Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 173

FSCO A04-000670

BETWEEN:

ALLAHDAD RAZMJOU

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Denise Ashby

Heard:

July 4, 5, 6, 7 and 18, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Steven Sieger for Mr. Razmjou

Karla Falkeisen for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Allahdad Razmjou, was involved in a motor vehicle accident on August 27, 2001. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated payment of those benefits. The parties were unable to resolve their disputes through mediation, and Mr. Razmjou 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. Razmjou entitled to receive a weekly income replacement benefit from June 21, 2002 and ongoing to August 27, 2003, pursuant to section 4 of the Schedule?

2. Is Mr. Razmjou entitled to receive a weekly income replacement benefit from August 28, 2003 and ongoing, pursuant to subsection 5(2)(b) of the Schedule?

3. Is Mr. Razmjou entitled to receive a medical benefit for the following treatment:

(a) in respect of the Treatment Plan dated October 13, 2001, submitted by Ortho Rehab. Inc;

(b) in respect of Treatment Plans dated May 28 and July 10, 2002 submitted by Health Assist Clinic;

(c) in respect of Treatment Plans dated May 28 and July 10, 2002 submitted by Backcare & Sport Injuries Rehabilitation Centre pursuant to section 14 of the Schedule?

4. Is Mr. Razmjou entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

5. Is Wawanesa liable to pay Mr. Razmjou's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is Mr. Razmjou liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Mr. Razmjou is entitled to receive a weekly income replacement benefit based on a gross weekly income of $180.00 from June 21, 2002 to August 27, 2003, pursuant to section 4 of the Schedule.

2. Mr. Razmjou is not entitled to receive a weekly income replacement benefit ongoing from August 28, 2003, pursuant to subsection 5(2)(b) of the Schedule.

3. Mr. Razmjou is:

(a) not entitled to receive a medical benefit in respect of treatment provided pursuant to Ortho Rehab. Inc.'s Treatment Plan dated October 13, 2001;

(b) is entitled to receive a medical benefit for treatment provided during the 1 month period commencing May 28 and ending on June 27, 2002 in respect of Health Assist Clinic's Treatment Plan dated May 28, 2002. He is not entitled to treatment provided in respect of its Treatment Plan dated July 10, 2002; and

(c) is entitled to receive a medical benefit for treatment provided during the 1 month period commencing May 28 and ending on June 27, 2002 in respect of Backcare & Sport Injuries Rehabilitation Centre's Treatment Plan dated May 28, 2002. He is not entitled to treatment provided in respect of its Treatment Plan dated July 10, 2002;

pursuant to section 14 of the Schedule.

4. Mr. Razmjou is entitled to interest for the overdue payment of his income replacement benefits commencing June 21, 2002 and ongoing pursuant to subsection 46(2) of the Schedule.

5. Wawanesa is liable to pay Mr. Razmjou's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

6. Mr. Razmjou is not liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

INTRODUCTION:

On August 27, 2001, Mr. Razmjou was stopped at the intersection of Victoria Park Avenue and St. Clair Avenue when he was "rear-ended" by a delivery truck which forced his vehicle into the vehicle in front of him. Immediately following the accident he felt dizzy and disoriented and soon after he noticed pain in his neck, back and right hip and leg.

Mr. Razmjou claimed that as a consequence of the impairment he sustained, he was substantially disabled from working as a trainee installer of central vacuum cleaners and security systems for the 104 week post accident period ending August 27, 2003. Thereafter, Mr. Razmjou claimed his impairment met the test of a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

Mr. Razmjou claimed that as a consequence of the accident he was subject to dizziness. On April 28, 2002, he suffered a dizzy spell causing him to fall. As a result of the fall he fractured his ankle and exacerbated his back impairment necessitating further chiropractic treatment, acupuncture and physiotherapy provided by Backcare & Sport Injuries Rehabilitation Centre ("Backcare") and Health Assist Clinic ("Health Assist").

Wawanesa submits that, in the event it is found that Mr. Razmjou was employed at the time of the accident, he was able to return to his pre-accident employment on June 21, 2002, the date on which it terminated income replacement benefits. Further, the medical benefits claimed were not reasonable or necessary. In the alternative, if any of the treatment is found to be reasonable and necessary such treatment was not provided in respect of injuries arising from the car accident on August 27, 2001.

EVIDENCE AND ANALYSIS:

Income Replacement Benefits:

Section 4 of the Schedule

Section 4 of the Schedule provides:

4. The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

5. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment...

Wawanesa claimed that Mr. Razmjou was not employed at the time of the accident having left Alar-Vac Systems Inc. (Alar-Vac) on August 23, 2001. It relied on the Employer's Confirmation of Income dated September 28, 2001 which indicated that August 23, 2001 was his last day of work.² I accept the testimony of Mr. Razmjou and Mr. Mahmood Sabri, owner of Alar-Vac, that Mr. Razmjou was employed at the time of the accident and had accepted Mr. Sabri's offer of full time employment as an installer following the completion of a three-month training period.³

Entitlement to an income replacement benefit is determined by first establishing the essential tasks of the employment, defined as those skills which are prerequisites to being hired,⁴ then measuring the applicant's ability to perform those tasks.⁵

Both Mr. Razmjou and his employer, Mr. Sabri, testified that his job was fast paced. As a trainee, Mr. Razmjou was expected to keep the installer supplied with materials. This entailed frequent climbing of ladders or stairs, while carrying tools and materials. He was also required to assist with the installation by drilling holes in walls and floors. These tasks required frequent bending. A Work Site Assessment was conducted by Profile Evaluations on October 4, 2001. It set out the critical tasks of Mr. Razmjou's position.⁶ The Work Site Assessment stated it was essential that Mr. Razmajou be able to:

• work consistently in a fast paced environment

• frequently climb and stand on ladders

• engage in repetitive light lifting and carrying of tools and materials

• maintain sustained drilling with a drill described as a light to medium weight tool

• engage in repetitive reaching

• frequently lift, carry and handle tools classified as light to medium weight

• frequently lift, carry and handle materials classified as light to heavy weight

• frequently work in a kneeling, crouching or bending position to complete low level installations

• frequently reach and work above his head during overhead installations

I accept the combined evidence of Mr. Razmjou, Mr. Sabri and the Work Site Assessment and find that Mr. Razmjou was engaged in heavy work at the time of the accident.

Dr. S.W. Joseph Wong, physiatrist, testified on behalf of Mr. Razmjou. Dr. B. Alpert, orthopaedic surgeon, testified on behalf of Wawanesa. Both were qualified as experts in their respective fields.

Dr. Wong testified that Mr. Razmjou suffered from a back condition "spondylitis" which was a congenital vulnerability of the back. This vulnerability was exacerbated by the trauma of a previous motor vehicle accident on October 11, 1998. Mr. Razmjou recovered from those impediments sufficiently to engage in heavy work albeit with pain which he managed through medication and exercise. However, the injury sustained in August 27, 2001 resulted in Mr. Razmjou being unable to engage in the repetitive lifting, stooping, bending and drilling required of a vacuum installer.

Dr. Wong stated his opinion in his report dated February 9, 2004:

...I believe that the effects of the first motor vehicle accident had largely resolved, which is why he was able to attend the training program at the alarm installation company.

I believe that the majority of his injuries are from the second motor vehicle accident of 2002...

I believe that he will be required to work at a sedentary type of work, most likely on a part-time basis due to his chronic pain problems and injury involving his back.⁷

On March 28, 2002, Dr. Alpert conducted an insurer's examination in respect of the August 2001 accident. He had previously conducted a DAC assessment of Mr. Razmjou in respect of the previous accident in October 1998.

Dr. Alpert testified he did not recall having previously examined Mr. Razmjou when he examined him in respect of the second accident. His DAC assessment report dated January 5, 2001, concluded:

This patient appears to be disabled on a long term basis... and is unable to return to his pre-accident essential employment duties as a helper in the kitchen and server at a restaurant. His orthopedic restrictions include no repetitive bending or stooping, no prolonged sitting or driving, no forceful pushing or pulling, and no heavy lifting.⁸

As a result of his examination of Mr. Razmjou on March 28, 2002, Dr. Alpert formed the opinion that:

..., Mr. Razmjou does not demonstrate substantial residual orthopaedic impairment, long term disability, or indications for orthopaedic restrictions as a result of the accident of August 27, 2001. He is not prevented at present from returning to performing his pre August 27, 2001 accident essential employment duties, housekeeping duties, or activities of daily living. As long as Mr. Razmjou is well motivated to overcome any elements of pain focused behaviour, in order to realize his full functional potential, his orthopaedic prognosis is good, with respect to the accident of August 27, 2001.⁹

Dr. Alpert testified that in his opinion both reports are consistent. In his opinion, Mr. Razmjou had returned to his pre-August 27, 2001 condition. I do not accept that Dr. Alpert's two reports are consistent. Dr. Alpert was unaware of the pre-existing congenital condition when he examined Mr. Razmjou in March 2002. He was also unaware of his prior conclusion that Mr. Razmjou had a number of orthopaedic restrictions including no repetitive bending or stooping, no prolonged sitting or driving, no forceful pushing or pulling and no heavy lifting. Therefore, this assessment was based on an incomplete medical history.

In both his report and testimony he referred to the Quebec Task Force findings regarding projected healing periods for WAD II injuries. Notwithstanding his earlier report, Dr. Alpert maintained there was no objective orthopaedic reason why Mr. Razmjou would not be expected to heal within the Task Force time parameters. I find that Mr. Razmjou's self-limiting behaviour and focus on pain noted in Dr. Alpert's report was a consequence of Mr. Razmjou's continuing pain related to the injuries suffered in the accident on August 27, 2001.

Dr. Wong testified that Mr. Razmjou suffered from a congenital back condition "spondylitis"¹⁰Dr. Alpert's first report refers to L5 "spondylolysis".¹¹ Although each used a slightly different term, both were referring to a congenital abnormality of the spine. They agreed the abnormality could make Mr. Razmjou more vulnerable to a back injury and extend the healing time. I accept their evidence and find that Mr. Razmjou suffered a congenital back condition which caused him to be more vulnerable to back injury.

I prefer the evidence of Dr. Wong to that of Dr. Alpert. I find that Mr. Razmjou's vulnerability was exacerbated by the injuries sustained in the October 1998 accident. The impairment suffered in that accident had resolved sufficiently to permit him to engage in heavy work as a central vacuum and alarm system installation trainee. The injury to his back sustained in the August 27, 2001 accident substantially disabled Mr. Razmjou from performing the essential tasks of his employment as a vacuum and alarm system installer. Therefore, he is entitled to an income replacement benefit from June 21, 2002 to August 27, 2003.

Amount of Benefit

There was conflicting evidence with respect to the income Mr. Razmjou received while a trainee with Alar-Vac. The Employer's Confirmation of Income indicates the weekly income was $180.00.¹² A letter from Mr. Sabri dated October 4, 2001 confirms this amount.¹³ Further, he testified that he believed he paid Mr. Razmjou $180.00 per week during the training period. However, he had not brought his business records with him to confirm the amount and had no specific recollection.

A Toronto Community Services Income Reporting Statement for the period June 16, 2001 to July 15, 2001 indicates Mr. Razmjou had a gross income as a helper of $155.79.¹⁴ Mr. Razmjou's evidence was vague, contradictory and not helpful with respect to this document.

I accept the Employer's Confirmation of Income and the supporting evidence of Mr. Sabri's letter and testimony and find that Mr. Razmjou's weekly income was $180.00.

Claim for benefits post-104 Week

Mr. Razmjou submits that as a result of the accident he suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. He therefore returned to college and graduated as a Social Service Worker. He submits that he is therefore entitled to an ongoing income replacement benefit until he can obtain employment in his new profession.

Subsections 5(1) and (2)(b) provide:

5.(1) Subject to subsection (2), an income replacement benefit is payable during the period that the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit under section 4.

(2) The insurer is not required to pay an income replacement benefit,

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience;

Both Dr. Wong and Dr. Alpert testified that Mr. Razmjou could engage in light physical labour. Mr. Razmjou worked at minimum wage jobs prior to the accident. He testified that following the accident he studied social service work at college. This course had a practicum component at an agency which assisted immigrants. Mr. Razmjou testified that he was able to work full time with the agency because he was not required to sit at a desk for long hours.

Although Mr. Razmjou is to be congratulated for his efforts to improve his employability, those efforts were not necessitated by the injuries he sustained in the motor vehicle accident. Mr. Razmjou is therefore not entitled to an income replacement benefit from August 28, 2003 and ongoing.

Medical Benefits

Mr. Razmjou claims entitlement to medical benefits pursuant to section 14 of the Schedule for treatment provided by three treatment facilities.

Mr. Razmjou disputes the findings of the Medical Rehabilitation DAC that the treatment recommended by Ortho Rehab Inc. in a Treatment Plan dated October 13, 2001 was neither reasonable nor necessary.

As well, Mr. Razmjou claims for unquantified treatment provided by Health Assist Clinic and Backcare & Sport Injuries Rehabilitation Centre in respect of Treatment Plans dated May 28 and July 10, 2002. He testified that he fell downstairs in April 2002 as a result of dizziness he had been experiencing since the accident. He broke his ankle and re-injured his back in the fall. Mr. Razmjou claims for the treatment associated with those injuries for the period from May 2002 to August 2002.

Wawanesa submits that the disputed treatment provided by Ortho Rehab Inc. was not reasonable and necessary pursuant to the DAC findings. Further, the injuries sustained in the fall were unrelated to the accident and are therefore not compensable expenses.

In his testimony, Mr. Razmjou was unable to meaningfully distinguish the treatment provided by any of the three facilities. He testified that the treatment he received provided temporary pain relief. However, the improvement was not significantly greater than what he achieved through home exercise and taking Tylenol.

Ortho Rehab Inc.

Ortho Rehab. Inc.'s initial Treatment Plan dated August 31, 2001 was received by Wawanesa on October 5, 2001.¹⁵ On November 16, 2001, Wawanesa approved the recommended treatment.¹⁶

The disputed Treatment Plan of October 13, 2001 was received by Wawanesa on December 21, 2001. It recommended continuing the treatment set out in the first plan at a reduced frequency for a further six-week period. The estimated cost was $1,673.00. The treatment objective was to "reduce/eliminate pain."¹⁷ On January 2, 2002, Wawanesa denied the treatment. Mr. Razmjou was referred for a DAC assessment¹⁸ which was conducted on February 27, 2002.

The DAC assessors were Dr. T. John, physiatrist, and Dr. Robert Ogilvie, chiropractor. Dr. Ogilvie was called as a witness by Wawanesa. He testified that in his opinion the treatment was not reasonable and necessary because the impairment had resolved. Further, Mr. Razmjou reported no improvement from the massage received. Dr. Ogilvy recommended two sessions with either a kinesiologist or a physiotherapist for education in a comprehensive exercise program.¹⁹

There was no evidence provided to explain Ortho Rehab Inc.'s delay in submitting the treatment plans. Its report dated August 31, 2001 was not received by Wawanesa until October 17, 2001.²⁰Notwithstanding the delay Wawanesa approved the first treatment plan. The second treatment plan was essentially a duplication of the first with a slight reduction in frequency. There was no analysis of what had been achieved in the first six weeks of treatment and what might be achieved by further treatment.

Mr. Razmjou relies on the arbitrator's finding in Violi and General Accident Assurance Co. of Canada, (FSCO A98-000670, August 20, 1999), and confirmed on appeal (FSCO P99-00047, September 27, 2000), that pain relief is a reasonable objective of treatment to support his claim for medical benefits. While I agree that pain relief is a reasonable objective of treatment, Mr. Razmjou's evidence was there was no appreciable difference or his own efforts were more efficacious than the treatment provided by the facilities.

On the basis of the foregoing, I find that the treatment recommended by Ortho Rehab Inc. in the Treatment Plan of October 13, 2001 was not reasonable and necessary.

Health Assist Clinic and Backcare & Sport Injuries Rehabilitation Centre

Ms. C. Tanco, an employee of Health Assist, and Ms. M. Ceno, an employee of Backcare, testified on behalf of their respective employers. Both have responsibility for the accounts receivable. As administrative staff they were not qualified to give evidence as to whether the treatment provided by the facilities was reasonable and necessary. Further, their testimony added nothing to what was set out in the Statements of Account of each facility. Therefore, I have attached no weight to their evidence and have relied on the documentary evidence.

The facilities submitted Treatment Plans dated May 28, 2002. Health Assist recommended $2,500.00 of chiropractic treatment and soft tissue therapy for a left ankle sprain, cervico-thoracic [myofasical] pain and lumbo-sacral myofascial pain over a 1 month period.²¹Backcare recommended $3,300.00 of physiotherapy and rehabilitation exercise for a left ankle sprain, cervico-thoracic [myofascial] pain and lumbo-sacral myofascial pain over a 1 month period.²²

Wawanesa relied on the Medical Rehabilitation DAC report of February 27, 2002 in respect of Ortho Rehab. Inc. to deny both Treatment Plans dated May 28, 2002. Wawanesa reasoned that the DAC had determined that similar treatment recommended by Ortho Rehab Inc. was unreasonable and not necessary, therefore the same could be said of the treatment recommended by Health Assist Clinic and Backcare.²³

Health Assist Clinic and Backcare submitted further treatment plans dated July 10, 2002 for additional treatment for the same impairments.²⁴ The Treatment Plans were received by Wawanesa on July 23, 2002. On July 31, 2002, Wawanesa denied both plans relying on Dr. Alpert's assessment of March 28, 2002.²⁵ Mr. Razmjou was offered a DAC assessment in respect of both Treatment Plans dated July 10, 2002. There is no evidence that Mr. Razmjou attended a further DAC.

The treatment received by Mr. Razmjou from both facilities falls within the ambit of the provisions of subsection 14(2) of the Schedule. Mr. Razmjou testified that he experienced dizziness between the accident and the fall in April 2002. His evidence was equivocal regarding the dizziness and what caused his fall. In this testimony, Mr. Razmjou variously attributed his fall to accident related dizziness, hunger related dizziness and old age. The medical records indicate Mr. Razmjou reported dizziness immediately following the accident. However, there is no reference to dizziness at a time proximate to his fall in April 2002.²⁶ I find that the available medical evidence does not support a causal connection between the accident and Mr. Razmjou's fall in April 2002. Therefore, treatment for the ankle injury is not compensable under the policy.

However, Mr. Razmjou continued to have an accident related impairment to his back in April 2002.

Health Assist's Statement of Account indicates chiropractic treatment, acupuncture and soft tissue therapy were provided from May 28, 2002 to August 19, 2002. However, the account does not indicate what treatment was provided in respect of his back or ankle.²⁷ Wawanesa submitted its payment summary which indicates it made payments to Health Assist. However, the summary does not specify the date or purpose of the payment.²⁸

Similarly, the Backcare Statement of Account specifies the date and type of treatment but does not indicate which impairment was treated.²⁹ Again, Wawanesa's payment summary reflects payments to Backcare but does not specify the date or purpose of the payment. However, in respect of Backcare, an OCF 21 was submitted which enumerates the treatment provided and notes the injury reference number. However, those numbers do not comport with those set out in the Treatment Plan.

The procedure for claiming a medical benefit is set out in section 38 of the Schedule. Wawanesa informed Mr. Razmjou that it would not pay for the services set out in the Treatment Plans of May 28, 2002 pursuant to subsection 38(8)1. It was then necessary to comply with the procedure set out in subsection 38(12) as follows:

If the notice under paragraph 1 of subsection (8) does not indicate that the insurer will pay for all the goods and services contemplated by the treatment plan,

(a) the insurer shall require the insured person to be assessed by a designated assessment centre in accordance with section 43 in respect of the goods and services the insurer will not pay for; and

(b) the insurer shall include in the notice under paragraph 1 of subsection (8),

(i) a statement of the insurer's reasons for not agreeing to pay for all goods and services contemplated by the treatment plan, and

(ii) notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

In Pintucci and Jevco Insurance Company, the arbitrator held that medical benefits were payable by the insurer, who had failed to comply with the procedures under the Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996. Arbitrator Palmer reasoned:

It is important to the integrity of the operation of the Schedule that the parties comply with its terms. Prompt, continuing access to reasonable and necessary treatment, even while a dispute is underway, is a hallmark of the system. The initial gatekeepers of the treatment system are health practitioners, who are regulated health professionals, and the designated assessment centres. ...Insurers cannot flout the terms relating to the provision of and payment for supplementary medical and rehabilitation benefits and substitute in their stead adjustment procedures that they find more convenient or suitable to their purpose.³⁰

The Arbitrator commented that Commission arbitrators have been criticized by the courts for interpreting provisions of the predecessor to the 1994 Schedule in "a too conservative manner." She went on to cite Mr. Justice Laskin's admonition in Bapoo v. Co-operators General Insurance Company, 1997 CanLII 6320 (ON CA), 36 O.R.(3rd) 616 (C.A.) that: "[a]voiding unjust or unacceptable results is an essential part of the court's task in interpreting statutory language."³¹

More recently the Supreme Court of Canada has held that the automobile insurance regime is consumer protection legislation.³² The complexity of the present Schedule has been significantly increased by substantive amendments. A consumer, especially an unsophisticated one, has a right to rely on his or her insurer to follow the legislation's mandated procedures for denying benefits. The DAC assessment in respect of Ortho Rehab. Inc.'s Treatment Plan dated October 13, 2001 does not relieve Wawanesa of its obligations pursuant to subsection 38(12) of the Schedule.

Mr. Razmjou had fallen and injured his ankle and exacerbated the existing impairment to his back, in the interim between February 27, 2002 when the DAC assessment was conducted and May 28, 2002 when treatment commenced. I accept that Mr. Razmjou believed that his injuries in the fall were directly related to the accident notwithstanding his equivocating testimony. He attended treatment at the recommendation of the orthopaedic surgeon who treated his ankle. The treating chiropractor and physiotherapist at Health Assist and Backcare both reinforced this advice by preparing treatment plans and providing treatment. I agree with Arbitrator Palmer's reasoning in Pintucci that an applicant who pursues treatment in good faith at the recommendation of his treating practitioners should not be held responsible for the cost where the insurer has failed to comply with the procedures in the Schedule. Mr. Razmjou was not afforded the opportunity to obtain a neutral DAC assessment. Therefore, I find that Mr. Razmjou is entitled to the month of treatment recommended in both facilities' treatment plans dated May 28, 2002.

Mr. Razmjou was offered DAC assessments of the Treatment Plans dated July 10, 2002. He did not attend those assessments. As the ankle injury was not a direct result of the accident the treatment of his ankle is not compensable.

Mr. Razmjou testified that his exercise program together with Tylenol was as effective as the treatment provided by the facilities in relieving his pain. Therefore, I find that the treatment recommended in respect of his neck and back was not reasonable or necessary.

The evidence before me does not permit a quantification of the outstanding treatment in respect of the May 28, 2002 Treatment Plans. If the parties are unable to agree then they may make an application to reopen this portion of the hearing pursuant to the Dispute Resolution Practice Code.

Interest

Mr. Razmjou is entitled to interest in respect of his outstanding benefits as follows:

(1) income replacement benefit commencing June 21, 2002 and ongoing;

(2) in respect of:

(a) the treatment provided by Health Assist from 30 days after receiving an invoice for the treatment provided from May 28, 2002 to June 27, 2002; and

(b) the treatment provided by Backcare from 30 days after receiving an invoice for the treatment provided from May 28, 2002 to June 27, 2002;

pursuant to subsection 46(2) of the Schedule.

CONCLUSION:

In conclusion, Mr. Razmjou suffered an impairment as a result of the accident on August 27, 2001 which rendered him substantially disabled from performing the essential duties of his employment as a trainee central vacuum cleaner and security system installer. He is therefore entitled to an income replacement benefit, pursuant to section 4 of the Schedule, calculated on a gross weekly income of $180.00 from the date of termination, June 21, 2002 to August 27, 2003. Mr. Razmjou is not entitled to an income replacement benefit from August 28, 2003 onward.

Mr. Razmjou is entitled to a medical benefit, pursuant to section 14 of the Schedule, for treatments provided by Health Assist and Backcare for the period May 28, 2002 to June 27, 2002, in respect of the treatment plans dated May 28, 2002. He is not entitled to a medical benefit in respect of treatment recommended by Health Assist or Backcare in their treatment plans dated July 10, 2002.

Mr. Razmjou is entitled to interest on the outstanding benefits pursuant to subsection 46(2) of the Schedule.

EXPENSES:

Mr. Razmjou has been substantially successful in asserting his claim. Therefore, I exercise my discretion to award Mr. Razmjou his expenses incurred in this hearing. If the parties are unable to agree on the quantum of his expenses, they may make an application pursuant to the Dispute Resolution Practice Code.

December 13, 2005

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 173

FSCO A04-000670

BETWEEN:

ALLAHDAD RAZMJOU

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. Razmjou is entitled to receive a weekly income replacement benefit for the period from June 21, 2002 to August 27, 2003, based on a gross weekly income of $180.00, pursuant to section 4 of the Schedule.

2. Mr. Razmjou is not entitled to receive a weekly income replacement benefit ongoing from August 28, 2003, pursuant to subsection 5(2)(b) of the Schedule.

3. Mr. Razmjou is:

(a) not entitled to receive a medical benefit in respect of treatment provided pursuant to Ortho Rehab. Inc.'s Treatment Plan dated October 13, 2001;

(b) is entitled to receive a medical benefit for treatment provided during the 1 month period commencing May 28 and ending on June 27, 2002 in respect of Health Assist Clinic's Treatment Plan dated May 28, 2002. He is not entitled to treatment provided in respect of its Treatment Plan dated July 10, 2002; and (c) is entitled to receive a medical benefit for treatment provided during the 1 month period commencing May 28 and ending on June 27, 2002 in respect of Backcare & Sport Injuries Rehabilitation Centre's Treatment Plan dated May 28, 2002. He is not entitled to treatment provided in respect of its Treatment Plan dated July 10, 2002; pursuant to section 14 of the Schedule.

4. Mr. Razmjou is entitled to interest in respect of his outstanding benefits as follows:

(a) income replacement benefit commencing June 21, 2002 and ongoing;

(b) in respect of:

(i) the treatment provided by Health Assist from 30 days after receiving an invoice for the treatment provided from May 28, 2002 to June 27, 2002; and

(ii) the treatment provided by Backcare from 30 days after receiving an invoice for the treatment provided from May 28, 2002 to June 27, 2002;

pursuant to subsection 46(2) of the Schedule.

5. Wawanesa is liable to pay Mr. Razmjou's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

6. Mr. Razmjou is not liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

December 13, 2005

Denise Ashby Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Insurer's Document Brief, Volume 1, Tab 21
3. 3Ibid, Tab 22
4. 4Lopez and State Farm Mutual Automobile Insurance Company, (OIC A97-000378, June 16, 1998), page 4, upheld on appeal (FSCO P98-00031, September 20, 1999)
5. 5Flemming and Wawanesa Mutual Insurance, (OIC A-000406, April 28, 1992), page 9
6. 6Applicant's Arbitration Brief, Tab 5
7. 7Applicant's Arbitration Brief, Tab 10, page 12 Note: the reference to the accident of 2002 is a typographical error as the report heading on page 1 clearly identifies the 2 accident dates as October 11, 1998 and August 27, 2001
8. 8Applicant's Arbitration Brief, Tab 1, page 5
9. 9Insurer's Medical Brief, Volume 1, Tab 7
10. 10Applicant's Arbitration Brief, Tab 10, page 2
11. 11Ibid, Tab 1, page 5
12. 12Insurer's Document Brief, Volume 1, Tab 21
13. 13Ibid, Tab 22
14. 14Exhibit 11
15. 15Ibid, Tab 11(A)
16. 16Insurer's Document Brief, Volume 1, Tab 5
17. 17Insurer's Medical Brief, Volume 1, Tab 11(B)
18. 18Insurer's Document Brief, Volume 1, Tab 8
19. 19Insurer's Medical Brief, Volume 1, Tab 8 page 16
20. 20Applicant's Arbitration Brief, Tab 2
21. 21Ibid, Tab 12(A)
22. 22Ibid, Tab 13(A)
23. 23Insurer's Document Brief, Volume 1, Tab 14
24. 24Insurer's Medical Brief, Volume 1 Tab 12(B) and Tab 13(B)
25. 25Ibid, Tab 15, Note: The adjuster refers to Treatment Plans dated June 10, 2002 in both letters - it is apparent that this was an administrative error and refers to the Plans dated July 10, 2002.
26. 26Exhibits 3, 4, 6 and 13
27. 27Insurer's Document Brief, Volume 1, Tab 18
28. 28Ibid, Tab 4
29. 29Ibid, Tab 17
30. 30(FSCO A97-000755, January 7, 1999), page 15
31. 31Ibid, page 17
32. 32Smith v. Co-operators General Insurance Co. 2002 SCC 30, [2002] 2 S.C.R. 129