Ema Paunova v. Allstate Insurance Company of Canada, 2005 ONFSCDRS 111

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 111

FSCO A02-001087

BETWEEN:

EMA PAU NOVA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

May 12, 13, 14, 15, 16, 23, 2003; July 30, 2003; September 12, 2003; November 21, 2003; December 19, 2003; May 10 and 11, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Christopher D. Finlay for Ms. Paunova

William M. Sproull for Allstate Insurance Company of Canada

Issues:

Ema Paunova was injured in a pedestrian knock down on June 15, 2000. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits on February 6, 2002. The parties were unable to resolve all of their disputes through mediation, and Ms. Paunova applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Ms. Paunova claims income replacement benefits from February 6, 2002 to date and ongoing. In respect of her claims to these benefits from February 6, 2002 to June 15, 2002, she must establish that she is substantially unable to perform the essential tasks of her pre-accident employment. To continue to be entitled to these benefits beyond June 15, 2002 she must establish that she is completely unable to perform the essential tasks of any employment for which she is reasonably suited by reason of her education, training or experience.

Allstate takes the position that Ms. Paunova failed to meet her burden of establishing that she meets either test for entitlement to income replacement benefits. In short, Allstate takes the position that Ms. Paunova is an "actress" who has pulled the wool over the eyes of many of the persons who have assessed her over the years and is not as disabled as she claims.

In making this case Allstate relied on a host of alleged inconsistencies in Ms. Paunova's presentation over the years, as well as a number of allegedly misleading or incorrect statements provided to assessors and the Insurer. Allstate also relied heavily on the opinion of a psychiatrist it retained, Dr. Jeffrey Wyndowe, who assessed Ms. Paunova on two occasions.

Dr. Wyndowe initially concluded that Ms. Paunova was unable to perform the essential tasks of her pre-accident employment, but after a second assessment, concluded that she could return to work, largely as a consequence of alleged inconsistencies in her presentation - essentially Dr. Wyndowe concluded that Ms. Paunova was not a credible historian and was motivated to present herself as more disabled than she was.

Ms. Paunova also claims a medical benefit in the form of physiotherapy and other treatment provided to her by the ACT Health Group ("ACT").

The issues in this hearing are:

1. Is Ms. Paunova entitled to an income replacement benefit of $125 from February 6, 2002 to June 15, 2002 and $185 per week from June 15, 2002 to date and ongoing?

2. Is Ms. Paunova entitled to a medical benefit for treatments, provided by the ACT Health Group, pursuant to section 14 of the Schedule?

3. Is Allstate entitled to a repayment of income replacement benefits paid to Ms. Paunova, pursuant to section 47 of the Schedule?

4. Is Ms. Paunova entitled to interest on any amounts found to be owing pursuant to section 46 of the Schedule?

5. Is either party entitled to have their expenses paid by the other?

Result:

1. Ms. Paunova is entitled to an income replacement benefit of $125 from February 6, 2002 to June 15, 2002, and $185 from June 15, 2002 to date and ongoing.

2. Ms. Paunova is entitled to a medical benefit for treatments provided by the ACT Health Group, as set out in the treatment plan dated May 20, 2001, pursuant to section 14 of the Schedule. She is not entitled to payment for the treatment plans dated November 30, 2001 and February 19, 2002.

3. Allstate is not entitled to a repayment of income replacement benefits paid to Ms. Paunova.

4. Ms. Paunova is entitled to interest pursuant to section 46 of the Schedule.

5. The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

Factual Background

A court reporter was present throughout most of this proceeding. The transcript was not produced and was not referred to in coming to these conclusions.

Ms. Paunova was born in a small village in Bulgaria. She is ethnically Turkish. She speaks Bulgarian, Turkish and is minimally functional in English. Her education ended before what we would consider high school in Ontario, because her labour was needed to support the family. Her first work was on the family farm, she also was a water carrier in her village. She married when she was 17 and her only child, a son, was born shortly thereafter.

Not long after her marriage Ms. Paunova moved with her husband to Sofia, the capital of Bulgaria. She worked in a metallurgical factory for 25 years. She and her husband divorced after a few years and she raised her son on her own, while continuing to work in the factory.

In response to ethnic tensions, Ms. Paunova and her son, accompanied by a young woman who became her son's spouse, left Bulgaria in the late 1980's. Ms. Paunova worked as a cleaner in a hotel in Istanbul. For a period of two or more years, she and her son and daughter-in-law lived in a hotel room. In 1992 her son and daughter-in-law emigrated to Canada. Ms. Paunova returned to Bulgaria to care for her mother who was ill and who died in 1993.

In 1995 Ms. Paunova emigrated to Canada, sponsored by her son. She described herself in immigration documents, as a pensioner, who was coming to Canada to be a housekeeper for her son and daughter-in-law. Allstate questioned the characterization as a pensioner, Ms. Paunova testified that in Bulgaria, after 25 years in a metal works, one is pensioned off. I accept this evidence.

Ms. Paunova provided housekeeping services and lived with her son and daughter-in-law. She was not paid wages for this work. She took English courses. At some point, not long after completing an English course, she began working in her son's Pizza Pizza franchise.

In the summer of 1999 she began working as a kitchen helper at Jimmy the Greek, a fast food restaurant in the Square One Shopping Mall. Her duties included cleaning and preparing vegetables - potatoes, carrots and tomatoes; cooking souvlaki on the grill and moving trays of meat back and forth from grill to serving area. Her other principal duties were the cleaning up of the kitchen area and washing, by hand, of the meat trays and other utensils used in the restaurant. She sometimes, but rarely, would serve customers. She did not normally take orders from customers because her English was perceived as inadequate. She did not operate the cash register.

Her work was considered moderate to heavy labour. The bags of potatoes and carrots were heavy, up to 50 lbs. The trays of meat could weigh as much as 30 lbs. Although not a constant during the day, it was essential to her job functions to carry these kinds of weight throughout her work day.

There is some confusion about Ms. Paunova's hours of work prior to the accident. At a minimum Allstate had reason to be confused by the differing accounts of her hours of work and more significantly her remuneration. In fact Ms. Paunova's hours of work varied from day to day and week to week. It appears that generally she would have worked four or, on occasion, five days a week at Jimmy the Greek. Because she could be counted on to come in when needed, her employer may have called her in for an extra day here and there. The length of her shifts varied as well. On most days she would work 4 or 5 hours per day. She did testify that on occasion she would work up to 10 hours a day. This appears to have been a rare occasion, associated, in her testimony, with a special event in the shopping mall, such as a fashion show. It appears more likely than not that Ms. Paunova's hours of work would vary between 20 to at most 30, in any given week and rarely more than that. For these hours of work Ms. Paunova was initially paid $7 and after a raise in pay, $9 per hour.

Mr. Tzafaridis, her employer, testified that she was an excellent employee, who worked hard and appeared to enjoy her work. She did what was asked of her without complaint, she "followed the rules". She was flexible and would come in to work when asked. The only complaint that her employer ever heard from others was that sometimes Ms. Paunova talked too much. Her employer testified that they were sorry to lose her and would welcome her back if she were able to work.

As noted earlier, Ms. Paunova also worked at her son's Pizza Pizza restaurant. Ms. Paunova was not paid wages for this work. There is some confusion about when this work ended. Ms. Paunova, in her testimony, stated that after taking the paid job at Jimmy the Greek, she continued to work in the Pizza Pizza on Fridays. Prior to her taking paid work, she testified that she worked at Pizza Pizza, Fridays and usually Sundays but never on Monday.

Time sheets available from Jimmy the Greek covered only the last few weeks of her employment there and show that Ms. Paunova did not work on Friday, so she would have been available to work for her son on Friday. Indeed there is no substantial evidence that she did not continue to work for her son at the Pizza Pizza other than ambiguous statements contained in reports of various assessors who saw Ms. Paunova over the years. I find it more likely than not that Ms. Paunova worked in the Pizza Pizza until, at least, shortly before the accident if not until June 14, 1999.

In the years prior to the motor vehicle accident Ms. Paunova lead an active life with her work in the home, at the Pizza Pizza and at Jimmy the Greek. She was in generally good health although there are recurring complaints of minor aches and pains. She did suffer from hypertension as well as largely asymptomatic degenerative disc disease. Bone density scans were done prior to the accident and Ms. Paunova was diagnosed as osteopenic. Despite these maladies, she was not restricted in any significant way from leading an active and fulfilling life.

On June 15, 2000, Ms. Paunova was struck by a van while crossing a street on her way to work. There is no doubt that she struck her head. Her Glasgow Coma Scale score is inconclusive because of the possibility that her language limitations may have been a factor in the initial assessment at the scene. However, the consensus of medical opinions is that her Glasgow Coma scoring was likely normal or near normal at all material times. She is reported, from the beginning, as not being able to recall the accident.² The extent of any pre-accident amnesia is unclear. Post-accident, reports of amnesia are not well documented and somewhat inconsistent.

Ms. Paunova was transported by ambulance to the hospital, treated there and released to her son the following day. There are reports of nausea and vomiting while in Emergency. Her injuries at the time included: bruised knees; extensive abrasions over her body; displaced fractures of the right second rib; fractures of the third and fifth rib; possible haemangioma to the liver; pain in the pelvic region; stress injury to the right sterno clavicular joint; lacerations to the tip of her tongue, her occipital scalp, haematoma on the right frontal scalp. She also suffered an injury to several of her front teeth.

Ms. Paunova saw her family physician, Dr. Dhanoa, on June 21, 2000 and was referred by him to ACT Health Group ("ACT") for treatment of her various injuries as described above.

Within a month of the accident Dr. Dhanoa's notes record complaints of right hand numbness, dizziness, headaches, forgetfulness and tearfulness. He referred Ms. Paunova to Dr. McKenzie, a neurologist, in July because he suspected some of her complaints were a result of post-concussion syndrome. Dr. McKenzie, after examining Ms. Paunova, concurred.

Ali Faghani, the clinical director of ACT testified that he and his colleagues noted that Ms. Paunova appeared to be very depressed and emotional through the Fall and Winter following the accident.

Dr. Dhanoa prescribed Tylenol #3, Immovane and Paxil for Ms. Paunova's various physical and psychological complaints. In September, Amitriptyline was added to the mix to respond to Ms. Paunova's complaints of headache and depressive symptoms as well as Loxopac, an anti-psychotic medication which was prescribed in response to possible psychosis, detected by Dr. Dhanoa.

In late September 2000, Dr. Dhanoa referred Ms. Paunova to Dr. Girgla, a psychiatrist, because he continued to be concerned about the signs of a psychotic element to her depressive symptoms including paranoia, reports of hearing voices, and bizarre dreams. At this time, Dr. Dhanoa began to consider the possibility that Ms. Paunova was suffering Post Traumatic Stress Disorder. By November 2000 there are indications of some improvement in Ms. Paunova's condition. Dr. Dhanoa noted that she was groomed, smiling and presented appropriately. However he also noted that she reported still hearing voices and felt a crawling sensation on her right leg. Dr. Dhanoa increased her Amitriptyline dosage to 100 mg from 75mg.

In December 2000, Dr. Dhanoa noted that Ms. Paunova was tearful, but not delusional. In January 2001, Ms. Paunova was still complaining of neck and lower back pain, insomnia and depressed mood. In February 2001, Dr. Dhanoa reported that Ms. Paunova complained of increased mood swings. Lorazapan, an anti-anxiety medication was prescribed. In March 2001, Dr. Dhanoa noted right shoulder pain with reduced ROM, occasional low mood. In April, Ms. Paunova expressed a fear of dying. At that time Dr. Dhanoa replaced Loxopac with Resperagil. In June 2001, on the advice of Dr. Wyndowe, Dr. Dhanoa switched Ms. Paunova from Amitriptyline to Zoloft.

Ms. Paunova's reported medical condition has not improved since the Winter 2000-2001. After some initial indications of improvement as reflected in the records of Dr. Dhanoa and ACT, her condition appears to have deteriorated since then. She claims that she continues to suffer from chronic neck and lower back pain, headaches and dizziness. Her treating medical professionals and other experts retained by her representatives claim that she suffers as well from a number of variously diagnosed psychological or emotional maladies, including chronic pain syndrome, post traumatic stress disorder, major affective disorder, depression (major or moderate), emotional lability etc. Ms. Paunova appears to most observers to be quite un-well, the ultimate question for determination is the extent to which her impairments are real or feigned and whether any or all of them entitle her to benefits under the Schedule.

Medical Opinion Evidence

Dr. Harminc, a treating psychologist, in a report dated December 4, 2000, noted that Ms. Paunova displayed a number of psychological symptoms including anxiety, depression, inability to relax, nervousness in cars, bad dreams, nightmares, and probably brief psychotic episodes with reports of her hearing voices and experiencing delusions.

Dr. Brian Kirsh, the Medical Director of the Chronic Pain Management Unit, Hamilton Health Sciences Corporation, is a psychiatrist and an expert in the identification and treatment of chronic pain syndrome. He examined Ms. Paunova at the request of her representatives in March 2003. Dr. Kirsh provided two reports which were entered into evidence and testified at the hearing as well.

Dr. Kirsh, in his report dated March 21, 2003, offered the following diagnoses for Ms. Paunova:

Axis I

Chronic Pain Disorder associated with Psychological and Medical Factors Mood and Personality Change due to Traumatic Brain Injury Chronic Adjustment Disorder with Anxiety and Depressed Mood

Axis II

She demonstrates obsessive-compulsive and histrionic personality traits

Axis III

Widespread soft tissue pain

Degenerative Disc Disease

Chronic Headache - mixed cervogenic, tension and migraine Obesity

Axis IV

Stressors include living with chronic illness, unemployment, poor finances, family dysfunction, social isolation

Axis V

GAF estimated to be 49.

Dr. Kirsh concluded, in this same report, that Ms. Paunova was only able to manage light duty work for a maximum of 3 hours in a day. At the hearing he testified that he meant by this that over the course of a normal work day of 8 hours, Ms. Paunova may be able to manage three hours of light duty work on an intermittent basis, but not daily. He also concluded in his report that Ms. Paunova was totally disabled from performing any work for which she had education, training or experience.

Dr. Robert S. Yufe, a neurologist, conducted an assessment of Ms. Paunova in November 2000 on behalf of Allstate. He also gave evidence at the hearing. He concluded in his November 10, 2000 report that there were indications of a mild head injury, but no neurological signs of traumatic brain injury, injury to the spinal cord, cervical or lumbar nerve roots, peripheral nerves or muscles. In a follow up report, dated April 14, 2003 after reading a much more detailed medical record for Ms. Paunova, Dr. Yufe wrote that there was nothing in the record that would change his earlier opinion that Ms. Paunova had not suffered any neurological impairments. He did offer the view that the overwhelming weight of the medical evidence was that Ms. Paunova had suffered a Major Affective Disorder.

Dr. Yufe's diagnosis was post-concussion syndrome with post-traumatic headache with features of both tension and migraine type. In his opinion, from a neurological perspective, there was nothing to prevent Ms. Paunova from working at her pre-accident job or any other job for which she was reasonably suited by reason of her education, training or experience. When questioned by counsel for Ms. Paunova, Dr. Yufe conceded that a brain injury, with behavioural sequalae, could result from a relatively minor trauma and yet not be detectable on a CT scan or MRI.

Dr. Sunday, a neurologist, in a June 2001 report was unable to determine whether or not Ms. Paunova had suffered any cognitive impairments as a result of injuries sustained in the accident. He did diagnose a Major Affective Disorder and Post-Traumatic Stress Disorder.

Dr. Scherer, a rehabilitation psychologist, assessed Ms. Paunova on June 12, 2002 and again on January 22, 2003 at the request of Ms. Paunova's representatives. His opinion, in March 2003, was that she no longer had sufficient symptoms to support a diagnosis of Post Traumatic Stress Disorder although some residual symptoms remained:

There remain indications of a major affective disorder, which complicates her everyday functioning. There is a pattern of suicidal ideation, catastrophic thinking, and profound feelings of helplessness and hopelessness. While she is followed psychiatrically and is medicated she nevertheless experiences a significant degree of emotional distress. Individuals with similar clinical profiles usually are not capable of meeting the everyday demands of full-time employment.

Dr. Edmeads, a neurologist retained by Ms. Paunova's representatives, concluded in a report dated June 7, 2002, that she had sustained a significant head injury as indicated by the consistent history of retrograde and anterograde amnesia, standard markers of the presence of concussion. Dr. Edmeads also concluded that the headaches Ms. Paunova complained of could be medication rebound headaches, but because of her profound depression and equally profound lack of insight it is unlikely that she could be persuaded to stop taking analgesics. Accordingly, in Dr. Edmeads view Ms. Paunova was likely "trapped in an inescapable morass of tension-type headaches, possibly with a migraneous component, markedly accentuated by head trauma, and perpetuated by over-use of analgesics." He foresaw little hope for improvement in her condition.

In a follow-up report dated April 2, 2003, Dr. Edmeads reiterated his earlier views, as set out above, and offered that she would have been unable to return to her pre-accident duties and given "the disability from her multiple symptoms at the time I saw her was such, that I can think of no employment with which she could have coped".

Dr. Lionel Gerber, a psychiatrist, assessed Ms. Paunova, at the request of her representatives in March 2003. In his report dated March 28, 2003, Dr. Gerber concluded that as a result of the accident, Ms. Paunova suffers under Axis I: a Chronic Pain Disorder associated with both Psychological factors and a General Medical Condition, a Chronic Major Depressive Disorder, a Chronic Posttraumatic Stress Disorder, and a traumatic brain injury or post-concussional disorder, and under Axis II: Personality Disorder. As a result of these conditions, it was also Dr. Gerber's opinion that Ms. Paunova was substantially disabled from performing the duties of her pre-accident employment and that it was unlikely that she could perform any work as a result of her physical and emotional difficulties.

As indicated, Dr. Dhanoa referred Ms. Paunova to Dr. Satpal S. Girgla, a psychiatrist, who has been treating her since April 9, 2001.

Dr. Girgla, in an April 2001 report to Dr. Dhanoa, diagnosed under Axis I: Post Traumatic Stress Disorder with various somatic symptoms; under Axis III Somatic symptoms, and under AXIS V: a GAF of 50. In a follow up report dated April 4, 2003, Dr. Girgla changed his diagnosis somewhat, under AXIS I: Post Traumatic Stress Disorder with possibility of symptoms of major depression; under Axis III: Chronic Pain; various somatic symptoms since the accident in June 2000 and under Axis V: a GAF of 50-55.

As indicated at the outset, Dr. Wyndowe assessed Ms. Paunova at the request of Allstate on two separate occasions. Although he shares the opinion of others that Ms. Paunova suffers from a number of emotional and behavioural impairments as a result of the accident, he disagrees that these impairments are sufficient to prevent Ms. Paunova from working.

The source of Dr. Wyndowe's disagreement with the other expert opinions largely flows from his belief that Ms. Paunova is significantly exaggerating her symptoms in order to present as more impaired and disabled then she really is.

The following passage from Dr. Wyndowe's January 9, 2002 report captures the essence of his view of her:

For this re-examination, when some details of the accident were available for comparison, it was found that Ms. Paunova exaggerated her impairment in points of history, self-description and clinical presentation. The amount of energy and enthusiasm she injects into her importuning and declarations of distress seems to preclude a diagnosis of Major Depression. Job factors appear to be potent motivators of attempts to portray herself in terms of exaggerated impairment and disability.

Dr. Wyndowe accepted that Ms. Paunova was disabled from returning to her pre-accident work in his first assessment of her and while changing his opinion, in this regard after his second assessment, continued to accept that she suffered some level of impairment.

The differences between the two assessment reports are razor thin.

The complaints of Ms. Paunova which Dr. Wyndowe notes in his second report are essentially the same as he had recorded months earlier. Scoring on psychological testing on both occasions was essentially the same. As well, on both occasions, Dr. Wyndowe scored her using the four point matrix from Chapter 14 of the AMA Guides to the Assessment of Permanent Impairment³ The scores ranged from mild to moderate in each of the four spheres and were the same on both occasions except for category 3, concentration, persistence and pace, where Dr. Wyndowe scored Ms. Paunova as slightly more impaired on the second occasion.

Another difference between the two reports is in the DSM IV diagnoses offered. In his first report Dr.Wyndowe concluded under Axis I that Ms. Paunova suffered from Major Depression, moderate and in the second Adjustment Disorder with depressed mood. On the second occasion he also noted under Axis II - traits of histrionic personality, when on the first occasion nothing was recorded there.

When asked how, in the second assessment, he could square the fact the she appeared to have six of the symptoms of depression where only five are required for the diagnosis, he stated that he simply no longer believed her reporting of these symptoms.

The GAF scores that he assigned to Ms. Paunova on the two assessments were not very different. On the first assessment he gave a GAF score of 50 to 55 and on the second 60. When challenged about the similarity of these two scores he conceded that there remained a level of impairment, but that patients with scores of 60 should "think about going back to work".

Dr. Wyndowe stated that, in his opinion, Ms. Paunova is highly motivated to present as more disabled than she is. When questioned by counsel for Ms. Paunova, he conceded that out and out malingering was rare and he did not necessarily feel that Ms. Paunova was lying or that her exaggerations were conscious. Dr. Wyndowe also agreed that exaggeration was not an unusual feature of chronic pain syndrome.

Most of the experts whose opinions are summarized above were given an opportunity to review videotapes of surveillance conducted on behalf of Allstate. None indicated that it changed their opinion.

The surveillance evidence is not particularly helpful either in respect of an alleged lack of veracity in Ms. Paunova's presentation, nor in respect of the substantive issues of her level of disability. Ms. Paunova was observed over 6 days in mid-April 2001. On two of the six days she did not leave the house. On one of the days she attended an assessment with Dr. Wyndowe. She appears to walk and talk with a family member in the parking lot of the assessment centre where she has met with Dr. Wyndowe. She evidences pain behaviours. On April 17 and 21 she goes to a "super mailbox" outside of her home. The investigators note pain behaviours "specifically about her neck and shoulders". On April 25 she is followed to a grocery store, accompanied by her daughter in law. The most demanding physical activity she engages in involves squatting down to retrieve a 2 kilogram bag of sugar. Otherwise she does very little.

The investigator notes pain behaviours. Later she is observed as they arrive home and unload groceries from the trunk. Ms. Paunova does little other than observe others doing the work.

Credibility Issues

At the heart of this dispute is the suspicion of Allstate, supported by the opinion and reports of Dr. Wyndowe that Ms. Paunova is not nearly as disabled as she appears and has mislead it and many of the assessors about the extent of her injuries and disabilities.

As noted earlier, Dr. Wyndowe has considerable concerns about the validity of Ms. Paunova's presentation, and in his second assessment report, described her credibility as only fair. However the examples that the Doctor relies on to support his view that Ms. Paunova is not credible are not always compelling and suggest a search for reasons to disbelieve her. For example, he apparently considered it more than strange that the family dog was taken to Bulgaria by her son because Ms. Paunova could no longer care for it, rather than the animal be put down. He wondered as well why, if Ms. Paunova's son was unemployed, he could not care for the dog.

Although not canvassed in the recitation of the evidence, evidently Ms. Paunova and her family appear to have maintained their connections to Bulgaria. Ms. Paunova has returned to that country on at least two occasions since the motor vehicle accident. She still has an apartment in Sofia. That the family might take the dog to Bulgaria rather than have it put to sleep may seem unusual to Dr. Wyndowe, however it does little to advance the view that Ms. Paunova is not to be believed.

Dr. Wyndowe is also critical of the other experts who have offered opinions in this case for accepting what was said to them by Ms. Paunova at face value. He also concluded that what Ms. Paunova has reported at various times is highly variable. For example in his April 3, 2003 report, Dr. Wyndowe relies on reports of others of what Ms. Paunova recalls just prior to, and immediately after the accident, to support his conclusion that what she says about any particular issue can be highly variable.

However on my reading of the source reports, with the exception of that of Dr. Soon-Shiong, an orthopaedic surgeon, the differences on this point are relatively minor. Here is what Dr. Wyndowe relies upon from the reports:

From Dr. McKenzie:

She was crossing the street to the bus stop and remembers starting across the street but does not remember being struck down.

Dr. Yufe:

She remembers crossing the street and decided to take bus No. 10 from Rivergrove Street to Mississauga Square One. The next thing Ms. Conover (sic) (Ms. Paunova) recalls is speaking to her son in the emergency room.

Dr. Edmeads:

Her last recollection is of crossing the intersection of Credit View and River Grove Avenues on her way to take the bus to go to work and checking her watch to see the time. Her next recollection is of being in a scanner in a hospital

Dr. Scherer:

She was walking to work and crossing a street when she was struck by a vehicle. Her next recollection is communicating with a family member in Credit Valley Hospital emergency.

Dr. Soon-Shiong:

... only remembers leaving her home and waking up in the emergency department.

From this data Dr. Wyndowe draws the conclusion that "there has been significant variability in the information obtained from Ms. Paunova." To my mind, Dr. Wyndowe's conclusion is not supported by the data he uses. To begin with the accounts of what took place that day are not dramatically different with the exception of that of Dr. Soon-Shiong. Some of the detail, present in some, is lacking in others but that may be explained by a host of factors. These are not transcripts or statements taken from Ms. Paunova. They are merely the records by other assessors of what Ms. Paunova may have said about a particular issue.

Ms. Paunova is minimally functional in English. At most of the assessments an interpreter would have been used. Dr. Wyndowe himself had considerable difficulties with an interpreter. Also, as Dr. Wyndowe points out, the response to a question is highly dependant on how it is asked. Dr. Wyndowe assumes that these other assessors asked open-ended questions.

Another factor that must be considered is the possibility that the assessors mis-recorded what was said. In this regard I note that Dr. Wyndowe's report of January 9, 2002 contains at least two likely errors. On two occasions in his report Dr. Wyndowe refers to Romania - the first being that the family dog was taken to Bulgaria, but then in the next line it is said that the dog was taken to Romania. Later in the same report Ms. Paunova is said to not be reading in English or Romanian. Another error is found in his April 2003 report. In his quotation from Dr. Yufe's November 10, 2000 report, Ms. Paunova has somehow become confused with a Ms. Conover.

The point is that Dr. Wyndowe is capable of making a mistake in recording what was said to him and not catching it despite his efforts to ensure that his reports are accurate. The same must be said for all of the medical practitioners who have opined on Ms. Paunova's condition.

Most importantly however, the significance of any particular "fact" would likely have been different for any given assessors and would effect what questions they asked about particular things and how they recorded the responses. For example Dr. Soon-Shiong's report of what was said by Ms. Paunova about the accident and events leading up to it, was markedly different than the others. It is entirely possible that the differences in what is recorded is related to his concerns and interests as an orthopaedic surgeon which would be different from those of a neurologist or psychiatrist.

In addition to its reliance upon Dr. Wyndowe's concerns with the veracity of Ms. Paunova's presentation to medical assessors, Allstate confronted Ms. Paunova with a number of alleged inconsistencies in reporting on various, largely, collateral issues contained in the reports of the many assessors who have seen Ms. Paunova.

One of these issues were the various reports of Ms. Paunova's hours of work. These reports are often vague and imprecise, but most would tend to leave the impression that Ms. Paunova's hours of work were significantly in excess of the 20 to at most 30 per week that she likely worked at Jimmy the Greek.

For example in Dr. Sunday's report dated June 7, 2001, under Work History we find:

She has worked full-time since arriving in Canada about five to six years ago, first at her son's pizza store, and for the past year as a cook and general kitchen helper at a fast food restaurant. She described having worked hard at the restaurant, doing cooking, cleaning and food preparation.

Similarly in Dr. Soon-Shiong's report, the following appears under the heading Pre-accident Job and Current Work Status:

This 55 year old divorced mother of a 34 year old son reports that she has been working as a kitchen worker at Jimmy the Greek Fast Food Restaurant in the Square One Mall in Mississauga for the last year. She previously worked as a cashier in her son's pizza shop, but was requested by her son to seek independent employment. ... She typically works six days per week, five to ten hours per day and her duties involve unloading materials from the delivery vehicle and packing them on shelves in he store. She is responsible for dishwashing, peeling carrots and tomatoes, and food preparation. This includes making Shishkabobs, cooking rice and Slovakia. (sic).

In a separate part of the same report Ms. Paunova's role in the pizza store is said to be pizza maker, not a cashier. The question arises whether this is an error on Dr. Soon-Shiong's part or did Ms. Paunova mis-speak herself during this assessment?

In yet another recitation of reported work patterns prior to the accident, we have the following from a report of Dr. Scherer dated March 12, 2003:

At the time of the accident, employment history indicates that Ms. Paunova worked in a Greek restaurant as a food preparer and cook. She continued in this capacity until the accident. She estimates that she would work 40 to 50 hours weekly. Thereafter, she would devote approximately one day to work for her son as a pizza maker. From 1997-99, she worked for a pizza franchise as pizza maker.

From Dr. Gerber's report dated March 28, 2003:

She then worked at Pizza Pizza for about five to six years. Her son had a Pizza Pizza franchise. At the time of the accident, she had two jobs. She was only working at Pizza Pizza on a Friday and the rest of the week she worked at the restaurant Jimmy the Greek, at Square One. She worked there five to six days per week. Sometimes when it was busy, she worked up to 10 hours per day. When it was quiet, she might only work about four hours per day. She did kitchen work and things like salad preparation.

From the Attendant Care DAC (October 2001):

Ms. Paunova reported that she worked at Jimmy the Greek restaurant in Square One Mall in Mississauga, from Monday to Thursday. Her hours varied from four to ten hours a day. Friday and Saturday she worked in her son's pizza place at Georgetown from 10:00 a.m. to 8:00 p.m. She did the housekeeping, cooking, gardening and walked the dogs.

The discrepancies Allstate relies upon evaporate when a fair comparison is made between these summaries and the evidence about Ms Paunova's work life taken as a whole. While it is true that Ms Paunova was employed part-time at Jimmy the Greek in that her hours of work were typically closer to 20 than 30 hours per week, it is also the case that on rare occasions, she would work there up to ten hours in a day. It is also the case that she worked at Pizza Pizza ten hours per days on Fridays.

By any measure, Ms. Paunova had a long work week if her unpaid work at Pizza Pizza and in the home are included. Although a cause for questioning, for the reasons set out earlier when discussing the weight to be given to records of what Ms. Paunova might have said to assessors about events surrounding the accident, I find that these hearsay summaries do not raise any substantial question about Ms Paunova's credibility.

Allstate also relied upon Ms. Paunova's Application for Benefits wherein it is recorded that she worked at the Jimmy the Greek restaurant for 40 hours per week. Ms. Paunova testified that while she signed the document, it was completed by her daughter-in-law. Beyond that Ms. Paunova claimed to have no concrete recollection of the form or how it was completed. She claims that at the time that the application was completed (June 23, 2000) she was quite un-well as a result of the injuries sustained in the accident.

It is apparent on the face of the document that it was completed by someone other than Ms. Paunova. She did testify that it was her thinking that the Pizza Pizza work should not have been recorded on the application as she was not paid for this time, and she assumed that her daughter-in-law would have felt the same, hence no mention of it in the Application. She had no explanation for the fact that the application indicated that she worked at Jimmy the Greek for forty hours per week.

These inaccuracies in the Application for Benefits are relied upon to impugn Ms. Paunova's credibility generally and for the specific purpose of supporting the claim for a repayment of income replacement benefits based on a material misrepresentation or fraud. I will deal with this latter point below when considering Allstate's claim to a repayment of benefits.

Allstate also questioned a number of entry in Ms. Paunova's banking records which were filed in evidence. In particular, Ms. Paunova was challenged about a deposit of approximately $8,000. Initially Ms. Paunova could not explain it, however later she recalled that it was very probably a sum paid to her by Allstate in settlement of her housekeeping and homemaking claims.

At the end of the day there were really only two substantial and concrete factual issues that could give rise to a substantial concern with Ms. Paunova's credibility. One being the admitted overpayment of her income replacement benefits.

When challenged on cross-examination about the apparent overpayment of income replacement benefits, Ms. Paunova admitted that when she began to receive the cheques, she thought that it was a lot of money and asked around of the people she knew from when she had walked the family dog. According to Ms. Paunova the advice of these people, although put more colourfully, was essentially that it was more likely that the insurance company would pay less rather than more than she was entitled to and that she should not worry. She accepted this advice and testified that she believed that Allstate was doing a good job and that what she was getting was what the law required. Ms. Paunova conceded that she never contacted Allstate to clarify this issue.

Ms. Paunova's testimony in this regard, particularly her description of the advice of her friends gave her has the ring of truth to it, and I accept it.

A more substantial question relates to the allegation that Ms. Paunova was employed as a child care worker after the accident. Towards the end of her cross-examination it was revealed that on her tax return, for the tax year 2002, Ms. Paunova had reported a sum of $6,000 as income for child care services. It was suggested that Ms. Paunova had provided such services to "Murph" and his spouse, giving rise to Ms. Paunova's articulating a somewhat bizarre theory of Murph's spouse's motivation for concocting the story (set out below). In any case, Ms. Paunova denied ever providing child care services either before or after the accident and in particular did not earn any income caring for children after the accident. "Murph" and/or his spouse was not called to support the suggestion that Ms. Paunova had provided childcare for them. Otherwise Ms. Paunova could offer no explanation for what the income tax return reported. She had no concrete recollection of filing income tax that year, but dimly recalled that a friend or acquaintance had assisted her.

Subsequently Mr. Amphone Mixaynath provided an affidavit and gave evidence at the hearing. He testified that he prepared Ms. Paunova's tax return. He testified that she had signed a blank return and that he completed it. He testified that the reported income for childcare was an error on his part. Ms. Paunova did not provide this information to him and had no knowledge of what he had done.

I accept the evidence of Ms. Paunova as it relates to the allegation that she provided child care services to 'Murph" or anyone else. As indicated there was no evidence other than the tax return offered in support of Allstate's contention. Allstate did not call "Murph" to substantiate the suggestion in cross-examination and the clear inference can be drawn that his evidence would not have been supportive. I also accept the evidence of Mr. Mixaynath that the error on Ms. Paunova's income tax return, if that is what it was, was his alone and other than Ms. Paunova signing a blank return, she played no part in this event.

Ms. Paunova's performance in the arbitration hearing, where she was subject to a very thorough and lengthy cross-examination comprising parts of seven days (from May 14 to July 30, 2003), was highly erratic, punctuated by emotional outbursts, apparently distressed pleas for help and periods of crying. An interpreter was available for Ms. Paunova's evidence and was required, although Ms. Paunova has some facility with English. However on many occasions during cross-examination, Ms. Paunova would switch from English to Bulgarian to Turkish in responding to questions. On several occasions she was observed to be muttering away to herself in Bulgarian or Turkish. On two occasions she began to disrobe to show the arbitrator her pain. At other times she would smile and laugh.

During the course of the hearing she could be heard to articulate somewhat bizarre explanations for suggestions made by counsel in cross-examination. For example as discussed earlier it was suggested in cross-examination that she had provided child care services to "Murph", a neighbour. She denied that this was the case and claimed that she never baby-sat for "Murph", other than perhaps watching his children for an hour or two once perhaps prior to the car accident. Ms. Paunova stated that "Murph's" spouse must have invented this lie because she thought "Murph wanted to have sex with" Ms. Paunova. On another occasion, she accused counsel for Allstate of passing a note to her, and on yet another occasion, reminded counsel for Allstate that she was an old woman, and that he was much too young and handsome for her.

The description of Ms. Paunova's performance on interview in Dr. Wyndowe's second report is remarkably similar to the kinds of behaviours witnessed in the hearing room over many days:

She wore jeans, lace up shoes, and a sweater underneath a ski jacket and a scarf wrapped several times around her neck. She kept this outfit on throughout the entire interview except towards the end when she undid the scarf. She walked into the interview room without a limp and at a normal rate. She sat down and remained sitting for most of the interview. On one occasion to demonstrate the various regions of her body that she felt "pulling", she sprang from her seat and turned round, presenting her back to me on which she demonstrated, with both hands, the various regions of muscular problems. Several times during the interview, she rubbed her head behind her right ear, mumbling about the pulling sensation.

She presented in a very dramatic fashion speaking loudly, gesturing in a very animated fashion, and frequently speaking through the attempts by the translator to interpret her comments. She came into the interview weeping, a condition that had started out in the waiting room as she was responding to the task of having to list her current complaints. For the first 15 to 20 minutes of the interview, she was in tears, at times wailing. After the crying session was over, she remained in apparently good spirits for the rest of the interview, except for one brief episode, quickly discouraged by myself and the interpreter, in which she started to cry again. At other times in the interview, she appeared to be in quite good spirits, laughing and joking with the interpreter only to reverse within a few minutes to rubbing various parts of her body and complaining about her pains. Ms. Paunova threw a great deal of energy into the declaration and manifestation of her symptoms. Her credibility is only fair.

Ms. Paunova's behaviour during the hearing deteriorated as time went on, although this was variable. However as she was on the stand on several occasions, spanning several days, it was possible to discern that as a period of questioning went on her behaviour would become more erratic with increasing emotional lability and inappropriate outbursts. On most occasions I was able, like Dr. Wyndowe, to control her behaviour by admonishments however at other times Ms. Paunova would simply be unable to continue.

Although over the top much of the time, I formed the impression over the many days of observing her that her patterns of behaviour was not a performance but reflected what she has become, largely, as a result of the car accident.

After careful consideration of the submissions Allstate, the evidence and presentation of Ms. Paunova and the opinion of Dr. Wyndowe in particular, I find that Ms. Paunova's presentation is real and not feigned.

Ms. Paunova's presentation during the hearing was often over the top to be sure. As I indicated earlier, Dr. Wyndowe's description of her performance in an interview with him is remarkably like what was observed in the hearing room day after day. His description and what I observed in the hearing room resonates with what other assessors have observed fairly consistently over the years since the accident. It is this consistency of presentation that supports a finding that, whatever its etiology, Ms. Paunova's performance is an accurate reflection of what she has become as a consequence of the accident.

I have also considered that of all of the assessors who have seen her over the years, only Dr. Wyndowe seriously questions her credibility. In assessing the weight to be given to Dr. Wyndowe's views on this point, I have also taken into account his "bias toward skepticism" when conducting an examination for an insurer.

Dr. Wyndowe testified that he takes a different approach when doing an insurer's examination than when he participates in a Designated Assessment. He testified that he understands, when doing an insurer's examination, that the insurer has a point of view about the insured person and that he brings that skepticism to his assessment. When questioned by counsel for Ms. Paunova, Dr. Wyndowe agreed that he carefully reviewed the material provided to him by Allstate before his assessments in order to be able to challenge Ms. Paunova. He also stated that when conducting an insurer's assessment he attempted to support the insurer's position within his "comfort level".

That said, while I accept her presentation as a valid one, I have also taken care in giving credit to any particular thing that Ms. Paunova might say. She does, as noted by several assessors, tend to exaggerate and catastrophise. She also is of the view that it is primarily the pain in her neck, back and her headaches that prevent her from participating in a useful life, however it is clear from all of the evidence that in addition to these issues there are significant emotional and behavioural impairments that impede her ability to return to her pre-accident level of activity. These latter impairments also affect the credit that can be given to particular statements made by her.

Entitlement to Income Replacement Benefits:

Ms. Paunova is entitled to income replacement benefits to the two year mark. On the basis of the evidence of every assessor, except for Dr. Wyndowe and Dr. Yufe, Ms. Paunova was, and continues to be unable to perform the essential tasks of her pre-accident employment at Jimmy the Greek. I accept this evidence. Even Dr. Wyndowe, who changed his opinion from the first to the second report, on his 'objective" scoring of her level of impairment found her to be marginally worse off on the second occasion. Dr. Yufe, while opining that Ms. Paunova was neurologically intact appeared to recognize that something was wrong with her.

As noted, the test for entitlement to benefits once 104 weeks of disability have passed becomes significantly more stringent. At this point, Ms. Paunova must show that she suffers a complete inability to engage in any employment for which she is reasonably suited by reason of education training and experience.

Allstate claims that Ms. Paunova has failed to meet the burden imposed on a claimant to benefits beyond the 104 week mark, as set out in Smillie and State Farm Mutual Automobile Insurance Company⁴, and other cases. I disagree.

Ms. Paunova continues to complain of headaches, neck and back pain, fatigue, dizzy spells, emotional lability that she claims prevent her from working. I have accepted that Ms. Paunova's presentation is a valid one. I accept her evidence that she believes herself unable to work. Although she believes that she is physically unable to work because of her pain, headaches and fatigue, I find that she also suffers from chronic pain syndrome, and emotional and behavioural problems as evidenced by her extreme emotional lability, paranoia, and inappropriate interactions. I find that all of these difficulties taken together prevent Ms. Paunova from engaging in any competitive employment for which she is reasonably suited by reason of her education, training and experience.

Dr. Kirsh has diagnosed Ms. Paunova as suffering from a chronic pain syndrome. In his opinion, she is unable to work competitively in any occupation for which she is suited. Drs. Dhanova, Gerber and, to some degree, Dr. Girgla concur in this opinion. Drs. Scherer and Edmeads, for different reasons concur in the view that Ms. Paunova is unable to be completely employed to any capacity. There is little in the way of vocational assessment included in any of these opinions. They are based on Ms. Paunova's chronic pain and manifest emotional and behavioural limitations as much as anything. I accept these opinions.

I do not accept Dr. Wyndowe's opinion for the reasons already set out. I accept Dr. Yufe's opinion that Ms. Paunova is neurologically intact and that from that perspective she is not prevented from working at something, however this opinion is of limited value in that there is no real suggestion that Ms. Paunova's difficulties are primarily neurological.

Accordingly and for all of the reasons set out earlier, Ms. Paunova is entitled to an income replacement benefit of $125 per week from March 2002 to June 14, 2002 and $185⁵ from June 15, 2002 to date and ongoing.

Repayment of Income Replacement Benefits:

Allstate seeks the repayment of some of the income replacement benefits paid to Ms. Paunova. Section 47(1)(a) of the Schedule allows insurers to claim the repayment of benefits in certain circumstances including where an error has been made by the insurer, the insured person or any other person. The insurer is required, by section 47(2)(a), to give to the person required to repay the benefit, "notice of the amount that is required to be repaid". The obligation to repay does not apply unless this notice is given within 12 months after the payment was made (section 47(3)).

As well, an insurer may seek repayment where the benefit has been paid as a result of wilful misrepresentation or fraud. Section 47(4) provides that an insurer is not limited by the notice requirement of section 47(2)(a) and section 47(3) where the benefit was paid as a result of wilful misrepresentation or fraud.

It is conceded that there was an overpayment made to Ms. Paunova. As indicated earlier, she admitted wondering why she was receiving the amount that she was, and conferred with friends and acquaintances about it. Her recollection of those conversations have the ring of truth to them and I have accepted that they took place. She also concedes that she did not contact Allstate about this issue, concluding, as she said, that Allstate was doing a good job for her and that the amount of income replacement benefit she was receiving was appropriate.

I find that the error in the calculation of the income replacement benefit flowed from the mis-statement of Ms. Paunova's weekly earnings, as set out in the Employer's Confirmation of Income (OCF-2). Mr. Tzafaridis, Ms. Paunova's employer, testified that he made the error of recording her bi-weekly income on the form which requires a weekly amount. He did so because that is how he paid his employees. He testified that it was an error on his part and that he never spoke to Ms. Paunova about it.

Allstate relied upon a letter dated December 6, 2001 as its notice pursuant to section 47(2)(a) of the Schedule. Based on this letter, Allstate seeks repayment of the overpayment between December 6, 2001 and the date benefits were terminated in February 2002. In the event that the December 6, 2001 letter does not constitute adequate notice, Allstate stated that it is entitled to the repayment in any event pursuant to section 47(4) because the quantum of the benefit was paid based on Ms. Paunova's wilful misrepresentation and fraud.

The letter which Allstate claims is proper notice, pursuant to section 47, is addressed to counsel for Ms. Paunova. The letter deals with two issues, a possible overpayment of income replacement benefits as well as a claim for transportation expenses. The material portion of the letter provides as follows:

Please be advised that in review of this file it appears that there may have been an error in the calculation of your client's income replacement benefits. Therefore I am requesting that you provide us with the pay stubs or copies of the cashed cheques for your client from Jimmy the Greek Restaurant.

Please be advised that I require this documentation for the period May 24, 2000 to June 20, 2000. Once this information is received I will recalculate your client's income replacement benefit, and advise promptly of any overpayment as per Section 47(1)(a) of the Statutory Accident Benefits Schedule.

This letter will serve as notice under Section 47(6) that interest will be charged on any amounts repayable to Allstate Insurance from December 6, 2000 to date and on going, until the income replacement benefit is recalculated and corrected accordingly. Therefore I ask that you provide this information a (sic) quickly as possible to avoid further overpayment to your client, which would have to be repaid to Allstate Insurance with interest.

It is clear from the December 6, 2001 letter that Allstate had some concerns that an error had been made. I have no evidence about what transpired after this letter was sent. In submissions it was suggested that the requested documentation was not forthcoming and that the issue was only resolved on the first day of hearing when Ms. Paunova's employer testified that he had completed the OCF-2 incorrectly, effectively doubling Ms. Paunova's weekly income. Mr. Tzafaridis was not asked about any failure on his part to cooperate in the provision of his records for Ms. Paunova.

The December 6, 2001 letter is not notice as contemplated by section 47(2). It is no more than a notice that Allstate had reason to believe there had been an overpayment. Moreover it clearly does not give notice of the amount that is required to be repaid as required by section 47(2)(a). The obligation to repay a benefit only arises, pursuant to section 47(3), where the notice required by 47(2)(a), "of the amount that is required to be repaid" is given within 12 months after the payment was made.

Accordingly unless Allstate can establish that the incorrect quantum of income replacement benefit was paid as a result of Ms. Paunova's wilful misrepresentation or fraud, pursuant to section 47(3), I can make no order with respect to the overpayment.

I have no direct evidence before me that Allstate relied on any statement, written or otherwise directly from Ms. Paunova in calculating the income replacement benefit. I have found, in all the circumstances, that it relied upon the OCF-2. Unlike the case of Joseph Rovella and State Farm Mutual Automobile Insurance Company,⁶ where the arbitrator found that the false income tax return deliberately prepared and filed by the applicant was relied upon by the insurer resulting in the error, no such evidence was tendered in this case.

The error in the OCF-2 is just that, an error, made by Mr. Tzafaridis. Ms. Paunova was not involved in any way with the content of the document. The Application for Benefits which was also incorrect, was not completed by Ms. Paunova, although signed by her. There is no evidence that this document influenced Allstate one way or the other in its calculation of the benefit. At best it might be said but wasn't, that the Application for Benefits might have delayed the discovery of the error in the OCF-2 because it would tend to confirm the mis-information provided by the Employer.

Although Ms. Paunova did admit that she wondered at the amount of income replacement benefit being paid to her, I am not persuaded that her failure to make enquiries of Allstate, in these circumstances, amounts to a wilful misrepresentation or fraud on her part.

Without doing a detailed analysis of what would constitute a wilful misrepresentation or fraud, I find that Ms. Paunova's inaction, other than consulting with friends and acquaintances about the issue, lacks the necessary volitional element inherent in the phrase "wilful misrepresentation of fraud". In short, I accept her evidence that the advice she received was that an insurer would never pay her less than she was entitled to and given her personal background as set out above, I find that it was not unreasonable on her part to accept that advice and do nothing further. Accordingly I find that her honest, albeit incorrect, belief that this was what the law provided for makes a finding of wilful misrepresentation or fraud impossible.

What has happened here is that a mistake was made. A mistake that was not caught for well over a year. Allstate had its remedies, pursuant to section 33, but for reasons not disclosed in the evidence it did not exercise those remedies.

Entitlement to Medical Expenses:

Ms. Paunova also seeks the payment pursuant to section 14 of the Schedule, for treatments provided by ACT. She claims entitlement to three treatment plans, only one of which was submitted to a DAC assessment.

Ms. Paunova began treatments shortly after the accident. A pattern soon developed wherein ACT would send in invoices for treatments before the supporting treatment plan was submitted. A series of OCF-9's were sent from Allstate to Ms. Paunova, in response to these invoices.

In a letter dated September 11, 2001, Allstate requests that a treatment plan be submitted for treatment "from March 22, 2001 onward. Please also include any future treatment recommendations beyond today's date for consideration."

In response, ACT apparently submitted (or re-submitted) the treatment plan dated May 20, 2001. I say apparently because I have no direct evidence one way or the other about when this treatment plan was delivered to Allstate other than the letter of September 11, 2001.

In any case, this treatment plan was referred to a Med-Rehab DAC and found not to be reasonable or necessary. The Med-Rehab DAC noted that Ms. Paunova had received 18 months of physiotherapy and massage, was reporting no change in her condition and in some respects claimed that she was getting worse, and concluded that she had attained maximum therapeutic benefit.

Ms. Paunova's evidence in respect of the treatment she received was unhelpful. Given her tendency to exaggerate and catastrophise, Ms. Paunova, at various times, indicated that the treatment was helping her, and at other times suggested that it was not. At best, her evidence was, that a course of massage treatments was helpful in keeping her moving for one or two days. Ali Faghani, the clinic director at ACT, for much of the time that Ms. Paunova was taking treatments testified that Ms. Paunova continued to make slow progress, with setbacks from time to time. Over time her overall her pain levels were somewhat reduced, her ROM in her upper right quadrant increased and her balance improved according to Mr. Faghani. Her reports of headache, dizziness and her activity level at home indicated to him that she was improving albeit slowly. In his opinion she had not yet reached maximum medical recovery as of the time that he left the clinic.

In March 2001, Ms. Paunova's supervised treatments were suspended for a three week period to assess her ability to maintain a self-directed exercise program. The attempt was not a success and this fact was communicated to Allstate, as indicated in the September 11, 2001 letter. Further treatments were provided to Ms. Paunova through to February 2002 although Mr. Faghani left the clinic on November 1, 2001.

Allstate argues, that whatever the merits of the treatment, it is not payable because ACT failed to provide treatment plans to support the claim in a timely manner. Ms. Paunova responds in two ways: First it was submitted that by its conduct Allstate acquiesced in this behaviour and in particular, states that the September 11, 2001 letter is an express waiver of the requirement to submit treatment plans generally, and the May 20, 2001 treatment plan in particular. Alternatively Ms. Paunova states that even if there is a technical breach of the provision, the statute provides no consequence for the failure to provide a treatment plan in a timely way, other than the general remedies available under section 33.

I am persuaded that Ms. Paunova has established that she is entitled to the benefit of the May 20, 2001 treatment plan that was submitted to a DAC. The DAC's conclusion was that Ms. Paunova had reached maximum medical recovery but does not clearly state how that conclusion was reached. Moreover, Ms. Ginter recognized the need for further treatment but concluded that Ms. Paunova should be able to engage in a self-directed exercise program. But for the fact that Ms. Paunova had attempted a self-directed program with little or no success, that recommendation of the DAC may well have been reasonable. However a self-directed program had been tried, a fact known to Allstate prior to the DAC being established. This suggests that Ms. Ginter's recommendation was somewhat premature. I also accept Mr. Faghani's evidence that Ms. Paunova was not an ideal candidate for a self directed program and that she continued to make some slow incremental progress through the time period covered by the treatment plan in dispute, and had, in his opinion, not yet achieved maximum therapeutic benefit.

As regards Allstate's process argument that the treatment was not payable because the supporting treatment plans were not submitted in a timely way, I agree with Ms. Paunova that in respect of the May 20, 2001 treatment plan, even assuming that it was not delivered in a timely way, by its letter of September 11, 2001 Allstate requested the treatment plan be submitted. It is not open to Allstate to now claim that it need not deal with the treatment plan on the merits. I also accept the submission that although the Schedule, in section 38(1), requires that a treatment plan be provided before an expense is incurred, it provided no express consequence for such a failure. I also note that at the time, section 38(22)⁷ provides for the possibility that an insurer may waive the requirement to provide a treatment plan.

The other treatment plans in issue are dated November 11, 2001 for treatment from August 8, 2001 to January 1, 2002; and, February 19, 2002 for treatments provided from February 15, 2002 to April 15, 2002. These appear not to have been responded to by Allstate and were not referred to a DAC as required.

As regards these latter treatment plans, Ms. Paunova states that they were not denied by Allstate and not referred to a DAC and must be deemed to be accepted. Ms. Paunova offered no authority for this proposition. In the absence of any principled basis for concluding to the contrary, I accept the reasoning of Arbitrator Palmer in Avdalimov and CGU Insurance Company of Canada⁸ In that case it was submitted that where an insurer fails to respond to a treatment plan in a timely manner it must be deemed to have accepted liability for the expense, the arbitrator concluded as follows:

With respect to the failure of CGU to respond in a timely fashion as required by the Schedule, especially with regard to treatment issues, the Schedule sets out no consequence nor suggests any penalty.

However, it may be that such conduct violates the unfair practices provisions of Part 18 of the Act, and Ontario Regulation 7/00 as "conduct resulting in unreasonable delay in ... the fair adjustment and settlement of claims" that may trigger an investigation and sanctions by the Superintendent.

I would add to this analysis that the Schedule did require at the material times that the insurer pay for a number of treatments at the outset of a claim even where there is a dispute about ultimate entitlement. It does not offend common sense that the absence of an express consequence for the failure of an insurer to respond promptly to later treatment requests, represents a legislative saw-off, leaving it to the parties to resolve their issues in the dispute resolution process for subsequent claims to treatment. It remains at the end of the day, that an insurer who unreasonably delayed a benefit by failing to promptly respond to a claim or refer it to a DAC as required may be liable to a special award pursuant to section 282(10) of the Act for such failures.

In the result, I find that Ms. Paunova has failed to establish entitlement to the benefit of these two latter treatment plans. As indicated earlier, Ms. Paunova's evidence was singularly unhelpful on this point. As for Mr. Faghani, while generally supportive of the view that Ms. Paunova was receiving some benefit from the treatments, he was not able to speak to these treatment plans in particular as he was increasingly uninvolved in Ms. Paunova's treatment in the Fall of 2001 and in fact left ACT before either treatment plan was even submitted to Allstate.

SECTION 68.1 ORDER:

Allstate also sought an order dismissing the claim to benefits Ms. Paunova advanced in relation to impairments allegedly flowing from a fall in February 2004. The circumstances surrounding these claims is set out in my interim decision dated March 10, 2004.

Just prior to the dates scheduled to resume the hearing to consider Ms. Paunova's fall and any alleged impairments related to that, counsel advised that he could no longer contact Ms. Paunova. Later it was learned that she had returned to Bulgaria, perhaps for treatment. She was said to be returning but then did not. After considerable discussion it was agreed that the parties would make closing arguments on the issues in dispute as of the conclusion of the evidence on December 19, 2003. At the same time, Allstate indicated its intention to bring a motion pursuant to section 68.1 of the Code, dismissing any claims arising from the alleged fall in February 2004. Submissions were made by Allstate in support of the motion on the understanding that Allstate would formally signal its intention to advance the argument in writing, giving rise to a Notice pursuant to section 68 to Ms. Paunova affording her a period of time to respond to the motion. Allstate did not request such an order in writing and accordingly Ms. Paunova has not been given Notice. Consequently, I have no authority to grant the order sought.

In any case I need not decide the issue, as it only ever arose in the event that Ms. Paunova was found not entitled to benefits at some point prior to the alleged fall in February 2004. I have found that Ms. Paunova is entitled to income replacement benefits from February 6, 2002 to date and ongoing.

EXPENSES:

The parties agreed to defer the issue of expenses pending the release of these reasons.

August 10, 2005

David Muir Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 111

FSCO A02-001087

BETWEEN:

EMA PAUNOVA

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 shall pay income replacement benefits from February 6, 2002 to date and ongoing, pursuant to sections 4, 5 and 6 of the Schedule, in the following amounts: From February 6, 2002 to June 14, 2002, $125 per week; From June 15, 2002 to date and ongoing, $185 per week.

2. Allstate shall pay a medical benefit for treatments set out in a treatment plan dated May 20, 2001 for services provided by the ACT Health Group, pursuant to section 14 of the Schedule.

3. Allstate shall pay interest on these amounts found to be owing, pursuant to section of 46 of the Schedule, subject to my order suspending interest from February 7, 2005 to May 9, 2005.

August 10, 2005

David Muir Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2See for example, Ex. 14 - Emergency Department Triage Assessment Flowsheet
3. 3American Medical Association - Guides to the Evaluation of Permanent Impairment (4th edition), 1993
4. 4(FSCO A02-000039, September 12, 2003)
5. 5Pursuant to section 6(1)(b) of the Schedule, a minimum income replacement benefit is provided for after 104 weeks.
6. 6(FSCO A01-001012, March 26, 2003)
7. 7Revoked O.Reg. 281/05, subsection 16(13),37
8. 8(FSCO A00-000343, May 25, 2001)