Neutral Citation: 2000 ONFSCDRS 51

FSCO A98–000816

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VLADO ARGIROVSKI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

K. Julaine Palmer

Heard:

January 10, 11, 12 and 13, 2000 at the Financial Services Commission of Ontario in Toronto.

Appearances:

Jadranka Cavrak for Mr. Argirovski

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

Vlado Argirovski was injured in a motor vehicle accident on July 21, 1996. He applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate paid weekly income replacement benefits to Mr. Argirovski until November 30, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Argirovski applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Argirovski entitled to receive a weekly income replacement benefit from December 1, 1996, and ongoing, pursuant to section 7 of the Schedule on the basis that he suffers a substantial inability to perform the essential tasks of his employment?

2. Is Mr. Argirovski entitled to $3,716 in supplementary medical expenses for chiropractic and massage treatment, and $3,500 for psychological assessment and treatment claimed pursuant to paragraphs 36(1)(b) and (h) of the Schedule?

3. Is Mr. Argirovski entitled to $3,171 as additional expenses reasonably incurred for housekeeping services, under section 55 of the Schedule?

4. Is Allstate liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, because it unreasonably withheld or delayed payments to Mr. Argirovski?

5. Is Allstate liable to pay Mr. Argirovski's expenses of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Mr. Argirovski also claims interest on any amounts owing.

Result:

1. Allstate Insurance Company of Canada shall pay Vlado Argirovski a weekly income replacement benefit from December 1, 1996, ongoing, pursuant to section 7 of the Schedule until the terms of Part VI of the Schedule relating to loss of earning capacity benefits have been fulfilled, plus interest according to section 68 of the Schedule.

2. Allstate Insurance Company of Canada shall pay Vlado Argirovski $3,716 in supplementary medical expenses for chiropractic and massage treatment claimed pursuant to paragraphs 36(1)(b) and (h) of the Schedule, plus interest from May 21, 1997 at 2 percent per month compounded monthly, according to section 68 of the Schedule.

3. Allstate Insurance Company of Canada shall pay Vlado Argirovski $3,500 in supplementary medical expenses for psychological treatment provided by Dr. Ricardo Harris, pursuant to paragraph 36(1)(b) of the Schedule, plus interest as provided in paragraph 39.1(1) and section 68 of the Schedule.

4. Mr. Argirovski is not entitled to $3,171 claimed for housekeeping services.

5. Allstate Insurance Company of Canada shall pay Vlado Argirovski a special award of 25 percent of the amount to which Mr. Argirovski is entitled for psychological treatment, together with interest on all amounts owing (including unpaid interest) at 2 percent per month, compounded monthly, from May 1997, as the benefits became payable under the Schedule, pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended.

6. The issue of expenses is not yet determined.

EVIDENCE AND ANALYSIS:

Summary of the Dispute:

On July 21, 1996 Vlado Argirovski, then age 40, was injured while operating his pickup truck in Blyth, Ontario. His vehicle had pulled out from a side street when it was hit, on the driver's side, by a car travelling on the through street. After the accident, Mr. Argirovski was taken by ambulance to hospital, treated, and released about two hours later. Mr. Argirovski claims to have suffered injuries to his head, neck, shoulders, low back and left leg in the accident. He also says he has suffered a psychological impairment as a result of the accident. Mr. Argirovski says that as a result of his injuries he has not been able to return to his self-employment as a cleaner and handyman.

Mr. Argirovski underwent surgery in August 1999 as a result of a disc herniation in his low back. He says that the disc herniation was caused by this accident.

Mr. Argirovki's dispute is complicated by the fact that he was involved in another accident on January 24, 1997. At that time he was a passenger in a friend's car exiting a parking lot. Their vehicle collided with another vehicle exiting the parking lot across the street. At the arbitration Mr. Argirovski testified that this was a minor collision that caused him no injury. By the date of that accident, Mr. Argirovski was no longer insured with Allstate. He has not made a claim against any insurance company for statutory accident benefits arising from that accident. Allstate asserts that Mr. Argirovski has presented no substantiating information about his activities as a handyman. Allstate submits that no causal relationship between the disc herniation and the motor vehicle accident of July 1996 has been established. Allstate relies on the fact that just prior to the January 1997 accident, Mr. Argirovski's chiropractor had discharged him from treatment. Allstate alleges that it has paid for all chiropractic treatment arising from the July 1996 accident and that the claim for $3,716 in treatment relates to treatment after the January 1997 accident. Allstate submits that Mr. Argirovski is attempting to relate his post-January 1997 difficulties to the 1996 accident, because the January 1997 accident falls within the Bill 59 regime, which provides less generous benefits. Allstate also submits that the claim for housekeeping payments to Karen Siegel, who lived with Mr. Argirovski both before and after the July 1996 accident, is problematic. Allstate asserts that it has paid $600 in housekeeping for the first 12 weeks after the accident and no further housekeeping payments are warranted.

Background:

In 1992 Mr. Argirovski was laid off from his employment as a maintenance worker at a private college. After the layoff, he decided to open his own business and registered his business name, Handsome Cleaning Company, in 1994. He testified he worked at commercial cleaning, painting, moving, and "anywhere I could make money." He testified he sometimes worked for free to attract more jobs. He stated that he worked two or three days each week and sometimes had no work for a week. He obtained work through personal referrals. He has no records from his business and, generally, worked on a cash basis. Mr. Argirovski began living with Karen Siegel in 1994, about two years before the accident. Ms. Siegel testified that Mr. Argirovski worked about 15 to 20 hours per week, mostly in the evening.

Mr. Argirovski testified that at the time of the accident, he was stopped at a stop sign in Blyth. He saw nothing approaching and pulled out, but was hit on the driver's side of his pickup truck. He stated that he hit his head both on the driver's window and on the back window of his pickup truck. He felt pain in his back and legs. He was taken by ambulance to hospital, examined, x-rayed and released. His 1980 Dodge truck was considered a total loss and he returned by train to his home in Toronto a couple of days after the accident.

A close examination of the early reports of Mr. Argirovski's complaints after the accident are important when determining the cause of his ongoing back and leg pain. Records from the ambulance, the emergency department at the hospital, and his first visits to the doctor and chiropractor were presented at the hearing.

The ambulance call report states that the attendants found Mr. Argirovski sitting in his vehicle, conscious and alert, complaining of cervical and back pain, which increased on palpation. He told them he had not lost consciousness but felt "a little dizzy" and that he felt "pins and needles" down the left side of his body. The record shows that Mr. Argirovski told them he hit his head on the side window. Wingham Hospital records indicate that Mr. Argirovski was complaining of soreness in his left shoulder, ankle and lower back. The attending physician also recorded Mr. Argirovski's complaints were all on the left side. The physician recorded that there was no history of a head injury, but Mr. Argirovski complained of neck discomfort. He ordered x-rays of Mr. Argirovski's cervical spine, left shoulder, chest, pelvis and left hip, left femur and left ankle, none of which reported any evidence of bony injury.

Five days after the accident, on July 26, 1996, Mr. Argirovski was examined by Dr. Liuba Grossman, a family practitioner. Previously, Mr. Argirovski had been a patient of another family practitioner in a different part of the city. Mr. Argirovski testified that a friend of Karen Siegel's recommended Dr. Grossman to him. The friend was employed in Dr. Grossman's office. Karen Siegel testified that she thought that Mr. Argirovski had telephoned the office of his former family doctor after they returned to Toronto and learned his doctor was on vacation.

Dr. Grossman recorded in her notes of Mr. Argirovski's examination that he complained to her of feeling "spaced out" and "not himself." He also complained of headache, left neck, left ear, and left temple pain, chest pain around his rib cage, and left shoulder pain. Dr. Grossman confirmed on her examination that Mr. Argirovski was tender in his neck muscles. His range of movement was decreased in all directions. She recorded Mr. Argirovski's left-sided and right-sided neck pain, left face pain, tender left shoulder blade, pain on bending and left ankle pain. She concluded Mr. Argirovski had suffered multiple soft tissue injury. She sent him for further x-rays of his lumbar spine and left ribs.

When Mr. Argirovski returned a week later, Dr. Grossman recorded that he complained of a pain in the left side of his chest, a burning sensation in his upper back going up to his neck, headaches, poor sleep, including nightmares, and being nervous and afraid to drive or even be a passenger. She noted that he was very upset that he was unable to do a job he had been offered. By his third visit on August 15, 1996, he was still complaining of pain in both shoulders, his neck, upper and mid-back, and front chest wall. She recorded that he complained that he was "sore all over" and that he could not accept any work. After her examination of him and her review of his x-rays, Dr. Grossman queried whether there was "some functional component" at play in Mr. Argirovski's presentation. She referred him for chiropractic or physiotherapy treatment.

Mr. Argirovski first visited Dr. Judy Silverman, a chiropractor, on August 26, 1996, about five weeks after the accident. Dr. Silverman did not examine him that day, because he was "in too much pain." Instead, she applied ice and interferential current and gave Mr. Argirovski a back support. Dr. Silverman examined Mr. Argirovski on August 27, 1996. He complained of severe low back pain and leg pain, especially in his calf. He also complained of neck pain. At the time his worst pain was in his right calf. It was like a cramp. He could not sleep. Dr. Silverman recorded that Mr. Argirovski's straight leg raising was 35 degrees bilaterally.

I conclude from the ambulance and hospital records, and the testimony of Mr. Argirovski, Karen Siegel, Dr. Grossman, and Dr. Silverman, as well as from the health practitioners' clinical notes that Mr. Argirovski suffered an impairment in the accident of July 21, 1996. Allstate paid Mr. Argirovski weekly income replacement benefits until November 30, 1996. Allstate does not claim repayment of any benefits paid, although it disputes Mr. Argirovski's entitlement to any further weekly income replacement benefits.

Essential Tasks:

In order to be entitled to further weekly income replacement benefits after December 1, 1996, Mr. Argirovski must prove he was employed at the time of the accident, or, at some point during the 156 weeks before the accident, and that as a result of the accident, he suffered a substantial inability to perform the essential tasks of that employment.

Mr. Argirovski, Karen Siegel, and Karen Shani testified about Mr. Argirovski's employment prior to the accident of July 21, 1996. From their testimony, which I find to be credible on this issue, I conclude that Mr. Argirovski was a self-employed cleaner and handyman prior to the accident. Mr. Argirovski's hours of work and income varied according to the number of contracts he was able to secure. I find that Mr. Argirovski worked approximately 15 to 20 hours per week at the time of the accident. I make no finding about his income, because Mr. Argirovski dealt largely in cash and did not present any financial information about his business. In any event, Allstate paid Mr. Argirovski $185 per week, under the provisions of paragraph 10(2)(a) of the Schedule, and that amount is not in dispute.

I find that Mr. Argirovski's essential tasks included the mental and physical activity that is associated with the self-directed commercial cleaning of premises like restaurants and gymnasia, and the provision of handyman services like interior painting, moving furniture and accessories, assembling furniture, minor plumbing and electrical repairs, and installing carpet. Mr. Argirovski needed to be able to lift and move furniture and equipment alone, because he worked without a partner. He needed to be able to climb ladders, reach above his head, stoop, crouch, push, pull, bend at the waist and perform other physically challenging manoeuvres.

Termination of Income Replacement Benefits:

Allstate decided to terminate Mr. Argirovski's weekly income replacement benefits based on the report of Dr. F. K. Deegan, who testified at the hearing. Dr. Deegan is a surgeon who obtained his specialist qualifications in 1960. He examined Mr. Argirovski in an insurer's examination held on October 8, 1996. At that examination he recorded Mr. Argirovski's greatest complaints as follows:

He stated that he has pain which begins on either side of his head which passes ipsilaterally [on the same side] into his neck, the dorsal and lumbar areas of his spine and into the leg to the level of his foot. He also has similar pain passing into the ipsilateral upper extremity involving the hands and fingers. He described the pain in his legs as pins/needles and numbness. ... and cramps in his calf muscles and thighs.

Dr. Deegan found Mr. Argirovski was able to perform straight leg raising to 90 degrees, bilaterally. He noted that Mr. Argirovski's spontaneous movements in the areas of his complaint were different "(performed more completely and naturally) during periods of his inattention than were his movements in these areas during the course of the examination when requested." He noted that many of Mr. Argirovski's reactions "(due to alleged pain that he experienced in the course of the Examination) were not only exaggerated but were delayed." Dr. Deegan felt that the range of movement in Mr. Argirovski's lumbar spine was full in all planes. "He was able to forward flex so that his fingertips came to ankle level - at which point he mentioned that he [was] experiencing pain in his low back." Dr. Deegan concluded that Mr. Argirovski had sustained "significant (but not serious)" soft tissue injuries in the accident of July 21, 1996. He felt there was no anatomical basis for the distribution of pain of which Mr. Argirovski was complaining and that Mr. Argirovski could return to his work as a self-employed handyman. He also felt "there is no medical necessity" for Mr. Argirovski to participate in any ongoing rehabilitation program.

Causation:

A large part of the difficulty with Mr. Argirovski's case lies in the fact that a lumbar disc herniation was not diagnosed until the spring of 1999, almost three years after the accident of July 1996. Mr. Argirovski attributes this disc herniation to the 1996 accident. Allstate's theory is that the herniated disc either arose spontaneously or as a result of the January 1997 motor vehicle accident. Contrary to the view expressed by Mr. Argirovski's counsel, it is not up to Allstate to prove Mr. Argirovski's herniated disc resulted from the January 1997 accident. The burden of proof of the cause of his injury and the extent of his disability rests with Mr. Argirovski throughout in this arbitration.

The causation issue was addressed by Dr. Michael Indech, Mr. Argirovski's orthopaedic specialist. Although Dr. Indech did not testify in person at the hearing, he provided written replies to questions posed by Mr. Argirovski's lawyer. Dr. Indech is the former chief of Orthopaedic Surgery at North York General Hospital (Branson Division), in practice in Ontario since 1970. Dr. Indech's report was written in a neutral, professional manner. In areas where he did not feel qualified to comment, he declined to do so. I attribute significant weight to Dr. Indech's opinion.

Dr. Indech reviewed his early examination of Mr. Argirovski on September 12, 1996. He thought Mr. Argirovski had a back strain and some left calf pain that may have arisen from a strain to his left leg in the accident. Dr. Indech subsequently saw Mr. Argirovski again on March 11, 1999 after another referral from Dr. Grossman. Mr. Argirovski was still complaining of back pain, which he attributed to the accident and which had become worse with time "and particularly in the preceding nine weeks before his appointment with me on March 11, 1999." Dr. Indech reviewed Mr. Argirovski's x-rays and the report of his CT scan. Dr. Indech explained Mr. Argirovski's options for treatment, including surgery. Dr. Indech saw Mr. Argirovski again on May 11, 1999 at which time he referred him to Dr. Gregory Soon-Shiong, an orthopaedic surgeon with special interest in spinal disorders.

Dr. Indech received a consultation letter from Dr. Soon-Shiong dated June 4, 1999. Dr. Indech reported Dr. Soon-Shiong agreed the CT scan revealed a left L5-S1 postero-lateral disc herniation.

He also wrote that there appeared to be some early calcification of the same disc which indicated that it was "a fairly chronic situation." This piece of information was important because of the way Mr. Argirovski claimed his problem commenced mainly after his accident in 1996. You will recall that he had left calf cramps right from the outset which likely represented pressure on the left S1 nerve root in his back (in retrospect).

... I subsequently received a Report of Operation with respect to Mr. Argirovski dated August 24, 1999, dictated by Dr. Soon-Shiong at York Central Hospital in Richmond Hill. The doctor reported the following post-operative diagnosis: "Same (meaning chronic left L5-S1 postero-lateral disc herniation with S1 nerve root compression), with large osteophyte and calcified L5-S1 disc herniation." It was quite clear from the diagnosis and reading the text of the report that the calcified fragment had been present for quite a long time and that was certainly consistent with his prolonged symptoms dating back to his accident on July 21, 1996.

Dr. Indech reviewed medical documents forwarded by Mr. Argirovski's solicitor. He commented on Dr. Grossman's initial examination of Mr. Argirovski on July 26, 1996:

She drew a diagram of his body and put an arrow to his left lower leg indicating pain but no bruise which correlated with what Mr. Argirovski told me that he was having cramp pain in his left lower leg. It is not appreciated or really recognized as to what the cause of his left calf pain was then.

... In her notation of September 26, 1996 she recorded that Mr. Argirovski was complaining of lower back pain (left side) leg cramps, left leg sore. Therefore, it is now clear to me that Mr. Argirovski did indeed have left leg pain fairly soon after his accident if not immediately although I think that he likely had it immediately. He certainly had left leg pain in 1996. The problem was that he did not have clear-cut signs to confirm a clinical diagnosis of a left-sided lumbar disc herniation then. That does not mean that he did not have one then.

In my experience, especially in tall males,² it is possible to have a disc herniation with accommodation inside the spinal canal so that pain is the dominant complaint but no neurological compression signs may be evident. The explanation for this is that the spinal canal can be quite large in such persons and accommodate the nerve structures and the disc protrusion without producing specific neurological findings. Only a very substantial or extruded disc compressing nerve structures such as nerve roots would result in neurological findings but sciatic (leg pain) could still be a main complaint. In addition, disc protrusions and herniations are not always associated with persistent back pain and may only manifest as sciatica which seemed to be the pattern later on in the case of Mr. Argirovski. [emphasis added]

Dr. Indech described how long it may take for a chronic disc herniation to calcify. He commented that it was clear from Dr. Grossman's notes in 1997 that "Mr. Argirovski put up with the pains in his back and legs especially the left leg during 1997." Finally, Dr. Indech concluded:

I am satisfied that the back and left leg pain have been proven to be based on organic structural disease in his lumbar spine as already stated in detail earlier in this report.

Dr. Indech's only qualification was that the disc herniation could predate the July 1996 accident if Mr. Argirovski had "any prior symptoms of back pain or sciatica." He wrote: "As far as I could determine, Mr. Argirovski never had any symptoms of a lower back or left leg problem prior to this motor vehicle accident." I will comment on Mr. Argirovski's pre-accident history below.

Based on Mr. Argirovski's testimony, the testimony of Karen Siegel, and the testimony of

Dr. Grossman and Dr. Silverman, along with their clinical notes and records, and the report of Dr. Michael Indech, orthopaedic surgeon, I find that as of December 1, 1996 when Allstate terminated his income replacement benefits, Mr. Argirovski was not capable of performing his essential tasks remuneratively, as a result of his injuries from the accident in July 1996. Mr. Argirovski was complaining of headaches, sleeplessness, severe back pain, left leg pain and numbness during this period.

Mr. Argirovski's condition does not appear to have significantly improved during December 1996 and early January 1997. Dr. Grossman's notes and a record from Toronto General Hospital indicate that on January 22, 1997, just two days before the second accident, Mr. Argirovski attended at an emergency department complaining of headache and muscle cramping. Dr. Grossman called it a muscular spasm.

I am satisfied with Dr. Indech's explanation about Mr. Argirovski's atypical presentation on clinical examination, as a tall man standing some six feet two inches. I prefer the opinion of the orthopaedic specialist, Dr. Indech, in the area of his specialty, to that of Dr. Deegan, as a general surgeon. Nevertheless, I do accept that Dr. Deegan made the various observations of Mr. Argirovski he recorded on his examination on October 8, 1996. However, I do not accept his opinion that there is no anatomical basis for Mr. Argirovski's pain nor do I accept Dr. Deegan's ultimate opinion about the severity of Mr. Argirovski's complaints and injuries and their impact on his ability to work.

I also accept the evidence of Mr. Argirovski and Karen Siegel about Mr. Argirovski's activity and mostly asymptomatic back prior to the accident. Mr. Argirovski testified that he did suffer back pain after a car accident in 1994 for a few days, but he continued to work. His medical and OHIP records confirm one visit to his doctor in September 1994. As to a prior injury in 1991, he also testified that he continued to work. No evidence contradicts that assertion. When Ms. Siegel and Mr. Argirovski's evidence is taken with the Applicant's medical evidence, particularly that of Dr. Indech, I find that Mr. Argirovski has proven, on a balance of probabilities, that in the accident of July 1996 he suffered a disabling back injury that led to a disc herniation.

Effect of Second Accident:

Mr. Argirovski was involved in another accident on January 24, 1997 as a passenger. He has not claimed any statutory accident benefits from the Insurer responsible for his statutory accident benefits as a result of that accident. He testified he was not hurt in that accident and that it was a minor collision on Bathurst Street between two vehicles each exiting from opposing parking lots. No police report was filed at the hearing and no one else testified about the accident. The ambulance call report records minor front end damage to the car in which Mr. Argirovski was riding.

Mr. Argirovski testified he went by ambulance to the hospital, after a long time spent waiting in the car, just as a precaution. Allstate asserts that if Mr. Argirovski has an ongoing legitimate problem, then it arose from the January 1997 accident and is, therefore, not Allstate's responsibility.

I find Mr. Argirovski's assertion at the hearing that he was uninjured in the second accident inconsistent with the medical data.

The emergency department records of York Central Hospital show that Mr. Argirovski complained of pressure in the back of his head, numbness in his forehead, pressure in his eyes, pressure in low back, and cramps in both legs. The examining physician commented that Mr. Argirovski hit his head on the sun visor; he found decreased range of movement of Mr. Argirovski's neck, spine tenderness in his upper and lower back, and spasm in his calf. His chest, left ribs, and cervical spine were x-rayed. He was prescribed Tylenol no. 3.

Mr. Argirovski attended his chiropractor's office later on January 24, 1997. Her notes record that he was a passenger in a car hit by another car. "Couldn't move body or neck. Taken by ambulance to Branson (Hospital). No treatment today." His next attendance at her office was January 27, 1997: "Patient's symptoms aggravated by second motor vehicle accident. Neck pain and range of movement of cervical spine 20% of normal in all directions. Lumbar spine 75% of normal. Dr. Silverman's last previous re-assessment report from November 25, 1996 showed cervical spine rotation of 40%, lateral flexion 40%, flexion 50%, and extension 50% with pain. At the hearing Dr. Silverman testified that after January 24, 1997 Mr. Argirovski's back pain and neck pain was re-aggravated and "like square one." He had no new symptoms. Dr. Silverman testified that she concentrated on treating Mr. Argirovski's neck pain because that is where she had seen the most improvement with her treatment in the fall of 1996.

Mr. Argirovski's family doctor, Dr. Grossman, also examined him on January 27, 1997, three days after the accident. He said he hit his forehead on the windshield. He complained of pain everywhere, in his arms, left arm numb, cramps in legs, cramps in lower back, pain right side of chest, neck pain, "Feels 'even worse' than before," very nervous, shaky, forehead feels numb. Dr. Grossman concluded after her examination that Mr. Argirovski was tender to all the areas mentioned above, that there was a "major psychological component present," that Mr. Argirovski was receiving treatment already and he should continue the treatment. On his next visit of February 4, 1997, Dr. Grossman wrote: "increased pain since second motor vehicle accident... more nervous now, than before." Dr. Grossman testified at the hearing that Mr. Argirovski had no new symptoms after this accident except a complaint of hitting his forehead and some right chest pain.

From the evidence of Dr. Silverman, Dr. Grossman, and York Central Hospital, I conclude that Mr. Argirovski suffered some injury in the motor vehicle accident of January 24, 1997. Although the impact to his forehead was new, the other complaints exacerbated his injuries from the 1996 accident. In addition, his problems with anxiety increased.

Dr. Silverman's discharge letter dated January 31, 1997 indicated that Mr. Argirovski had been discharged prior to the 1997 accident. However, Dr. Silverman's clinical notes make no reference to an imminent discharge. The notes of his visits of January 16, 17, and 20, 1997 record Mr. Argirovski's complaints of increased pain in his legs and not being able to sleep. His last treatment prior to January 24 was January 21, 1997, where the indication made was "as above." Mr. Argirovski testified that at the time of the January 24, 1997 accident, he was on his way to the chiropractor's office, and indeed, he did attend there after the hospital, but received no treatment that day. Dr. Silverman's evidence at the hearing was that by the time of the January 1997 accident, Mr. Argirovski's complaints had not resolved, but her treatment did not seem to be benefiting him any longer. On May 6, 1997, Dr. Silverman wrote to Allstate under a reference line "Date of Accident: January 24, 1997: "

Mr. Argirovski participated in a rehabilitation program at our clinic for injuries sustained in a motor vehicle accident. On January 21, 1997 he finished his program with us as he had reached his maximum therapeutic benefit from our clinic.

On January 24, 1997 he was involved in a second motor vehicle accident in which he was a passenger. His injuries from the first accident were exacerbated by the second accident and he resumed treatment at our clinic.

He has demonstrated anxiety, memory loss, lack of concentration, mood swings and generally inappropriate behavior which may be due to a head injury from his accidents.

Dr. Silverman thought her letter of May 6, 1997 to Allstate reflected a poor choice of words. She testified that Mr. Argirovski was not discharged on January 21, 1997 because he was better, but she had done as much as she could for him. She testified in her professional opinion she treated Mr. Argirovski again following the January 1997 accident, because she thought she could help him.

From the reports in evidence authored by Dr. Indech and Dr. Soon-Shiong, I conclude that part of the reason for Dr. Indech, Dr. Little, Dr. Grossman and Dr. Silverman's lack of success as far as the diagnosis and treatment of Mr. Argirovski's leg and back pain was concerned lay in an undiagnosed herniated disc. It is clear from the contemporaneous hospital, medical and chiropractic records that Mr. Argirovski was still complaining of substantial pain, resulting from the 1996 injuries, right up until the day of the 1997 accident. These records assist me to understand why Mr. Argirovski would testify that the 1997 accident caused him no injury. He testified that it was the same pain as in 1996. After the 1997 accident only the intensity of the symptoms appears to be different in the short term.

In this system of statutory accident benefit compensation, Mr. Argirovski is not held to a standard of proof of certainty as to the cause of his injuries. In order to recover from Allstate he must prove that, on a balance of probabilities, the July 1996 motor vehicle accident was a "significant factor" or made a "material contribution" to his ongoing complaints. I find he has met this onus.³

Present Situation:

Mr. Argirovski testified he still has pain in his head—on the top of his head and at the back. Sometimes he feels pressure in his head. His back pain is always present and annoying. He feels pain at the belt line and below in his lower back. He cannot lift a 14-lb grandchild for more than a few minutes. He continues to get up several times in the night with pain and leg cramps.

Since his surgery on August 24, 1999 Mr. Argirovski testified that his leg pain has improved, but the back pain persists. Mr. Argirovski stated that he does drive now, but moves a lot in his seat to try to stay comfortable. Mr. Argirovski testified that he is more nervous and irritable than before the accident. He also is more reclusive and does not see his friends. He has insomnia, and nightmares every second night. His mood is very low. His personality has changed. He testified that he cannot work because of the pain. He does not have the stamina to stand for a lengthy period. He cannot lift heavy objects or even vacuum because of the pain. He cannot hold a brush for a long time to paint. He says he feels like half a man and misses the things he did before.

Mr. Argirovski's most recent examination by an orthopaedic specialist was conducted by Dr. Brian Alpert on December 14, 1999. Dr. Alpert's report of his examination was filed and he also testified at the arbitration. Dr. Alpert's conclusion after his examination of Mr. Argirovski is that he demonstrates a number of objective abnormalities including increased muscle tone in his lumbar paravertebral muscles, diminution of range of motion in the lumbar spine from one-third to two-thirds of normal, evidence of nerve root tension and damage including left calf circumference one centimetre smaller than the right calf, and straight leg raising limited to 60 degrees on the left side. Dr. Alpert found that Mr. Argirovski also suffers from tenderness in various parts of his cervical spine and has a decreased range of motion from half to 90 percent of normal in different planes.

Dr. Alpert's opinion is that Mr. Argirovski cannot return to his pre-accident employment as a cleaner or painter. In his view, Mr. Argirovski's restrictions include no prolonged walking, standing, or sitting, no bending, no pushing or pulling, no twisting, and no heavy lifting.

Dr. Alpert's report of December 14, 1999 makes no reference to Mr. Argirovski's involvement in an accident in January 1997. He testified in cross-examination that he was aware of that accident by reason of reviewing the report of Dr. Harris, which refers to the accident, and Dr. Grossman's clinical notes. He said that through inadvertence he had omitted any reference to this accident in his report. His understanding was that this accident was a minor incident. Dr. Alpert described the mechanism of injury to Mr. Argirovski's low back in the July 1996 accident, based on his understanding of the nature of the accident. In his view, the injury Mr. Argirovski suffered to his low back—a left L5-S1 posterolateral disc herniation with subsequent calcium crystal deposition— matched the forces of flexion and rotation that would have been experienced in that accident. In re-examination Dr. Alpert noted that the visit of Mr. Argirovski to the emergency department of a Toronto hospital two days prior to the 1997 accident, on January 22, 1997, complaining of muscle cramping implied that Mr. Argirovski had not recovered from the July 1996 accident, six months previously.

I accept Dr. Alpert's opinion with respect to Mr. Argirovski's present inability to perform his essential tasks as a cleaner, handyman, and painter. His opinion with respect to the cause of Mr. Argirovski's ongoing symptoms accords with Dr. Indech's opinion, that is, that they arose as a result of the July 1996 accident. However, because of Dr. Alpert's lack of discussion of the effect of the 1997 accident in his report, I do not rely on his opinion with respect to the cause of Mr. Argirovski's injuries as heavily as I rely on Dr. Indech's opinion.

Mr. Argirovski also presented evidence that his abilities to perform the essential tasks of his employment are compromised by psychological impairment. It is not necessary for me to deal with that area in detail, since I have found that he is substantially disabled by his physical impairments.

Supplementary Medical and Rehabilitation Claims:

Mr. Argirovski withdrew his claim for transportation expenses at the hearing.

Treatment by Dr. Ricardo Harris, C.Psych.

Dr. Grossman referred Mr. Argirovski to a psychiatrist early in his treatment, well before the second accident. At that examination, on November 13, 1996, the psychiatrist, Dr. Bruce Sutton, saw "signs and symptoms of adjustment disorder with depression." He was also concerned that Mr. Argirovski might be suffering from a form of temporal lobe epilepsy and suggested Dr. Grossman refer Mr. Argirovski to a neurologist to rule that out. Dr. Sutton indicated he would be happy to see Mr. Argirovski in the future at Dr. Grossman's request.

Dr. Grossman made the referral to a neurologist. She also wrote to Allstate on September 30, 1998 after Dr. Harris' invoices went unpaid and he refused to continue to see Mr. Argirovski.

Dr. Grossman expressed her opinion that Mr. Argirovski needed continued psychological treatment, as well as financial help for the "analgesics, muscle relaxants and antidepressant medications Mr. Argirovski needed as a result of his injuries."

Dr. Harris realized that Mr. Argirovski had been involved in two accidents. In his first report he related that Mr. Argirovski told him that his injuries from the July 1996 accident were aggravated by the January 1997 accident.

Allstate submits that it should not have to pay for the treatment Mr. Argirovski received from psychologist, Dr. Ricardo Harris, because this treatment did not commence until April 1997, after the second accident. This position was set out in a letter to Dr. Harris, written by Allstate's adjuster, Laura Erschler, dated June 5, 1997. Ms Erschler wrote:

I am in receipt of your report and invoice for same in the amount of $1,050.00. As Mr. Argirovski was involved in a second accident in January 1997, and you did not see Mr. Argirovski until April 1997, we can only assume that the referral was made to your office as a result of injury sustained in the second motor vehicle accident.

Based on this, I must deny payment of your invoice. I have enclosed an Assessment of Claim Form.

Section 36 of the Schedule requires that insurers pay for psychological services pending the resolution of a dispute relating to the expense. Allstate could have requested a health practitioner's certificate under section 37, but there was no evidence before me of such a request. Having requested such a certificate, Allstate could have then requested a medical/rehabilitation assessment by a designated assessment centre ("DAC"), under section 39 of the Schedule. It would have received a DAC's expert opinion on whether the expense was a reasonable and necessary treatment arising out of the July 1996 accident. Allstate requested no health practitioner certificate and no medical/rehabilitation DAC about this treatment. Instead it simply refused to pay for Mr. Argirovski's psychological treatment and tried to shift its responsibility to the second accident.

Dr. Grossman identified a psychological component to Mr. Argirovski's condition from an early time in her treatment. Even Dr. Deegan admitted on his cross-examination that he should have suggested Mr. Argirovski be psychologically evaluated, because of Mr. Argirovski's presentation at the Insurer's examination in October 1996. I find that psychological treatment for Mr. Argirovski was necessary, resulting from a psychological impairment or abnormality in psychological function he developed as a result of the accident of July 21, 1996. I find the 1996 accident was a major contributing factor and materially contributed to Mr. Argirovski's psychological state in April 1997, when this treatment commenced. The fact that another accident intervened does not negate Allstate's responsibility to pay for this treatment.⁴

Allstate made no submissions about the cost of Dr. Harris' assessment and treatment. Its dispute is about its responsibility to pay at all. Dr. Harris charged $1,050 for his assessment, testing and report of April 21 and 22, 1997 and $2,450 for 14 treatment sessions from June to September 1997, all at an hourly rate of $175. Dr. Harris began to address Mr. Argirovski's anxiety and depression with progressive muscle relaxation and mental imagery techniques. He began a desensitization program for Mr. Argirovski's driving fears. In the absence of any evidence from Allstate challenging the costs of this assessment and treatment, I find that the cost of this treatment was reasonable.⁵

Chiropractic and Massage Treatment:

Section 36(4) of the Schedule requires an Insurer to pay chiropractic expenses pending the resolution of a dispute. Section 39.1 of the Schedule sets out provisions relating to the payment of benefits under Part 7 and when they become overdue. Mr. Argirovski claims approximately $3,716 in chiropractic and massage therapy expenses from January 28 to March 24, 1997. Allstate submits that these treatments relate to injuries Mr. Argirovski received in the accident of January 24, 1997, for which Allstate is not responsible. The unique facts of this case have complicated the history of the chiropractic treatment and its payment.

I have accepted the evidence of Mr. Argirovski's family doctor and his chiropractor that the second accident "aggravated" or "exacerbated" his injuries from the first accident. In the usual case, Mr. Argirovski would, in all probability, have applied for statutory accident benefits following the 1997 accident to the Insurer responsible for his accident benefits as a result of that accident, just as Dr. Silverman's treatment accounts indicate. Dr. Silverman would have produced a treatment plan and followed the provisions of the new Bill 59 Schedule,⁶ which was in force by then.

However, that is not what occurred here and that Insurer is not before me. I must decide if the injuries Mr. Argirovski received in the 1996 accident were still materially or significantly contributing to his need for ongoing chiropractic and massage treatment, despite the 1997 accident. I find that to be so, for the reasons set out earlier relating to disability.

Allstate's adjuster, Laura Ershler, testified at the hearing about what actually happened in Mr. Argirovski's case. She wrote to Dr. Silverman on November 22, 1996 to confirm her telephone conversation with one of Dr. Silverman's clinic staff who indicated Mr. Argirovski was scheduled to be discharged from chiropractic and massage care by the end of December 1996. That prognosis is also set out in Dr. Silverman's OCF-15 "Certificate for Medical/Rehabilitation" dated November 21, 1996. Ms. Ershler wanted Dr. Silverman to contact her if the anticipated discharge date changed, so that she could arrange a medical/rehabilitation DAC assessment. Allstate did not plan to fund any further treatment after the end of 1996 without a DAC report.

Mr. Argirovski's legal representative signed an OCF-14 form, "Permission to Disclose Health Information to the Assessment Centre" on December 23, 1996. He sent a copy of the form to Allstate with a letter dated January 17, 1997. The DAC replied to Mr. Argirovski's legal representative on February 3, 1997 confirming various testing and appointments for February 7, 10, 12, and 14, 1997. The DAC sent copies of that letter to Allstate, Mr. Argirovski and Dr. Grossman.

Ms. Ershler testified she spoke with a representative of Dr. Silverman's clinic on January 29, 1997. She learned that Mr. Argirovski had been involved in a second accident and that he had resumed or was continuing treatment at the clinic. Ms. Ershler testified that on January 31, 1997 she telephoned the DAC to ascertain whether the assessment could go ahead as scheduled. Ms. Ershler testified that she was advised that the DAC could proceed, but that the assessors would "definitely" need some information about the second accident, for example, a treatment plan. Ms. Ershler had no documents relating to the second accident.

Ms. Ershler further testified that on February 4, 1997 during another telephone conversation with Dr. Silverman's clinic, she was advised that the clinic had sent its final treatment accounts for Mr. Argirovski and that it would bill another insurer for Mr. Argirovski's future treatment. Ms. Ershler testified that she was advised that Mr. Argirovski had been discharged from the clinic "from our accident" and "at that point you don't DAC, because it's all past treatment." The DAC appointment was cancelled.

Ms. Ershler's testimony about Mr. Argirovski's discharge from Dr. Silverman's clinic is independently confirmed in a series of letters from Dr. Silverman herself. On January 31, 1997 Dr. Silverman wrote to Allstate that: "Mr. Argirovski is discharged from our clinic as of January 21, 1997 for his motor vehicle accident dated July 21, 1996." A few days later, on February 5, 1997, Dr. Silverman wrote that Mr. Argirovski had been discharged from aquatic therapy as of January 23, 1997. She thanked Allstate for its cooperation with regard to this patient.

Dr. Silverman addressed a series of billing letters dated March 31, 1997 and June 3 and 4, 1997 to Mr. Argirovski's lawyer, not to Allstate. The reference line in all but one of the letters refers to an accident of January 24, 1997. The letter without a reference line refers only to Mr. Argirovski by name. The policy number and claim number are blank in each of the letters referring to the accident of January 24, 1997.

The mediator's report of May 6, 1997 refers to $3,700 in chiropractic and massage treatments with Dr. Silverman from January 1997 to March 27, 1997. The mediator wrote:

This issue was not resolved at mediation and remains in dispute. However, the parties have agreed to the following procedural arrangement: Mr. Arginovski (sic) will submit Dr. Silverman's bills for the costs claimed, to Allstate. Allstate will then arrange a Medical/Rehabilitation assessment to be conducted at the Designated Assessment Centre, Columbia Health Centre.

Allstate later changed its mind about this agreement. In a letter dated June 27, 1997 an Allstate manager wrote: "There is nothing on file to relate the treatment received by Mr. Argirovski to the July 21^st, 1996 motor vehicle accident." The Allstate manager quoted from Dr. Silverman's billing letter of March 31, 1997 and another letter of May 6, 1997 in which she stated, "On January 21, 1997 he [Mr. Argirovski] finished his program with us as he had reached his maximum therapeutic benefit from our clinic."

The procedural agreement reached at mediation approached the problem in a manner emulating the provisions of the Schedule. I make no comment about the ethics of rescinding a procedural agreement reached at mediation.

Allstate received the accounts for treatment after January 27, 1997 in May 1997. Although the accounts mention a 1997 accident, by the time of the mediation, it was clear that Mr. Argirovski was asserting that these accounts related to the 1996 accident. Allstate should have followed the Schedule's procedure relating to the chiropractic accounts.

Allstate should have requested a health practitioner's certificate under section 37 from Dr. Silverman. That certificate would have to state that the expense was reasonable, necessary, and as a result of an impairment sustained in a given accident.⁷ Allstate could have drawn Dr. Silverman's attention specifically to the Schedule's requirements. If no treating practitioner could give such a certificate, then paragraphs 39.1(1) and (2) of the Schedule would not have applied and the payments for the services enumerated in section 36 would not have become overdue. The Insurer would have had no obligation to pay pending dispute or to refer the disputed expenses to a med/rehab DAC. Allstate's obligation then would have been to follow section 39.1(6) and give a notice of its reasons for refusal.

However, if a health practitioner did certify, then the pay pending dispute obligation for chiropractic treatment must be fulfilled, at least until the DAC made its pronouncement. For massage treatments, presumably obtained under section 36 (1)(h) "other goods and services of a medical nature that the insured person requires," the expense would not be overdue until 14 days after a requested DAC report found the expense reasonable and necessary. If the DAC report did not find the expense reasonable and necessary, it would not be overdue until an arbitrator or judge disagreed and ordered the expense to be paid.

Accordingly, then, I find that Allstate is liable for the $3,716 in chiropractic and massage therapy expenses from January 28 to March 27, 1997 as a result of the injuries Mr. Argirovski sustained in the July 1996 accident. Allstate was presented with these accounts on May 7, 1997. Interest runs on that amount from May 21, 1997, according to subsections 39.1(1) and (2) of the Schedule.

Housekeeping:

Mr. Argirovski presented claims for $3,171 under section 55 of the Schedule which provides for "additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services." These claims relate to services claimed to have been provided by Karen Siegel, who lived with Mr. Argirovski both before and after the July 1996 accident, from August 1996 ongoing. Exhibit 2.4 contains biweekly sheets containing claims for 20 weeks, but the dates of service are cut off on most of the sheets. The claims run into at least March 1997, which is more than 20 weeks after August 1996. The hourly rate claimed is $8.50 for services such as laundry, house cleaning, cooking, grocery shopping, driving to various appointments, and help with showering. Allstate paid $600 or $50 per week for 12 weeks for these services.

Ms. Siegel testified at the hearing about the services she provided and I reviewed the documentary evidence. She and Mr. Argirovski live in a one-bedroom apartment with laundry facilities in the building. Ms. Siegel testified that before the accident she and Mr. Argirovski shared cooking and cleaning responsibilities. She testified in cross-examination about her employment in late 1996 and early 1997 as a paid caregiver, seven hours per day, for an invalid living in her apartment building. Ms. Siegel admitted that the hours of work shown on the housekeeping schedule were inaccurate, but insisted that she did perform 25 to 27 hours per week of work for Mr. Argirovski. Ms. Siegel testified that the time she claimed increased in 1997 when she realized she could claim her time on weekends as well as Monday to Friday. She testified that the time she actually spent was equal throughout Mr. Argirovski's convalescence.

It is not clear how much of Ms. Siegel's time as a chauffeur is included in these accounts. Chauffeuring services are mentioned on three sheets, representing six weeks of claims. Such claims fall under paragraph 36(1)(g) of the Schedule for transportation expenses,⁸ not section 55, and are not compensable as housekeeping or home maintenance claims. No evidence from Dr. Grossman or Dr. Silverman was provided to support Mr. Argirovski's requirements for housekeeping services.⁹ Both Mr. Argirovski and Ms. Siegel testified that before the accident they shared the cooking and housekeeping responsibilities. No one testified about the amount of additional time Ms. Siegel spent on these activities after the accident, which is what the Schedule covers.

Based on the meagre oral evidence provided at the hearing by Ms. Siegel and Mr Argirovski about these claims, as well as a review of the medical and surveillance evidence, I am not satisfied, on a balance of probabilities, that the expenses claimed were reasonably incurred by Mr. Argirovski for housekeeping. Mr. Argirovski's injuries in the July 1996 accident should not have reasonably prevented him from doing many of the housekeeping chores for which Ms. Siegel claims payment. I have no doubt that Ms. Siegel took on more responsibilities in this area after the accident because it was easier for her to do the tasks and out of compassion for Mr. Argirovski. Lacking detailed evidence with respect to this claim, I am not prepared to apportion out of the claims what may have been a reasonable amount, and accordingly, the claim fails.

Special Award:

Section 282(10) of the Act provides that an arbitrator shall award a lump sum special award to an insured person if an insurer has unreasonably withheld or delayed payments. In my view, Allstate unreasonably withheld payments to Dr. Harris. Ms. Ershler's letter to Dr. Harris dated June 5, 1997 denying payment by "assuming" that the referral to his office was as a result of the January 1997 accident does not follow the procedure required by the Schedule when an insurer disputes a treatment claim. Unfortunately, Dr. Harris' progress reports during the summer of 1997 make no reference to this letter from Ms. Ershler and do not respond to the issue she raised of the role of the second accident.

Allstate should have requested a health practitioner's certificate from Dr. Harris, and if it disagreed with his proposed treatment, it should have requested a DAC assessment. Ms. Ershler did arrange an insurer's examination of Mr. Argirovski by a psychiatrist for July 7, 1997, but Mr. Argirovski never attended.¹⁰ Under the Schedule, an insurer's examination, however, is never a substitute for a DAC assessment.

Dr. Grossman wrote a two-page letter directly to Allstate on September 30, 1998 particularly with regard to funding psychological treatment for Mr. Argirovski. She testified at the hearing that she was angry that the Insurer was not paying for psychological treatment or medication.

Allstate's unreasonable withholding of payment for Mr. Argirovski's psychological treatment should attract a special award of 25 percent of the amount to which Mr. Argirovski is entitled, together with interest on all amounts owing (including unpaid interest) at 2 percent per month, compounded monthly, from May 1997, as the benefits became payable under the Schedule. I award 25 percent because I do not find Allstate's conduct deserves the maximum penalty, given the intervention of a second accident, and the lack of any responsive reply to its explanation of June 5, 1997.

With respect to the chiropractic accounts, I do not find that these payments were unreasonably withheld or delayed. The accounts were not presented for payment until more than one month after the final treatment was completed. Allstate had evidence from the chiropractor herself that suggested Allstate would not be responsible for these treatments. Although Allstate is technically in violation of "pay pending dispute," in these unique circumstances a special award on the chiropractic account is not appropriate.

With respect to a special award on weekly income benefits, I do not find that these benefits were unreasonably withheld. In November 1996, after it received Dr. Deegan's report, Allstate followed the proper procedure under section 64 of the Schedule in advising Mr. Argirovski that it intended to terminate his benefits at the end of November 1996. It was then up to Mr. Argirovski to request a disability DAC assessment, or initiate mediation forthwith. He took neither step at that point. While I have not accepted Dr. Deegan's opinion about the extent of Mr. Argirovski's disability and the lack of anatomical basis for his complaints, my opinion is largely influenced by the benefit of hindsight, resulting from the 1999 diagnosis of Mr. Argirovski's herniated disc. It was not unreasonable for Allstate to rely on Dr. Deegan's opinion in November 1996. As for any obligation for Allstate to re-evaluate its position as this dispute progressed, in my view it was not unreasonable for Allstate to maintain its position that Mr. Argirovski's herniated disc developed as a result of the January 1997 accident or arose spontaneously.

EXPENSES:

As the parties did not advise me that neither of them seeks to have an Offer to Settle or a Response to an Offer to Settle considered in connection with an award of expenses, I have not determined that issue. If the parties cannot agree on the issue of expenses, either party may apply for a resumption of the hearing by teleconference, for submissions on that issue.

March 14, 2000

K. Julaine Palmer

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 51

FSCO A98–000816

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VLADO ARGIROVSKI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Allstate Insurance Company of Canada shall pay Vlado Argirovski a weekly income replacement benefit from December 1, 1996, ongoing, pursuant to section 7 of the Schedule until the terms of Part VI of the Schedule relating to loss of earning capacity benefits have been fulfilled, plus interest according to section 68 of the Schedule.

2. Allstate Insurance Company of Canada shall pay Vlado Argirovski $3,716 in supplementary medical expenses for chiropractic and massage treatment claimed pursuant to paragraphs 36(1)(b) and (h) of the Schedule, plus interest from May 21, 1997 at 2 percent per month compounded monthly, according to section 68 of the Schedule.

3. Allstate Insurance Company of Canada shall pay Vlado Argirovski $3,500 in supplementary medical expenses for psychological treatment provided by Dr. Ricardo Harris, pursuant to paragraph 36(1)(b) of the Schedule, plus interest as provided in paragraph 39.1(1) and section 68 of the Schedule.

4. Mr. Argirovski is not entitled to $3,171 claimed for housekeeping services.

5. Allstate Insurance Company of Canada shall pay Vlado Argirovski a special award of 25 percent of the amount to which Mr. Argirovski is entitled for psychological treatment, together with interest on all amounts owing (including unpaid interest) at 2 percent per month, compounded monthly, from May 1997, as the benefits became payable under the Schedule, pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended.

6. The issue of expenses is not yet determined.

March 14, 2000

K. Julaine Palmer

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2The examiner at the Functional Abilities Evaluation of October 8, 1996 reported Mr. Argirovski measured 6'2" and weighed 178 pounds.
3. 3See Hamelin and Alpina Insurance Company, (OIC A-003506, July 19, 1994); Koch and AXA Insurance (Canada), (OIC A-951417, June 6, 1996), confirmed on appeal (OIC P96-00058, May 8, 1997); Saliba and Allstate Insurance Company of Canada and Progressive Casualty Insurance Company, (FSCO A95-000629, September 16, 1999).
4. 4See the discussion in Saliba and Allstate Insurance Company of Canada and Progressive Casualty Insurance Company, (FSCO A95-000629, September 16, 1999), at page 25.
5. 5A discussion about the burden of proof of reasonableness of cost of treatment is set out in my decision in Gaba and Allstate Insurance Company of Canada, (OIC A-000624, August 21, 1992).
6. 6The Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, and 303/98.
7. 7Form OCF-15 the Certificate for Medical/Rehabilitation, Attendant Care states: "The purpose of this form is to certify that the expenses are reasonable and necessary." The date of the accident must be provided. The health practitioner is asked, "List the goods & services required as a result of the injuries sustained in the accident." For rehabilitation/ treatment the form asks "How Often/How Long/Why is it necessary?" The signing health practitioners are asked to sign following a statement: "I certify that the expense(s) described above are reasonable and necessary for the person's care/treatment."
8. 8Mr. Argirovski abandoned his claims for transportation expenses at the hearing.
9. 9Testimony or evidence from a medical witness is not strictly speaking required, but can be helpful. See my comments in Kats and Axa Insurance (Canada), (OIC A97-000194, December 22, 1997).
10. 10According to correspondence Allstate filed, Mr. Argirovski's counsel indicated the date scheduled was not convenient for Mr. Argirovski.