy. Dr. Porte opined that although the Applicant "may have some residual discomfort...he is capable of performing a substantial portion of the essential tasks associated with his work as a counsellor".
Subsection 23(2) of the Schedule allows an insurer to require that the applicant be examined by a doctor chosen by the insurer only "[i]n respect of" weekly benefits claims, and not in respect of claims for medical and rehabilitation benefits. For this reason, the focus of Dr. Porte's report was whether the Applicant is substantially disabled from his pre-accident job. The issue before me is whether the medical and rehabilitation expenses claimed by the Applicant are "reasonable expenses resulting from the accident". An insured person "who sustains physical, psychological or mental injury as a result of an accident" is entitled to medical and rehabilitation benefits even if he is able to return to his pre-accident work. I accept that the Applicant suffered persistent neck pain, back pain and headaches after the first accident and ongoing after the second accident. I found his complaints to be credible, and his testimony was consistent with his ongoing complaints to his doctors. Moreover, Dr. Porte did not see the Applicant between July 1992 and March 1994, when he examined him again. In his second report, Dr. Porte did not address the Applicant's need for ongoing chiropractic treatment beyond the three-month period he had recommended earlier (March 28, 1994, Exhibit 4).
In these circumstances, I prefer to rely on the evidence of Dr. Boyle. I find that the Applicant required chiropractic care because of the accident. I do not find the treatment or fees to be exorbitant. This expense is allowed.
(ii) YMCA fees
The Applicant seeks reimbursement of his YMCA membership fees for 1992: $690.15 (Exhibit 2, Tab 7). According to the Applicant, he joined the Y after the first accident at the suggestion of his physiotherapist and Dr. Boyle. While attending the Y's facilities, the Applicant swam, did weight exercises, and made use of the hot tub.
Dr. Boyle recommended the YMCA membership for purposes of continuing physical therapy (note of February 16, 1994, Exhibit 1, Tab 20). Dr. Copps had also encouraged the Applicant to continue with his swimming (clinical notes, July 23, 1991). In his March 28, 1994 report, Dr. Porte stated:
it would be prudent and beneficial for [the Applicant] to maintain his muscle strength and endurance and general aerobic conditioning.
Considering the opinions of Dr. Copps, Dr. Boyle and Dr. Porte, I have no difficulty accepting that the Applicant reasonably required an exercise program as a result of injuries sustained in the first accident.
The Applicant swam regularly before the accident, and the medical reports indicate that he may have used the YMCA facilities then. The Insurer submitted that the Applicant should not be reimbursed for post-accident YMCA fees if he used the same facilities before the accident.
The Applicant testified that he does not remember being a member of the Y before the accident; he thinks he swam at the Ryerson Recreational Centre, a municipal facility. The annual membership fee for that facility is about $40. The Applicant testified that he switched to the Y after the accident because it offered an exercise room, weight equipment, and a hot tub, facilities which were not available at Ryerson. He testified that he found the program beneficial.
I am prepared to accept that the Applicant may not remember when he started using the Y facilities. In any event, it is my view that he is entitled to be reimbursed for the cost of a rehabilitation program, even if he used the same facilities recreationally before the accident.
The Insurer also submitted that this fee should not be paid because the Applicant stopped using the YMCA facility after he began working in Scarborough in the fall of 1992. I heard no evidence whether a rebate of the fee would have been available.
The Applicant is entitled to be reimbursed for this expense.
Disputed expenses relating to the second accident:
(iii) Psychological treatment
The Applicant claims $628.62 for Dr. Gottfried's fees for treatment in 1994. He was referred to Dr. Gottfried, a psychologist, by Dr. Ko3. Dr. Ko suspected "somatic amplification" and recommended that the Applicant see Dr. Gottfried for post-traumatic stress after his cognitive problems were sorted out.
The Insurer contends that it should not be required to pay for Dr. Gottfried's fees, when it has already paid the fees of Schneider-Dvali, which was providing the same sort of treatment at the same time.
The Applicant testified that Dr. Gottfried treated him for pain management. He said that Irene Dvali counselled him about his head injury after the second accident, although she and John Schneider had provided relaxation therapy and stress management after the first accident.
The Applicant was referred to Schneider-Dvali in September 1991 by his occupational therapist at St. Joseph's Hospital. In his February 17, 1992 report, Dr. Schneider, a psychologist, described the treatment as consisting "largely of relaxation training, cognitive-behavioural therapy aimed at stress reduction and more adaptive coping with stresses, and counselling regarding possible job change." In July 1992, Dr. Schneider closed the file, noting that when he last saw him on March 12, the Applicant "appeared to be largely recovered from the emotional effects of his motor vehicle accident ... and also reported considerable improvement in his physical symptoms".
The Applicant returned to the Schneider-Dvali clinic after the second accident. A neuropsychological assessment showed cognitive deficits. The Applicant was referred to Dr. G. Bartolucci, a psychiatrist, but did not see him for treatment beyond the "initial medication review". Beginning in March 1994, the Applicant undertook a cognitive remediation program with John Sullivan, a certified psychological associate with Schneider-Dvali. He also began seeing Irene Dvali, R.N. In her report of July 8, 1994, she said, "[t]reatment focus has included supportive therapy, reality contact, and structuring and organizing of his daily routine to minimize confusion and cognitive difficulties."
The Schneider-Dvali reports support the Applicant's claim that his treatment at that clinic after the second accident focused on his head injury, rather than pain management. However, I received no evidence about the nature of the treatment provided by Dr. Gottfried apart from the very brief testimony of the Applicant. In the absence of corroborating evidence about Dr. Gottfried's treatment, preferably from Dr. Gottfried himself, I am not satisfied that his treatment fees are a reasonable expense resulting from the accident.
(iv) Travel to out-of-town clinics
The Applicant claims reimbursement for travel between his home, in Hamilton, and the Whiplash Rehabilitation Clinic, in Scarborough, between September 30 and December 4, 1993 (39 trips x 190 km/trip = 7,410 km). He also claims reimbursement for travel to the MaxAbilitation Program, in Markham, between November 3, 1993 and July 5, 1994 (89 trips x 212 km/trip = 18,868 km).
The Applicant initially attended at MaxAbilitation for a six week rehabilitation program. The Applicant's therapy lasted three hours per day, and included stretching exercises, hydrotherapy, weight and cardiovascular exercise, massage and chiropractic. On completion of the program, Celia Chung, a kinesiologist with the clinic, reported that the Applicant had "very good attendance", was "cooperative" and "motivated", and had shown significant improvements. She also noted that the Applicant had reported that the program had given him some pain relief and had allowed him to become more active. She recommended that he continue an exercise program (Follow-up report, February 23, 1994, Exhibit 1, Tab 45, pp. 142-6).
The Applicant continued to attend the program three to four times a week, as well as doing home exercises. In May, he reported that his pain was four out of ten. Dr. Ko stated that "[h]e still has some residual discomfort in the left side of the neck and low back but he is certainly more functional and is able to sit and stand for longer periods of time and walk comfortably." Dr. Ko recommended a further six weeks of supervised aquatic training. According to Dr. Ko, "Supervision remains essential as he still has significant cognitive impairments". Following this period, Dr. Ko felt that Mr. White should find a community program4.
Dr. Boyle, the Applicant's family doctor, recommended these clinics because they were multi-disciplinary, and offered "therapy including massage, chiropractic, physio, acupuncture, kinesiology, as well as aqua therapy, psychiatric and nutritional programs". She suggested that he should continue with the Toronto clinics, despite the drive, because he had been treated there before, had made good progress, and was comfortable with the staff. She felt this was especially important because of the cognitive and psychological problems the Applicant suffered after the second accident5.
The Applicant's treatment at the MaxAbilitation Clinic was also recommended by chiropractor Dr. Lawson, and by Dr. Ko, a physiatrist to whom he was referred by Dr. Boyle (consultation note to Dr. Boyle, dated Dec. 15, 1993, Exhibit 1, Tab 36). As Drs. Ko and Lawson are involved in the clinic, I place less weight on their recommendations.
Dr. Porte did not think the Applicant needed "supervised exercises or massage therapy ... for ongoing physical rehabilitation". However, as stated earlier, Dr. Porte did say that "it would be prudent and beneficial for [the Applicant] to maintain his muscle strength and endurance and general aerobic conditioning" through a regular self-directed exercise program.
The Insurer also relied on the evidence of Dr. S. Dermer, a psychiatrist who works as a consultant to the Traffic Injury Rehabilitation Clinic in Hamilton (TIRC pamphlet and Dr. Dermer's CV, Exhibit 6). Dr. Dermer testified that an injured person suffering from chronic pain or a head injury should not have to drive to another city for treatment. This could be unsafe and would make coordination of treatment difficult. Dr. Dermer admitted that he had never seen the Applicant and had first been consulted on the file just a couple of weeks before the hearing. He was unable to say whether the drive was inadvisable for this injured person or whether there was any difficulty in coordinating the Applicant's treatment.
Dr. Dermer also testified that the services offered by the MaxAbilitation Program were available at his own clinic, and at other Hamilton clinics - for example, the Wellington Wellness Clinic (pamphlet, Exhibit 7).
On cross-examination, the Applicant admitted that Dr. Boyle's letters recommending the Toronto clinics were written after the fact, and that he had initiated the discussion. Again, I find that neither of these facts invalidates a medical certificate provided under subsection 6(4). I adopt the comments of Senior Arbitrator Frederika Rotter in Douglas R. G. Williams and Jevco Insurance Company, May 6, 1992, OIC File No. A-000112:
... the Applicant has the right to attend at and seek treatment from the practitioner of his choice, so long as the resultant travel expenses are not clearly exorbitant or excessive.
I have some concern about the wisdom of travelling an hour each way to attend a chiropractic clinic. I am also concerned about the travel cost borne by the Insurer. However, the Applicant's treatments at the Whiplash Rehabilitation Clinic and the MaxAbilitation Clinic were approved by his family doctor. The Insurer does not appear to have proposed a suitable local clinic when it notified the Applicant of its decision to pay only 28 km per trip (G.C. Hamilton's letter of Dec. 6, 1993, and W.E. Cawthorn's letter of July 11, 1994). Moreover, I was presented with no evidence or submissions in support of the 28 km limit proposed by the Insurer. In these circumstances, I find that the Applicant is entitled to be reimbursed for these travel costs.
The total amount claimed by the Applicant is $7,620.62 (128 trips totalling 26,278 km). The Insurer reimbursed the Applicant $1,039.36 (28 km per trip). The Insurer's rate of $.29 per km is not in dispute. The Applicant is entitled to an additional $6,581.26 for transportation expenses.
(vi) Medications
According to Mr. Black's uncontroverted representations in his letter of October 21, 1994, Pilot has not paid these prescription expenses ($425.45) because the Applicant has not submitted the original receipts.
Photocopies of the receipts were filed at the hearing (Exhibit 2, Tab 15). The medications used were Flexeril and Norflex (muscle relaxants, prescribed by Dr. Boyle), Rivotril (an anticonvulsant), Luvox (an anti-depressant, prescribed by Dr. Sumner), and Pain Away spray.
In his submissions, Insurer's counsel questioned whether the medications were prescribed with reasonable frequency. However, no expert opinion was offered in support of this submission. I find that the claimed medication expenses were reasonable expenses resulting from the accident. However, the Insurer is entitled to require the original receipts before paying.
These expenses are payable once the Applicant provides the original receipts. I remain seized of this issue in case the parties are unable to agree on the amount owing, if any.
Special award:
The Applicant seeks a special award under subsection 282(10) of the Act on the ground that the Insurer unreasonably withheld or denied the medical and rehabilitation benefits claimed.
Subsection 282(10) provides as follows:
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Subsection 6(7) of the Schedule states that the insurer must "pay now, dispute later", with respect to certain medical and rehabilitation benefits:
(7) In case of a dispute concerning an expense described in clause 1(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute.
This provision applies to claims for chiropractic and physiotherapy treatment - subsection 6(1)(a) - and related travel expenses - subsection 6(1)(d).
The Insurer submitted that subsection 6(7) does not apply until the Applicant provides the certificate described under subsection 6(4). Although no such precondition is found in the words of subsection 6(7), I accept that an insurer is entitled to require reasonable supporting documentation before paying a claim covered by subsection 6(7). What is "reasonable" documentation in any given case must take account of the legislative intent that disputes about entitlement should not prevent insured persons from getting treatment. In this case, the Applicant's family doctor recommended the chiropractic and physiotherapy treatments undertaken by the Applicant. In disputing these claims, the Insurer relied on Dr. Porte's opinion. In my view, an insurer is not entitled to ignore the provisions of subsection 6(7) in reliance on a medical examination required under subsection 23(2).
The Insurer raised legitimate questions about the Applicant's chiropractic, physiotherapy and related travel claims. If not for section 6(7), I would not have found that the Insurer unreasonably denied these benefits. However, subsection 6(7) reflects the legislative object of securing early treatment and rehabilitation for injured persons. The importance of rehabilitation in the statutory accident benefits scheme has been noted in many previous arbitration decisions. Arbitrators have often approved the following comments of Arbitrator K. J. Palmer in S.S. Gaba and Allstate Insurance Company of Canada, August 21, 1992, OIC File No. A-000624, with which I concur:
The question of who has the onus of proof of reasonableness was not directly addressed by either counsel. It would appear to be implicit that this task is required to be performed by the Applicant. It is my view that once a prima facie case has been made for the reasonableness of the account, the secondary onus shifts to the Insurer to disprove the reasonableness. It is not my sense of the Schedule that the legislature sought to impose a heavy accounting onus on injured persons.
It is my view that, where such questions of rehabilitation arise, insurers and injured persons should work co-operatively to achieve a consensus as to the appropriate rehabilitation, occupational counselling and training program that an injured person should pursue. Automobile insurers in this province have developed expertise in evaluating the great number of such programs offered by different health care professionals. The family physician, orthopaedic specialist, other health professionals, solicitor, injured person and insurer, all working together, should be able to achieve the goal of rehabilitating the injured person to a pre-accident level of function. In cases where an injured person continues to complain of pain, although independent orthopaedic surgeons cannot find objective signs of impairment, the insurer should be among the first to assist its insured to pursue psychological, rehabilitative or occupational counselling.
I am prepared to accept that an insurer may not be required to pay medical and rehabilitation benefits pending dispute where, for example, the insurer raises a serious question of fraud, or where the claim is clearly unreasonable. No question of fraud arises in this case, and the Applicant's claims were not exorbitant. I find that the Insurer's denial of these benefits was unreasonable.
The Applicant's claims for YMCA fees and prescription expenses are not governed by section 6(7). I find that the Insurer did not act unreasonably in denying these benefits.
The claims to which section 6(7) applies total approximately $7,500. The Insurer's conduct in this case was not the most egregious. The Insurer acted unreasonably, but not capriciously or maliciously. In addition, the Insurer has paid the Applicant's other claims in a more timely fashion.
The Insurer is ordered to pay the Applicant a special award of $1,000, with interest, under section 282(10) of the Act.
Expenses:
The Applicant is entitled to be reimbursed for his expenses incurred in the proceeding, in accordance with section 282(11) of the Insurance Act. I remain seized of the issue of expenses, in the event the parties are unable to agree on the amount owing.
Order:
- The Applicant is entitled to the following medical and rehabilitation benefits, with interest as provided under section 24 of the Schedule:
(a) the cost of treatment by Dr. Rocci and Dr. Lawson, chiropractors: $900.15;
(b) his YMCA fees for 1992: $690.15;
(c) transportation expenses of $6,581.26 for travel between his home in Hamilton, and the Whiplash Clinic (in Markham) and the MaxAbilitation clinic (in Scarborough); and
(d) the prescription expenses claimed, on production of the original receipts.
I will remain seized of issue (d), in case the parties are unable to agree on the amount owing.
The Applicant is entitled to a special award of $1,000, with interest as provided under subsection 282(10) of the Act.
The Applicant is entitled to be reimbursed for his expenses incurred in the hearing.
June 6, 1995
Nancy Makepeace Arbitrator
Date
APPENDIX A
Exhibits:
Exhibit 1 Applicant's Medical Brief
Exhibit 2 Supplementary Medical Rehabilitation Care and Benefits Brief
Exhibit 3 Curricula Vitae of Drs. Boyle, Ko, Schneider, and Sullivan
Exhibit 4 Letter from Dr. Porte to Pilot, dated March 28, 1994
Exhibit 5 Curriculum Vitae of Dr. Porte
Exhibit 6 Curriculum Vitae of Dr. Dermer
Exhibit 7 The Wellington Wellness Clinic pamphlet
Other Documents Before the Arbitrator:
Report of Mediator, dated March 21, 1994
Application for Appointment of an Arbitrator, dated April 1994
Response by Insurer, dated May 31, 1994
Pre-hearing report, dated July 8, 1994
Footnotes
- Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
- Standard form (Form 4) report, June 8, 1992, Exhibit 1, Tab 4; Form 4 report, September 27, 1993, Exhibit 1, Tab 45, pp. 66-7; Form 4 report, October 13, 1993, Exhibit 1, Tab 45, pp. 68-9; report to the Insurer, November 23, 1993, Exhibit 1, Tab 14; note, February 16, 1994, Exhibit 1, Tab 20; medical-legal report, June 24, 1994, Exhibit 1, Tab 35.
- Consult note to Dr. Boyle, December 15, 1993, Exhibit 1, Tab 36; referral note and invoice, Exhibit 2, Tab 13.
- Report of Sandy Richardson, head kinesiologist, May 9, 1994 to Dr. Boyle, Exhibit 1, Tab 45, p. 170; Report of Dr. Ko to Dr. Boyle, May 10, 1994, Exhibit 1, Tab 45, pp. 171-2.
- Dr. Boyle's letters to the Insurer, dated November 23, 1993, and February 16, 1994, and her letter to the Applicant's counsel, dated June 24, 1994, Exhibit 1, Tabs 14, 34 and 35.