Neutral Citation: 2005 ONFSCDRS 97
FSCO A02-001225
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
STANISLAV KANAREITSEV
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
REASONS FOR DECISION
Before:
Judith Killoran
Heard:
January 12, 13, 14 and 15, 2004, June 21, 22, 23, 24, 25, 28, 29, and 30, 2004 at the Financial Services Commission of Ontario.
Written submissions on October 25, 2004, November 30, 2004, December 13, 2004, March 22, 2005 and March 31, 2005.
Appearances:
Jadranka Cavrak and Henry Goldentuler for Mr. Kanareitsev
Karen McGuire for TTC Insurance Company Limited
Issues:
The Applicant, Stanislav Kanareitsev, was injured in a motor vehicle accident on July 12, 2001. Mr. Kanareitsev was riding his bicycle while travelling eastbound on Dundas Street West when he was struck by a streetcar. He applied for and received statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Kanareitsev 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:
Did Mr. Kanareitsev sustain an impairment within the meaning of section 2 of the Schedule as a result of the accident?
Is Mr. Kanareitsev entitled to payment of non-earner benefits from January 21, 2002 at $185.00 per week to date and ongoing, pursuant to section 12 of the Schedule?
Is Mr. Kanareitsev entitled to the following medical benefits pursuant to section 14 of the Schedule: (a) physiotherapy treatment provided by Sports Medicine and Rehabilitation Clinics from February 6, 2002 to November 1, 2002 in the amount of $4,500; (b) acupuncture treatment provided by Sports Medicine and Rehabilitation Clinics from October 5, 2001 to November 30, 2001 in the amount of $495; and (c) psychological treatment provided by Accident Injury Assessment Centre from March 1, 2002 to November 1, 2002 in the amount of $5,040?
Is Mr. Kanareitsev entitled to payment of attendant care benefits from April 9, 2002 to July 12, 2003 in the amount of $2,215.93 per month as recommended in the occupational therapy re-assessment report of Sophie Bielawski dated April 30, 2002, pursuant to section 16 of the Schedule? During the hearing, the TTC paid attendant care benefits to April 9, 2002.
Is Mr. Kanareitsev entitled to payment of $100 weekly for housekeeping and home maintenance services from November 9, 2001 to July 12, 2003, pursuant to section 22 of the Schedule?
Is Mr. Kanareitsev entitled to payment for the outstanding cost of reports, pursuant to section 24 of the Schedule: (a) reports prepared by Sports Medicine and Rehabilitation Clinics from January 30, 2002 to December 11, 2003 in the amount of $5,150; (b) treatment plans prepared by Sports Medicine and Rehabilitation Clinics from January 10, 2002 to October 15, 2002 in the amount of $339.50; (c) psychological reports prepared by Accident Injury Assessment Centre from January 17, 2002 to October 2, 2002 in the amount of $3,500; (d) treatment plans prepared by Accident Injury Assessment Centre from January 17, 2002 to September 17, 2002 in the amount of $169.75; (e) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated July 30, 2001, in the amount of $1,320; (f) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated April 30, 2002, in the amount of $2,590.57, which includes the cost of assistive devices recommended; (g) rheumatology assessment report prepared by Dr. Pruzanski, dated November 28, 2001, in the amount of $950; and (h) radiology review and assessment reports, prepared by Dr. Marciniak, dated August 21, 2002 and October 2, 2002, in the amount of $1,750?
Is Mr. Kanareitsev entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Is the TTC liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Kanareitsev?
Is the either party liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Result:
Mr. Kanareitsev sustained an impairment within the meaning of section 2 of the Schedule as a result of the accident.
Mr. Kanareitsev is entitled to payment of non-earner benefits from January 21, 2002 at $185.00 per week to date and ongoing, pursuant to section 12 of the Schedule.
Mr. Kanareitsev is entitled to the following medical benefits pursuant to section 14 of the Schedule: (a) physiotherapy treatment provided by Sports Medicine and Rehabilitation Clinics from February 6, 2002 to November 1, 2002 in the amount of $4,500; (b) acupuncture treatment provided by Sports Medicine and Rehabilitation Clinics from October 5, 2001 to November 30, 2001 in the amount of $495; and (c) psychological treatment provided by Accident Injury Assessment Centre from March 1, 2002 to November 1, 2002 in the amount of $5,580.
Mr. Kanareitsev is entitled to payment of attendant care benefits from April 9, 2002 to July 12, 2003 in the amount of $2,215.93 per month as recommended in the occupational therapy re-assessment report of Sophie Bielawski, dated April 30, 2002, pursuant to section 16 of the Schedule.
Mr. Kanareitsev is entitled to payment of $100 weekly for housekeeping and home maintenance services from November 9, 2001 to July 12, 2003, pursuant to section 22 of the Schedule.
Mr. Kanareitsev is entitled to payment for the cost of reports, pursuant to section 24 of the Schedule: (a) reports prepared by Sports Medicine and Rehabilitation Clinics from January 30, 2002 to December 11, 2003 in the amount of $5,150; (b) treatment plans prepared by Sports Medicine and Rehabilitation Clinics from January 10, 2002 to October 15, 2002 in the amount of $339.50; (c) psychological reports prepared by Accident Injury Assessment Centre from January 17, 2002 to October 2, 2002 in the amount of $3,500; (d) treatment plans prepared by Accident Injury Assessment Centre from January 17, 2002 to September 17, 2002 in the amount of $169.75; (e) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated July 30, 2001 in the amount of $1,320, if unpaid; (f) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated April 30, 2002, in the amount of $2,470, which includes the cost of assistive devices recommended; (g) rheumatology assessment report prepared by Dr. Pruzanski, dated November 28, 2001, in the amount of $950; and (h) radiology review and assessment reports, prepared by Dr. Marciniak, dated August 21, 2002 and October 2, 2002 in the amount of $1,750.
Mr. Kanareitsev is entitled to interest on the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
The TTC is liable to pay a special award of $10,000 pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Kanareitsev.
The TTC is liable to pay Mr. Kanareitsev's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.
EVIDENCE AND ANALYSIS:
Background
Stanislav Kanareitsev was born in Ukraine in 1932. Initially, he worked as an engineer at a manufacturing plant. In 1966, Mr. Kanareitsev left his job and worked for a Kiev studio making documentary movies. He wrote scripts for science films and wrote and published stories.
On June 26, 1990, Mr. Kanareitsev arrived with his son in Montreal. Shortly thereafter, they moved to Toronto, claimed refugee status and later, obtained Canadian citizenship. Mr. Kanareitsev worked at a company that specialized in making parcels. He received a small pension from the company when he retired.
1. Did Mr. Kanareitsev sustain an impairment within the meaning of section 2 of the Schedule as a result of the accident?
The Schedule defines "impairment" as "a loss or abnormality of a psychological, physiological or anatomical structure or function." The major issue before me was not whether Mr. Kanareitsev is impaired but whether his impairment is a result of the 2001 accident. Mr. Kanareitsev claimed that the accident was the cause of his impairment while the TTC insisted that Mr. Kanareitsev's impairment was caused by the natural progression of his polyneuropathy and subsequent falls, rather than the accident.
Neuropathy is defined as "a functional disturbance or pathological change in the peripheral nervous system ..." Polyneuropathy is "neuropathy of several peripheral nerves simultaneously."2
2. Is Mr. Kanareitsev entitled to payment of non-earner benefits from January 21, 2002 at $185.00 per week to date and ongoing, pursuant to section 12 of the Schedule?
Section 12 (1) 1. of the Schedule states:
The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:
- The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
Past Medical History
In 1980, Mr. Kanareitsev was beaten by the militia in Ukraine for which he claimed no lasting injuries. The TTC challenged this version of events and submitted that he might have lingering injuries as a result of the beating, particularly with his right hand.
In 1994, a car struck the handlebars of Mr. Kanareitsev's bicycle. Mr. Kanareitsev fell onto the car and then to the ground. He hit the left side of his head, his knees and his elbows. He lost consciousness. Mr. Kanareitsev needed assistance with most tasks following the 1994 accident and walked with a cane. As time passed, he required less and less help. His symptoms resolved and in the spring of 1997, Dr. Donskoy advised Mr. Kanareitsev that he had recovered from the accident. He had no dizziness, fewer headaches, less lower back pain and no problems with sitting.
Dr. Donskoy referred Mr. Kanareitsev for a neurological consultation with Dr. Birnbaum in April 1994 after he noticed the wasting of his upper extremities.3The EMG studies completed in December 2, 1994 showed evidence of a chronic neurogenic process. A chronic neuropathy was diagnosed and a referral was made to Dr. Vera Bril, another neurologist, for a second opinion.4
Dr. Bril observed in September 1995 that Mr. Kanareitsev was unable to get out of a chair without assistance and likely had "significant axonal neuropathy." Dr. Bril noted that Mr. Kanareitsev had a generalized weakness of all his extremities but had improved somewhat with exercise. Dr. Bril confirmed the diagnosis of axonal polyneuropathy which was asymptomatic and that "these [neck and dizziness] symptoms were attributed to a post-traumatic neurosis."
Dr. Donskoy also referred Mr. Kanareitsev to a physiatrist, Dr. Veronica Kekosz. Dr. Kekosz examined Mr. Kanareitsev in 1995 and 1996 for which she prepared reports dated May 2, 1995, September 7, 1995 and November 11, 1996.5
On May 2, 1995, Dr. Kekosz reported that "at present Mr. Kanareitsev is still experiencing occasional headaches and dizziness. He seems to drift towards the right. He does use a cane and fortunately has not had any falls for the last 3-4 months." Her report noted that Mr. Kanareitsev had been receiving treatment at the International Management Health Care Centre for a year. Apparently, Mr. Kanareitsev had a good response to massage for dizziness and headaches. He was also doing some exercises at home and receiving chiropractic management.
In her report of September 7, 1995, Dr. Kekosz stated that Mr. Kanareitsev's symptoms were improving and that he was not as dizzy as previously. In her report of November 11, 1996, Dr. Kekosz stated that since Mr. Kanareitsev's visit one-year previously, there was an improvement in his range of movement, his strength and his balance. The atrophy of the muscles of his hands did not appear to have progressed since he was last assessed. Mr. Kanareitsev's episodes of dizziness were less frequent, he was not taking any form of treatment, he was using the TTC for transportation, and he did not have any new medical problems. All the reports confirmed ongoing improvement. Mr. Kanareitsev's energy level was better and he was sleeping well while becoming more independent in his daily activities.
The disability assessment report of Dr. Gabriel A. Vadasz6 described Mr. Kanareitsev’s typical day in 1996:
This claimant stated to me that he stays home most of the time and at present he is engaged in writing a book. He can manage with most activities of daily living but has difficulty walking too far, some difficulty getting in and out of chairs, some difficulty walking up the stairs, and sitting or standing for prolonged periods of time.
Dr. Vadasz concluded that Mr. Kanareitsev’s complaints of dizziness did not constitute a total disability to carry out the regular duties and responsibilities of an unemployed person. He noted that he was busy writing a book which required a significant amount of concentration.
Photographs filed at the hearing7 show Mr. Kanareitsev swimming, balancing himself on a fence near the lakefront and bicycling with one hand while waving with the other. The pictures were taken from July 1997 to August 1997 and illustrate his physical abilities during that period of time.
After the autumn of 1999, Mr. Kanareitsev lived alone in his apartment and cared for himself. In January 2000, as a result of a slip and fall, friends took him to see a general practitioner, Dr. Roger Philipps-Gange, as Dr. Donskoy was on vacation. This incident8 resulted in a stiff neck and difficulty walking due to ankle pain. Dr. Philipps-Gange testified that Mr. Kanareitsev was brought to his office by friends who were assisting him with buying and cooking food.
Dr. Philipps-Gange testified about his examinations of Mr. Kanareitsev on January 31, April 14 and May 15, 2000. At that time, Mr. Kanareitsev lived alone and was independent. He did not complain of pain, dizziness, weakness, knee pain, shoulder or lower back pain or headaches. His complaints were limited to his neck and ankle. Dr. Philipps-Gange noted that Mr. Kanareitsev was unsteady on his feet, presumably due to the ankle injury.
Dr. Philipps-Gange prescribed physiotherapy which Mr. Kanareitsev received at West Toronto Physiotherapy from June 2000 to March 2001 to address his left ankle strain and neck pain.9 The notes of West Toronto Physiotherapy10 stated that Mr. Kanareitsev had no sensation in the ankle area and had some wasting of muscle bulk.
Pre-accident Activities
A number of witnesses, including Mr. Kanareitsev, testified about his pre-accident activities. Mr. Kanareitsev testified that before the 2001 accident, he lived alone for two years in a two-bedroom apartment. As his son moved out in 1999, he was responsible for all his housekeeping, shopping, cooking, cleaning and personal care.
Peter Kanareitsev, Mr. Kanareitsev's son, is 29 years old. He is a graduate student in software architecture at the University of Toronto. He testified about his father's other accidents and injuries and his slow but full recovery before the July 12, 2001 accident. His testimony was consistent with that of his father. He described his father as being completely independent in all activities of daily living prior to the 2001 accident. According to him, his father lived on his own, was very social with many friends, went to school and regularly rode his bicycle. His father was also writing a book about his life at the time of the accident.
Mr. Kanareitsev's friend, Mira Pacer, testified that she met Mr. Kanareitsev at the English as a Second Language ("ESL") course held at the Polish Community Centre. She attended the same classes as Mr. Kanareitsev every day from Monday to Friday. She testified that Mr. Kanareitsev's attendance was better than hers and he attended classes during the week immediately prior to the 2001 accident. He lived 2-3 km from the school, to which he travelled by bicycle. She went on bicycle rides with him twice in 2001 and testified that his stamina was excellent. In fact, she experienced more fatigue than him when riding. She described him as an older person who was young at heart.
Another friend, Mark Krynski, testified that he has lived two doors from Mr. Kanareitsev's apartment since 1999. He saw Mr. Kanareitsev almost every day before the accident. He commented that Mr. Kanareitsev was a social person who lived by himself and functioned independently. Indeed, he bicycled frequently with Mr. Kanareitsev for 2-3 hour long trips. He testified about particular bicycle trips of 5-8 km. In 2000, they took bicycle trips which were 25 km both ways. He observed that Mr. Kanareitsev was always full of energy and was attending school. He did not complain of lower back pain, dizziness, neck pain, or weakness before the accident.
Ms. Galena Romanyk has been Mr. Kanareitsev's friend since 1996. She testified that they lived near each other so she saw him approximately twice a week before the accident. She knew that his son had lived with him but that he was living alone at the time of the accident. She was aware of his earlier accidents and his attendance at ESL classes.
Ms. Romanyk testified that Mr. Kanareitsev had used a cane while being treated after an earlier accident but he was not using a cane immediately prior to the 2001 accident. She testified that Mr. Kanareitsev had no problems with dizziness or riding his bicycle before the accident nor was she aware of any health problems. She described Mr. Kanareitsev as a close friend who had many other friends. She went with him to restaurants, parks, grocery shopping and dancing. She described him as a very intelligent, interesting personality. She testified that she had observed him exercising on his balcony with weights, swimming in the lake and riding his bicycle for distances of 6 km prior to the accident. Ms. Romanyk took photographs and videotapes which show Mr. Kanareitsev at social gatherings with friends.11
Maria Hrynenko testified that she was a close friend of Mr. Kanareitsev who had known him for over 10 years as they live on the same floor. She described him as someone who did not require help with his daily activities, bicycled regularly and did not use a cane in the one-year period leading up to the accident.
Nikolai Hrynenko, Maria's husband, knew Mr. Kanareitsev for over 15 years. Before the accident, he testified that Mr. Kanareitsev conducted himself like a young fellow who did not have health problems or problems with balance. He saw him ride his bicycle frequently and function independently with all of his activities.
The evidence of Mr. Kanareitsev, Peter Kanareitsev, Mira Pacer, Mark Krynski, Galena Romanyk, Maria and Nikolai Hrynenko is consistent, other than for minor discrepancies. This evidence establishes that Mr. Kanareitsev's activities before the accident were the following:
He studied English from 9 a.m. to 3 p.m., starting in November 1998.
He cooked, cleaned, changed beds, dressed, washed dishes, did laundry, grocery shopping and fixed things in his apartment.
His daily routine included waking early in the morning, exercising with his stationary bicycle and weights, taking a shower and going to school.
He rode his bicycle to school in good and bad weather.
He attended the library regularly.
He visited his friends frequently.
He went to monthly concerts.
He rode fairly long distances at a time on his bicycle.
He was busy writing his autobiography both by hand and on his computer.
Mr. Kanareitsev stated at the hearing that "my best doctor was my bicycle."
The Accident
Mr. Kanareitsev testified that on July 12, 2001, he was riding his bicycle while returning home from his friend's house. He was travelling eastbound on Dundas Street West with his helmet on. There were parked cars in the curb lane of Dundas Street West. Mr. Kanareitsev noticed that the door of a parked vehicle opened and then closed partially. To avoid hitting the open door, Mr. Kanareitsev rode to the left, onto the streetcar track. He heard a streetcar approaching from behind with its bell ringing. He tried to swerve to the right but his wheel got stuck in the streetcar rail. Consequently, the streetcar struck the rear wheel of Mr. Kanareitsev's bicycle which caused him to be thrown forward into the air and fall to the ground.
Mr. Kanareitsev testified that he fell on his right side, hit his head and lost consciousness. Police and ambulance came to the scene of the accident and Mr. Kanareitsev was taken to the hospital in an ambulance. A friend picked him up at the hospital, stayed with him all night and, on the Monday following the accident, helped bring him to Dr. Donskoy's office. Mr. Kanareitsev could not move for a couple of days and was lying in bed at home. He could not stand because his right leg and the right side of his body hurt so much. He was prescribed painkillers and advised to start physiotherapy near his home immediately. By the end of the month, he was attending three times a week at Sports Medicine and Rehabilitation Clinics ( "Sports Medicine").
Mr. Maurice Baldwin, the operator of the streetcar, prepared a report for the divisional superintendent about the accident.12 He stated that while he was proceeding along Dundas Street West, he observed a cyclist riding very close to the streetcar track whereupon he slowed to 5 km/hour. The cyclist turned right in front of the streetcar which resulted in the operator putting the streetcar into emergency and making contact with the cyclist.
Mr. Baldwin testified that Mr. Kanareitsev caught the front of the streetcar on the bumper and fell down. He stated that he hit his body, namely his shoulder, against the streetcar, not his bicycle. After the impact, Mr. Kanareitsev's body went to the right and he fell down with his helmet on.
Mr. Frank Jaworski, another TTC operator, also testified about the accident. He was standing at the front of the streetcar and witnessed it. He testified that Mr. Kanareitsev was not wearing a helmet, his bicycle had racing handlebars, he was riding on the sidewalk and moved to the road beside the streetcar and from there to the track. He also testified that the impact was on the body of the cyclist, namely the upper left torso by the shoulder, not the bicycle. Mr. Kanareitsev fell forward face first and did not move after he went down. According to Mr. Jaworski, the streetcar was travelling faster than 10 km/hour before the impact.
Although there are some inconsistencies, both Maurice Baldwin and Frank Jaworski testified that the impact of the streetcar with Mr. Kanareitsev was severe. In his report, Mr. Baldwin stated that the streetcar rear-ended Mr. Kanareitsev but in his testimony, he stated that the impact was on the right front side of the streetcar. I find that it is probable that the streetcar rear-ended Mr. Kanareitsev's bicycle at 5-10 km/hour, causing Mr. Kanareitsev to fly through the air and hit the ground hard on his right side.
Post-Accident
Mr. Kanareitsev testified about the following injuries and problems following his 2001 accident:
His head bothers him on the right side.When he moves his body, the pain moves into his eye and then into his head
It is very difficult to hold his neck straight and his head needs to be held in his hands. Dressing and undressing causes neck pain and he is not able to brush his teeth properly. He is afraid to go to public places to eat because he has to hold his head with his hand.
For the first few days after the accident, he suffered from severe upper back pain. This pain decreased with time and physiotherapy but is still present. He is unable to do his usual activities around the house because of the pain.
Front right shoulder pain.
Right elbow, right arm pain. He experiences pain when he moves his arm and pain when he lies down even if he does not move his arm. The pain has concentrated in some areas. He is unable to lift his arm. When he wakes up, his arm is numb. This causes problems with eating because he is not able to hold a spoon. He needs help putting on his winter coat because of the pain. He cannot cut his nails with his right hand and needs help with shaving.
Lower back pain, more on the right side. It is difficult to lie on his right side. He has problems rising from a chair because of low back pain.
Heart problems. Sharp pains in his chest started after the accident, sometime in September 2001.
Right leg and knee symptoms improved after the accident but to date, Mr. Kanareitsev testified he experiences sharp, severe pain when he gets up and attempts to walk. If he should fall, he is unable to get up on his own. He began to use a wheelchair in January or February 2002. He is unable to use public transit due to his mobility problems.
Mr. Kanareitsev described his activities of daily living. Before the 2001 accident, he could bathe, groom, dress and undress himself and go grocery shopping. After the accident, he required assistance with all of these activities. As his wheelchair is too wide for the entrance to his bathroom, he regularly urinates in a big tomato can.
Mr. Kanareitsev testified that physiotherapy, massage and acupuncture helped him with his injuries. Although his condition improved with time, Mr. Kanareitsev is still not able to watch television and eat on his own. He is unable to concentrate for any length of time. After the accident, Mr. Kanareitsev tried to continue writing his book but was only able to write small notes, which he often discards. His neighbour, Nikolai, did everything for him after the accident. He shopped for him, spent days with him in his apartment, took him to the bathroom, and prepared food for him.
Mr. Kanareitsev described his continual fatigue due to constant pain. He keeps the door to his apartment open 24 hours a day so that his neighbours can come and check on him.
Peter Kanareitsev testified about the devastating impact that the accident had on his father. His father was unable to walk without assistance, never rode his bicycle again, could not clean his house, could not do grocery shopping, and needed help with his personal care, from washing his hair to taking a bath. He lived with his father from 1990-1999. He confirmed that although his father’s 1994 accident left him with injuries that persisted for about three years, his father gradually regained his abilities and was functioning normally by 1997.
Post-accident, Mr. Kanareitsev's friend, Ms. Pacer, testified that she saw him at his home once, one or two months after the accident. She called him at home when he did not attend school. He informed her that he had had an accident and he never returned to school. She communicated with him mostly by telephone. When Ms. Pacer visited Mr. Kanareitsev with her son after the accident, she found that Mr. Kanareitsev was transformed into an old man. He was lying in bed, unable to get up. Another friend gave him some liquid which he had to drink through a straw. He could not sit up and "looked sick and broken." She never saw him ride his bicycle again.
Post-accident, Mr. Krynski testified that on his first visit to Mr. Kanareitsev he looked like an old man. He was "a different person than before." Mr. Kanareitsev could not walk and required help getting to the washroom. He observed that his condition was getting worse and he needed to hold onto the furniture to walk.
Mr. Krynski continues to see Mr. Kanareitsev 3-4 times a week and helps him by getting his mail and buying his groceries. He saw him using a walker inside his apartment and a wheelchair outside his apartment.
Ms. Romanyk visited Mr. Kanareitsev at home the day after the accident. She described him as blue, with bruises all over his legs and hands, vomiting and screaming that he was in pain everywhere. Post-accident, Ms. Romanyk never saw Mr. Kanareitsev ride his bicycle again. She testified that he requires assistance walking, cannot go grocery shopping and needs an electric wheelchair. He rejects all social invitations and is a different man, very depressed. She also was not aware of any neck problems before the accident and testified that one year before July 12, 2001, he had no problems with walking or riding his bicycle. She observed a substantial deterioration in his condition in the year following the accident and has not seen him outside his apartment since the accident. Two weeks before the arbitration, she visited Mr. Kanareitsev in order to bring him some honey and he was in his wheelchair. In Ms. Romanyk's words: "The accident kind of killed him." She explained that she meant figuratively, both physically and mentally.
Ms. Hrynenko first visited Mr. Kanareitsev in his apartment shortly after the accident. He was confined to bed and did not sit up. He complained of pain in the back of his head, spine and shoulders. She believed that he was very depressed and frightened and these feelings were reflected in his face. She saw him using a walker and later, a wheelchair.
Mr. Nikolai Hrynenko and his wife assisted Mr. Kanareitsev with housekeeping and attendant care post-accident. Mr. Hrynenko observed that Mr. Kanareitsev had no balance and required help going to the washroom. Prior to the accident, he noticed no problems with his neck or arms and confirmed that he frequently rode his bicycle. He denied any knowledge of Mr. Kanareitsev falling down frequently before the 2001 accident.
The TTC filed surveillance reports and a video of Mr. Kanareitsev. The surveillance of Mr. Kanareitsev was conducted on August 22-24, 2001, October 16-22, 2001 and January 4, 2002.
The surveillance supported Mr. Kanareitsev’s evidence and that of his witnesses about the limited nature of his activities. The surveillance showed Mr. Kanareitsev on his balcony attempting stretching exercises and taking taxis to medical treatments. The investigator stated in his first report that Mr. Kanareitsev was "observed to demonstrate obvious indications of physical impairment and restriction in mobility, specifically, in his walking and use of his right arm."13A similar observation was made in the following two reports.
Medical Evidence
Mr. Kanareitsev was transferred to St. Joseph's Health Centre by ambulance following the accident. During the assessment, it was noted that Mr. Kanareitsev had been wearing a helmet while riding his bicycle, he was hit by a streetcar, and had injuries to his right shoulder, right knee, right elbow and right thigh.14 Mr. Kanareitsev was taken home by a friend. The registration record for Emergency stated that the order was "to explain to patient regarding head injury that he needs to stay with a friend." His friend stayed with him and woke him up every two to three hours throughout the night, as instructed by the hospital.
West Park Healthcare Centre - Medical/Rehabilitation DAC Assessment[^15]
On February 17, February 19, and February 21, 2003, Mr. Kanareitsev attended a multidisciplinary medical/ rehabilitation DAC assessment at West Park Healthcare Centre. The DAC assessment was conducted by Dr. Terry Hunt, a psychologist, Dr. Michael Devlin, a physiatrist, and Ms. Debbie Westbrook, a physiotherapist. The assessors found the treatment plans in dispute not to be reasonable and necessary.
At the hearing, Dr. Michael Devlin was qualified as a physiatrist who has a history of dealing with neurological impairments. He conducted an assessment of Mr. Kanareitsev on February 19, 2003.
Dr. Devlin testified that Mr. Kanareitsev had degenerative polyneuropathy, which progresses slowly and naturally over time. Both upper and lower limbs were affected symmetrically. He acknowledged that Mr. Kanareitsev was capable of riding a bicycle at the time of the accident. In Dr. Devlin's opinion, it was not clear whether the treatment Mr. Kanareitsev received was helpful to him. According to Dr. Devlin, Mr. Kanareitsev's only injuries were to his lower back, inside right knee with knee pain, and neck pain on the right which was worse than the left. Mr. Kanareitsev's right knee had no strength and he could not fully straighten it. The MRI findings were normal for a person of his age, showing degenerative disease but there was no evidence of lower back injury which would cause ongoing lower back pain. Dr. Devlin concluded that Mr. Kanareitsev's current impairments and disability are not accident related but are the result of the natural progression of his pre-existing polyneuropathy.
Dr. Devlin testified that his examination of Mr. Kanareitsev was for 40-60 minutes. He disputed that there was any evidence that Mr. Kanareitsev hit his head. Dr. Devlin insisted that one cannot injure the peripheral nerve in the shoulder without dislocation. When questioned about the medical literature which stated that nerve damage can occur from a depression of the shoulder, he changed his opinion. However, he denied that the mechanism of injury was such that Mr. Kanareitsev sustained a blow to the shoulder similar to a depression to the shoulder from the top down. He conceded that depression of the shoulder would cause pain, which was one of Mr. Kanareitsev's complaints. However, Dr. Devlin did not believe that it was necessary to have his shoulder examined by an orthopaedic surgeon or to have an MRI of the shoulder.
Dr. Devlin testified that Mr. Kanareitsev's complaints related to his knee were all soft tissue injuries which should have healed. He conceded that chronic pain could be a significant contributing factor to Mr. Kanareitsev's disability. He also admitted that a person who is 69 years old and can ride a bicycle for 4-5 km at a time, five days per week, is strong and in very good shape.
Family Physician - Dr. Alex Donskoy
Dr. Donskoy saw Mr. Kanareitsev shortly after his 2001 accident. He observed that Mr. Kanareitsev was anxious and distressed with some scarring on his nose. He experienced pain in his upper and lower back muscles with a decreased range of movement in his neck and right shoulder. There was bruising on his left thigh and right scapular muscle. His head was bruised and he experienced headaches. By the end of 2001, Mr. Kanareitsev had persistent headaches, neck pain and right knee pain. He could not participate in his pre-accident activities. As a result, he was confined to his apartment and was lonely. Dr. Donskoy testified that his falls after the 2001 accident were caused by dizziness, lower back pain, right hip and right knee problems.
The last time that Dr. Donskoy saw Mr. Kanareitsev was on December 10, 2003, when he had pain in his right knee together with constant pain in his neck and right shoulder. His psychological symptoms were more significant in that he felt increasingly helpless and useless.
In his report dated April 1, 200216, Dr. Donskoy commented on the 1994 accident:
In that accident the patient sustained injuries to his head, neck, elbows, upper back, left SI area, left hip, and both knees. He also suffered from headaches, dizziness, anxiety and depression.
It was noted initially that the patient had generalized wasting of muscles (predating that accident), especially in the upper extremities.
The patient saw Dr. Birnbaum and Dr. Brill [sic] (neurologists) and Dr. Kekosz (physiatrist). Several investigations were done ...
The conclusion was that the patient had some kind of chronic neuropathy cause of which was not clear. The neuropathy affected more sensory than motor functions ...
The patient’s main problems related to the previous accident were dizziness, neck pain, left hip pain, and left sided back pain.
Dr. Donskoy commented that Mr. Kanareitsev's generalized muscle wasting and neuropathy would affect recovery.17 Also, he stated that Mr. Kanareitsev has not been able to perform any activities requiring concentration, repeated neck and back movements, prolonged sitting, standing, lifting, or heavy activities with right upper and left lower extremities. Mr. Kanareitsev was prescribed Tylenol 2 and referred for physiotherapy, massage and psychological assessments.
Dr. Donskoy compared Mr. Kanareitsev's injuries in the 1994 accident with those of the 2001 accident. After the 1994 accident, Mr. Kanareitsev's dizziness and headaches improved significantly with time and his right shoulder improved with no pain. His low back improved, as did his neck and his right knee pain which resolved before the 2001 accident. His headaches improved with time and his falls due to dizziness decreased after the 1994 accident and before the 2001 accident. From 1998 onwards, he used the subway and was able to bicycle. Mr. Kanareitsev's last visit with Dr. Donskoy before the 2001 accident was in February 1999.
After the 2001 accident, Dr. Donskoy testified that Mr. Kanareitsev suffered from dizziness, left hip pain, his right shoulder was aggravated and his range of movement decreased, upper back pain, low back pain mostly right side, his neck pain increased especially on the right side, right knee pain and his right knee gave way and was painful all the time. Mr. Kanareitsev experienced headaches, mostly in the evening, had vision problems and right eye pain. He had frequent falls because of dizziness, weakness, low back pain, left hip pain and right knee pain. His depression was aggravated and he suffered from anxiety and distress. He used his cane frequently but continued to deteriorate and later, he used his wheelchair to get around. The range of motion of his neck and hands grew worse with more significant physical complaints and findings. He was not able to ride his bicycle.
Dr. Donskoy stated in his April 1, 2002 report18:
The patient had (as discussed in details above) significant physical and psychological problems predating this accident. However, he was able to adequately, i.e. taking care of himself at home and taking care of his house chores enjoying activities such as walking and riding bicycle.
Currently the patient is not able to do these activities due to his accident injuries. The patient will require extensive physical and psychological rehabilitation to achieve his pre-accidental state.
Although Dr. Brill (sic) noted in her report that the patient could not get off his chair without using his arms, the patient still got off the chair quite quickly throughout my assessments predating this accident. Although now this is slightly improving, he still has a great deal of difficulties getting off chair and this is much worse since this accident.
On April 2, 2003, in his follow-up report,19 Dr. Donskoy stated that Mr. Kanareitsev continued to have psychological problems, along with difficulties with his right shoulder, lower back, right knee and neck. Dr. Donskoy concluded that Mr. Kanareitsev sustained serious physical and psychological injuries from the 2001 accident.
Dr. Brian Alpert
On March 27, 2003 and October 2, 2003, Mr. Kanareitsev attended an orthopaedic assessment with Dr. Alpert. The assessment report20 stated that Mr. Kanareitsev suffers from pre-existing degenerative disc disease in his cervical spine and lumbar spine which was aggravated and worsened by the motor vehicle accident, leading to the potential cervical and lumbar radicular syndromes with pressure upon the adjacent neural tissue. Dr. Alpert concluded:
Mr. Kanareitsev remains disabled on a long term basis and unable to perform his pre-accident essential activities of daily living, including self-care tasks, housekeeping duties, and/or caregiving duties, as a result of the residual musculoskeletal impairments sustained to his lumbar spine, cervical spine, trapezii, right shoulder, and right knee, due to the motor vehicle accident of July 12, 2001. His long-term orthopaedic physical restrictions include no prolonged standing or walking, no prolonged sitting, no bending, no twisting, and no heavy lifting ...
Mr. Kanareitsev's orthopaedic prognosis remains guarded, with respect to the motor vehicle accident of July 12, 2001.
Conclusion Re: Impairment and Non-earner Benefits
The TTC submitted that Mr. Kanareitsev's impairment stemmed from his polyneuropathy and not the 2001 accident. According to the TTC, the impairments which impinge upon Mr. Kanareitsev's ability to perform his activities of daily living and carry out housekeeping and self-care tasks relate to his neurological status.
The TTC's evidence, particularly that of Dr. Michael Devlin, supports the above position. The TTC maintains that Mr. Kanareitsev has not presented evidence from health professionals with either expertise in the Applicant's disease or specializing in the treatment of people with polyneuropathy. The TTC insists that there is an absence of a correct history from the Applicant, a tendency to rely upon the Applicant's complaints rather than findings on examination, lack of proper notes documenting the Applicant's response to treatment together with bias and lack of expertise in relation to Mr. Kanareitsev's underlying neuropathy.
I accept the evidence presented by the TTC that Mr. Kanareitsev did not disclose to a number of medical examiners and assessors that he was involved in an accident in 1994. It was Dr.
Donskoy's opinion that, to the extent that Mr. Kanareitsev gave medical examiners inaccurate information, it was due to his memory problems. I accept that any gaps in the information related to medical examiners by Mr. Kanareitsev should be attributed to oversight or forgetfulness, rather than misrepresentation. I base this on my observations of Mr. Kanareitsev in the course of his testimony. He appeared to be genuine and forthright, although suffering from memory difficulties.
Causation issues were considered in Correia and TTC Insurance21 where the arbitrator found:
Remoteness questions can arise where there is no dispute that the insured person was involved in an "accident," but the insurer disputes the extent of its responsibility for the consequences of the accident. In many FSCO cases, the insured person initially sustained a relatively minor soft tissue injury, but then developed complications ... FSCO adjudicators have found entitlement where the accident significantly or materially contributed to the insured person's disability (in the case of weekly benefits) or impairment (for other types of benefits). The significant or material contribution test is consistent with common law principles of causation.
Consistent with the reasoning in Correia, I find that Mr. Kanareitsev must establish that the accident significantly or materially contributed to his impairment.
The evidence before me was that Mr. Kanareitsev had recovered from his accident in 1994 with no impairment. I prefer the evidence of Dr. Donskoy, Dr. Alpert and the lay witnesses to that of Dr. Devlin. Due to his ongoing treatment of Mr. Kanareitsev, Dr. Donskoy was more familiar with his particular circumstances, including the chronic pain from which he suffered following the 2001 accident. I accept the evidence of Mr. Kanareitsev and his witnesses that, prior to the accident, Mr. Kanareitsev was a very healthy, fit 69 year old man who rode his bicycle frequently and participated in a full, satisfying social life while living independently. I am not persuaded that if Mr. Kanareitsev were suffering from disabling symptoms from his polyneuropathy that he would have continued to lead such a vigorous, active life prior to the accident, including riding his bicycle.
While Mr. Kanareitsev had some prior accidents and medical problems, I find that the 2001 accident was the cause of his impairment, not any pre-existing condition. The testimony was fairly consistent that Mr. Kanareitsev was struck from behind by a streetcar while riding his bicycle. He sustained serious injuries which deteriorated and worsened over time so that he relied on a walker and a wheelchair for mobility. There was not only a change in his physical condition but also his psychological condition. Mr. Kanareitsev demonstrated by his evidence that the accident caused physical and psychological injuries. These injuries materially contributed to the immediate disability and subsequent onset of chronic pain and deterioration of his polyneuropathy. I find that the accident materially contributed to his impairment.
Having found that the 2001 accident is the source of Mr. Kanareitsev's impairment, it is necessary to determine whether his impairment resulted in a complete inability to carry on a normal life. I find that as Mr. Kanareitsev is wheelchair bound and completely disabled from almost all of his pre-accident daily activities, he suffers from a complete inability to carry on a normal life. A comparison of Mr. Kanareitsev's activities prior to the accident with those after the accident leads to this inescapable conclusion. Consequently, Mr. Kanareitsev is entitled to the payment of non-earner benefits from January 21, 2002 and ongoing.
3. Is Mr. Kanareitsev entitled to the following medical benefits pursuant to section 14 of the Schedule:
(a) physiotherapy treatment provided by Sports Medicine and Rehabilitation Clinics from February 6, 2002 to November 1, 2002 in the amount of $4,500;
(b) acupuncture treatment provided by Sports Medicine and Rehabilitation Clinics from October 5, 2001 to November 30, 2001 in the amount of $495; and
(c) psychological treatment provided by Accident Injury Assessment Centre from March 1, 2002 to November 1, 2002 in the amount of $4,890.
Subsection 14(1) of the Schedule requires that "the insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit." Subsection 14(2) of the Schedule requires that the medical benefit "shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for ... (b) chiropractic, psychological, occupational therapy and physiotherapy services ..."
(a) Physiotherapy Treatment
Dr. Donskoy referred Mr. Kanareitsev for physiotherapy treatment at Sports Medicine.22 The intial intake form was completed by Mr. Filin, who speaks Russian, and Dr. Grado, a physiotherapist. Dr. Marc Marciniak at Sports Medicine referred Mr. Kanareitsev for psychological treatment with Dr. Grzyb and to Ms. Bielawski for an occupational therapy report in order to have a more comprehensive review of Mr. Kanareitsev's needs and disabilities to help with recovery. Dr. Kekosz, a physiatrist, provided a report for the purpose of determining causation, the extent of impairment, disability, and appropriate treatment.
Mr. Kanareitsev attended physiotherapy, massage and acupuncture treatment at Sports Medicine from July 16, 2001 to November 1, 2002.
The intake form filled out at the clinic described the July 12, 2001 accident.23It stated that Mr. Kanareitsev was rear-ended by a streetcar while riding his bicycle. He flew 3 metres in the air from the impact and landed on his right side. The following injuries were itemized: loss of consciousness, head injury, headaches, dizziness, nausea, confusion, neck, right shoulder, right arm and right elbow pain, right arm weakness, difficulty breathing, low back pain, neck pain, left and right side, right leg weakness, right wrist pain, balance problem, vision problems and decrease in appetite. Also noted were psychological complaints of sadness, restlessness, memory problems, concentration problems, irritability, anxiety, fatigue, anger and angry outbursts.
Dr. Marciniak's preliminary report dated August 3, 2001 documented Mr. Kanareitsev's assessment at his first visit on July 16, 2001 and his re-assessments on July 26, 2001 and August 3, 2001. He confirmed that Mr. Kanareitsev had been referred by his family doctor, Dr. Donskoy. Dr. Marciniak observed that Mr. Kanareitsev had problems with transportation and another individual brought him to the clinic on July 16, 2001.
Dr. Marciniak diagnosed the following injuries as a result of the accident: headaches, neck pain, right shoulder pain, right elbow pain, bilateral arm, wrist and hand weakness, right side domination, low back pain, right leg weakness, head injury, chest wall pains and psychological complaints of anxiety, sadness, restlessness, memory problems, difficulty concentrating, irritability, anger and angry outbursts. Dr. Marciniak concluded that Mr. Kanareitsev appeared to have a significant dysfunction and impairments affecting important bodily functions resulting from his accident.
In his updated report dated September 17, 200124, Dr. Marciniak stated that Mr. Kanareitsev had both physical and psychological problems which required treatment and assistance, including transportation. He commented on Mr. Kanareitsev's significant difficulties walking so that he required a taxi to travel.
Dr. Marciniak's treatment plan dated September 17, 2001 recommended an MRI, EMG and EEG. The treatment plan dated October 1, 2001 prescribed an active rehabilitation program with passive modalities 3-4 times a week.25 An updated report of Dr. Marciniak dated October 19, 200126 noted some improvement, especially as a result of acupuncture, which helped Mr. Kanareitsev regain some sensation and function with his arm. However, he continued to experience some psychological problems and a rehabilitation program was suggested.
Dr. Marciniak's report dated November 5, 200127 mentioned Mr. Kanareitsev's 1994 accident and concluded that although Mr. Kanareitsev had pre-existing problems, he was functioning prior to the 2001 accident. Dr. Marciniak found Mr. Kanareitsev was completely dysfunctional although slightly better from his rehabilitation program. His report dated November 12, 200128 concluded that Mr. Kanareitsev was much worse. He was trying to walk at home and fell as a result of his balance problem and his legs giving out. He also experienced significant pain in his legs and feet although there was some improvement with respect to his neck and shoulders.
Dr. Marciniak's treatment plan dated December 1, 2001 prescribed an active rehabilitation program with passive modalities 3 times per week for 8 weeks in order to restore strength and potentially return to a normal life.29
In Dr. Marciniak's report dated April 5, 200230, he stated that Mr. Kanareitsev was still experiencing significant problems and dysfunction. In his summary, Dr. Marciniak stated that: "He still has ambitions of being independent and certainly he is trying to walk, and while it is a good idea to preserve as much function as possible, the reality is that Mr. Kanareitsev will likely continue to deteriorate, especially as he ages."
Following the MRI examination of Mr. Kanareitsev's cervical and lumbar spine on August 2, 2002, Dr. Marcianiak performed the diagnostic imaging multidisciplinary review and report. He diagnosed significant abnormalities which will result in permanent impairments. The long-term prognosis is that Mr. Kanareitsev may develop bridging osteophytes which basically immobilize
the lumbar spine. If he experiences any further impact, trauma or bends suddenly, he may break off the bridging osteophytes, causing more problems in the future.
In his treatment plan dated August 9, 2002, Dr. Marciniak prescribed an active rehabilitation program with passive modalities for 1-2 times per week for 8 weeks to restore strength and return to normal life.31
Dr. Marciniak's updated report dated May 31, 200232 concluded that:
The patient continues to have significant problems resulting from his accident. He has improved with regards to some symptoms but basically he is dysfunctional.
The wheelchair that Mr. Kanareitsev received was a standard wheelchair, which is a more economic or cheaper means of transportation for him. The standard wheelchair however, does not allow Mr. Kanareitsev to easily get in and out of the chair, as his legs are long and his arms are too weak to push himself out of the wheelchair or safely get in.
...He requires a custom made wheelchair and probably an electric scooter, as he is unable to travel long distances by pushing the wheelchair with his already weak arms.
Dr. Marciniak recommended that Mr. Kanareitsev have more attendant care services so that he could be pushed in the wheelchair and an electric scooter, which would allow him to be more independent. His psychological problems, as a result of his disability, were noted again. Mr. Kanareitsev was described as very motivated to recover.
In his report dated September 27, 200233, Dr. Marciniak states that Mr. Kanareitsev's inability to walk and use the wheelchair resulted in a series of falls. Mr. Kanareitsev appeared to be deteriorating and it was observed that he did not seem to be receiving proper nutrition. Dr. Marciniak suggested that Mr. Kanareitsev should have a room/apartment in a facility for seniors with access to 24-hour attendant care. Dr. Marciniak stated that Mr. Kanareitsev would "never recover to the level of his pre-accident status as his impairments are indeed permanent and serious, affecting important bodily functions, both physical and psychological in nature."
Following the chest x-rays on September 27, 2002, in his review of October 2, 2002,34 Dr. Marcianiak stated that Mr. Kanareitsev had numerous problems resulting from the accident and all his problems directly and/or indirectly related to the accident. In August 2002, Mr. Kanareitsev fell and sustained multiple injuries, including a displaced fracture of the left seventh rib in the mid-auxiliary line. Dr. Marciniak anticipates further problems in the future as Mr. Kanareitsev is not able to function and manoeuvre his wheelchair.
Dr. Marciniak stated that Mr. Kanareitsev still has aches and pains and his gait is severely ataxic, which results in unsteadiness on his feet. He was diagnosed with headaches, neck injury strain, right shoulder injury, low back injury/strain, right ankle/leg injury and psychological problems. He concluded that:
[Mr. Kanareitsev] had numerous problems resulting from the accident and now has additional problems resulting from his fall, including fractured ribs and bruising. All those problems are directly and/or indirectly related to his MVA.
In his report dated July 4, 200335, Dr. Marciniak summarized Mr. Kanareitsev's progress and treatment. He believed that the treatment benefited Mr. Kanareitsev although his injuries/impairments are long-standing and most likely will continue in the future. "Further deterioration is expected. The patient continues to be virtually completely disabled from most activities, including ADLs. His problems, impairments and disability were the result of accident which caused new injuries, and which also aggravated his pre-existing problems rendering him totally disabled."
Mr. Kanareitsev attended physiotherapy and massage treatments at Sports Medicine from August 3, 2001 to November 1, 2002. The TTC terminated payment for the treatment on or around February 27, 2002. From February 27, 2002 to November 1, 2002, Mr. Kanareitsev attended 36 physiotherapy sessions, which were billed at the rate of $125.00 per session. The outstanding balance for physiotherapy treatment is $4,500.
I find that Mr. Kanareitsev is entitled to payment of $4,500 for physiotherapy, which was both reasonable and necessary. Mr. Kanareitsev testified about the pain relief experienced as a result of the physiotherapy, and his care providers, such as Dr. Marciniak, noted that the treatment improved his mobility, strength and balance at the time.
(b) Acupuncture
Mr. Kanareitsev received acupuncture treatment at Sports Medicine from October 5, 2001 to November 30, 2001. The outstanding balance is $495.
Mr. Kanareitsev testified that he received acupuncture treatments for his right arm which was numb. Then his left arm sometimes became numb. He always arrived at the clinic at 10:00 a.m. and left at 12 or 1:00 p.m. He saw the psychologist on the same day as he received his other treatment. He saw two psychologists at first but later he saw only Mr. Gennady Filin. He testified that he stopped seeing a psychologist in October or November 2002.
Dr. Marciniak testified that Mr. Kanareitsev received massage, physiotherapy and acupuncture treatment at Sports Medicine. He was treated one on one by a therapist. He was at the clinic for a couple of hours at a time and required more time and assistance through a Russian speaking person. The treatment was helpful as it increased mobility, decreased pain, maintained status and prevented further deterioration. His impairments and injuries included head, neck, shoulder, knee, and dizziness which had no relation to his pre-existing neuropathy. In Dr. Marciniak's opinion, damage or injury to the peripheral nerve can cause serious deterioration of the polyneuropathy within the limb. Peripheral nerves are located at the elbow, shoulder, knee area and outside the thigh area. The MRI results show objective trauma to Mr. Kanareitsev's spine. Dr. Marciniak was aware of Mr. Kanareitsev's pre-existing medical condition. His opinion was that the accident was the main cause for Mr. Kanareitsev's current disability.
I find that Mr. Kanareitsev is entitled to payment of $495 for acupuncture treatments, which are reasonable and necessary based on his testimony, and that of his care providers, regarding improved mobility and decreased pain in his right arm as a result of treatment.
(c) Accident Injury Assessment Centre - Psychological Treatment
Mr. Kanareitsev was referred to the Accident Injury Assessment Centre ("AIA") for psychological evaluation and treatment.
Dr. Bernard S. Grzyb, a certified psychologist with the College of Psychologists of Ontario, prepared a report dated July 30, 2001.36 The report documented Mr. Kanareitsev's recollection of the accident, as follows:
... The streetcar hit the bike's back wheel, and Stanislav Kanareitsev then was thrown to the ground, striking the right side of his body and head against the pavement. He lost consciousness for about 10 minutes. This was followed by a period of confusion and disorientation...His initial recollection was that of sharp occipital pain, accompanied by nausea, difficulty breathing, and pain in his neck and right shoulder...
During the assessment, Dr. Grzyb observed the following psychological difficulties as a result of the accident: mood problems, anxiety, and relationship difficulties. He was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. Dr. Grzyb stated that Mr. Kanareitsev has developed severe emotional and behavioural symptoms in response to the motor vehicle accident and its consequences. As a result, he demonstrated a significant impairment in his overall functioning. Dr. Grzyb prescribed cognitive behavioural therapy for 10 sessions over three months.37
In his report dated September 13, 200138, Dr. Grzyb expressed his concerns about the occupational therapy re-assessment which was performed at the request of the TTC. As a result of this assessment, Mr. Kanareitsev:
... has become more irritable, extremely anxious, and has felt totally discouraged about his future. His confidence in himself and sense of mastery has become further eroded. His anxiety has been focused on his both physical and emotional condition since the incident...
He developed physical and emotional symptoms which resulted in a fall in which he sustained additional injuries...
His condition has clearly deteriorated following his experiences related to the OT assessment.
Dr. Grzyb diagnosed Mr. Kanareitsev as having classic symptoms of acute stress disorder:
re-experiencing, avoidance and hyperarousal.
During the psychological re-assessment on September 25, 200139, Dr. Grzyb diagnosed that Mr. Kanareitsev had developed post-traumatic stress disorder following the in-home assessment on September 10, 2001, arranged by the TTC. Dr. Grzyb analyzed the treatment performed to date and prescribed the continuation of psychological treatment to help Mr. Kanareitsev cope with his physical and psychological problems as a result of the accident. Dr. Grzyb recommended 15 additional sessions of psychotherapy for stress reduction techniques, cognitive therapy and supportive therapy.
On October 29, 2001, Dr. Lawrie Reznek, a psychiatrist, conducted an insurer's examination.
He concluded that Mr. Kanareitsev showed no evidence of depression, adjustment, post-traumatic stress or pain disorders. However, Dr. Reznek stated: "Mr. Kanareitsev may have sustained a mild traumatic brain injury in the accident of July 12, 2001."40
On December 18, 2001, Dr. Grzyb prepared another psychological re-assessment report reiterating that Mr. Kanareitsev had developed post-traumatic stress disorder. He stated that psychotherapy helped Mr. Kanareitsev with psychological support, education and the development of coping mechanisms. Although Mr. Kanareitsev had improved in his overall functioning, he still experienced a number of psychological problems. Dr. Grzyb noted that he would benefit from an additional course of psychotherapy. The treatment plan dated December 18, 2001 prescribed 15 psychological therapy sessions for cognitive therapy, relaxation techniques and reduction of stress and anxiety.41
On March 6, 2002, Dr. Grzyb commented that Mr. Kanareitsev continued to experience a high level of post-accident distress and post-traumatic stress disorder. This was exacerbated by various assessments, which were performed by the insurance company. Mr. Kanareitsev was distressed, overwhelmed by intense anxiety, and suffered from a loss in self-confidence after he perceived that the DAC assessors concluded that he lacked honesty and integrity. Dr. Grzyb recommended that Mr. Kanareitsev continue with psychotherapy. He prescribed 20 treatments.
In his psychological report dated May 23, 2002, Dr. Grzyb stated that Mr. Kanareitsev, as a result of 10 months of cognitive behavioural psychotherapy, had gradually changed to become more sensitive to other people's concerns about his behaviour. The periods of intense anxiety disappeared. Despite improvement, Mr. Kanareitsev continued to feel drained of energy and sad much of the time with a low level of self-confidence and other symptoms of post-traumatic stress disorder. In his words:
Mr. Kanareitsev's favorite activity is writing. He enjoys creating novels and short stories... At the time of the accident in question he was in the final stages of completing his first book, a work of fiction. Following the accident, as a result of this depression and consequent loss of interest and motivation, his creative ability deteriorated to the extent that he has given up this avocation. This represents a major loss and has diminished his enjoyment of life immeasurably.
Mr. Kanareitsev's favorite physical hobby was bike riding. The injuries he sustained in the accident are such that he is certainly precluded from this activity now and apparently will be unable to enjoy it in the future. These physical limitations appear to be permanent ones, and are very distressing to this gentleman.
Dr. Grzyb concluded that as a result of the accident, "Mr. Kanareitsev has developed quite severe mental impairments as evidenced by limitations in activities of daily living (self-care, sleep and social and recreational activities); impaired social functioning - avoidance of interpersonal relationships and social isolation; impaired concentration, persistence, and pace." His diagnosis was that "Mr. Kanareitsev's inability to function successfully in his everyday life is the result of both his physical condition and his emotional status. He is severely depressed, displays symptoms of [post-traumatic stress disorder] and [is] almost completely withdrawn socially."
On September 16, 2002, Dr. Grzyb re-assessed Mr. Kanareitsev with respect to his ongoing psychological problems. His report and treatment plan42 recommended an additional course of psychotherapy. He concluded that since the accident Mr. Kanareitsev had developed post-traumatic stress disorder and anxiety and depression were interfering with his functioning. Mr. Kanareitsev continued to feel drained of energy and sad much of the time, hopeless and depressed.
With respect to the claims relating to psychological treatment rendered by AIA, the TTC submits that such treatment was not rendered by a registered psychologist or even an unregulated service provider. Mr. Kanareitsev saw Dr. Gryzb on the first few occasions he attended at AIA for psychotherapy but thereafter he saw only Mr. Filin.
Mr. Gennady Filin testified that he is licensed as a medical doctor in Russia and Israel. Although he is not a licensed psychologist with the College of Psychologists of Ontario, he works under the direct supervision of Dr. Grzyb. He received directions from Dr. Grzyb with respect to the diagnosis and treatment of Mr. Kanareitsev. He provided translation services and psychological treatment for Mr. Kanareitsev from August 3, 2001 to November 1, 2002.
Mr. Kanareitsev submitted that the College of Psychologists of Ontario and the Ontario Psychological Association established the following principles for their billing practices for unregulated supervised service providers involved in the provision of psychological services.43
(a) Unregulated personnel may be employed by a psychologist in the provision of professional clinical services under direction and supervision of that psychologist;
(b) The psychologist is directly responsible for all services and is accountable to all parties;
(c) All services must be proposed, provided, and billed in the name of the directing and supervising psychologist;
(d) The fee for services provided under the direction and supervision of the psychologist must reflect the fact the services are provided by the psychologist.
Mr. Kanareitsev also relied on a commentary from the Ontario Psychological Association which stated the following:44
It is appropriate for psychologists to bill for the time of unregulated personnel delivering a portion of the services under their direction and supervision at the same rate as if the psychologist had personally delivered the service, since in fact the psychologist is directly accountable and responsible for the quality and the outcome of the service, as well for ensuring an equivalent standard of care has been provided. The unregulated service provided is functioning as an extension of the psychologist without any independent professional responsibility or status.
I find that Dr. Grzyb and Mr. Filin complied with the guidelines established by the Ontario Psychological Association. Dr. Grzyb was very familiar with Mr. Kanareitsev's case and exercised the appropriate level of supervision for Mr. Filin. Dr. Grzyb was entitled to bill for Mr. Filin's time at the same rate as if he had personally delivered the service because he was directly accountable and responsible for the quality and outcome of the service.
Both Mr. Filin and Mr. Kanareitsev testified about the beneficial effect that the psychological counselling had on his ability to function. Mr. Kanareitsev attended psychological treatment at AIA from August 3, 2001 to November 1, 2002. In March 2002, the TTC terminated payment for the treatment performed despite evidence that Mr. Kanareitsev required it. Mr. Kanareitsev attended 31 psychological treatment sessions from March 1, 2002 to November 1, 2002 which were invoiced by AIA at $180 per session. According to my calculations, Mr. Kanareitsev is entitled to payment of $5,580 for psychological treatment.45
Dr. John F. Thornton
Dr. Thornton completed his psychiatric residency as Chief Resident at the Clarke Institute of Psychiatry, University of Toronto, in 1977. He has had a practice with patients with chronic pain and victims of motor vehicle accidents since 1982.
In his report dated October 7, 200346, Dr. Thornton relied on Dr. Grzyb's report dated July 31, 2001, where he observed that Mr. Kanareitsev "appeared intensely anxious and exhibited considerable pain behaviour, including groaning, gasping, and grimacing. His words to describe his current condition were emotionally charged and affect-laden. During the course of the interview, he described a variety of physical complaints and indicated that his pain and fatigue lead to his spending a great deal of time in bed."
Dr. Thornton diagnosed Mr. Kanareitsev with post-traumatic stress disorder, a specific phobia with respect to driving, adjustment disorder with emotional features, major depressive disorder, and chronic pain disorder secondary to a general medical condition. He found that Mr. Kanareitsev was psychiatrically and physically disabled, requiring a wheelchair to prevent any further falls. He stated that Mr. Kanareitsev was highly unlikely to regain his pre-accident level of functioning either psychiatrically or physically as both are intimately connected and aggravating each other. Dr. Thornton recommended psychological and medical treatment, medication, psychotherapy and caregiver support.
In his follow-up report dated October 7, 200347, Dr. Thornton commented on the extensive medicals and DAC medical/rehabilitation in his psychological report dated March 17, 2003:
There is no debate among the assessors about this man's physical condition and that he requires assistance for his deteriorated physical functioning. However, some assessors suggest that his current physical functioning is secondary to pre-morbid medical difficulties and not due to the subject motor vehicle accident. They do not explain how his rapid deterioration is unrelated to the accident.
Dr. Thornton testified that Mr. Kanareitsev returned to full functioning after the 1994 accident. He said that people who fall down regularly do not ride bicycles. He diagnosed a major depressive disorder, chronic pain syndrome with post - traumatic stress disorder and a driving phobia. Dr. Thornton did not support Dr. Reznek's conclusions in the Seiden Health Management Inc. report.48 He testified that Mr. Kanareitsev looked thin and sad with fatigue and poor concentration. He confirmed that Mr. Kanareitsev found the in-home assessment traumatic and believed that his credibility was questioned. Dr. Thornton supported the necessity of psychological treatment now and into the foreseeable future. He commented that someone is needed who is familiar with Russian, has a supportive nature, will understand and organize things for him. Dr. Thornton commented that after his second assessment on October 7, 2003, Mr. Kanareitsev was not able to get out of his chair. He deteriorated dramatically after the accident.
Conclusion Re: Medical Benefits
It was the opinion of the West Park Healthcare Centre Medical and Rehabilitation DAC physiatrist, Dr. M. Devlin, and the psychologist, Dr. T. Hunt, who assessed Mr. Kanareitsev in February 2003, that ongoing treatment would not address the underlying causes of his medical problems, as these were related to his progressive neuropathy.
Mr. Kanareitsev claims that the West Park Healthcare Centre Medical and Rehabilitation DAC assessments should be discounted. He asserts that Dr. Devlin gave his medical opinion as an advocate for the TTC. Specifically, Mr. Kanareitsev claims that Dr. Devlin failed to set out in his report that Mr. Kanareitsev had chronic pain as the direct result of injuries sustained in the accident and this materially contributed to Mr. Kanareitsev's disability. I agree, based on the evidence before me, that the TTC and Dr. Devlin failed to address the issue of Mr. Kanareitsev's chronic pain. I find that Mr. Kanareitsev's chronic pain materially and significantly affects his current impairment and disability.
Despite the medical evidence to the contrary, Dr. Devlin disputed that Mr. Kanareitsev had sustained head trauma as a result of the 2001 accident. He also specifically denied that, based on the mechanism of injury and the initial complaints, the peripheral nerve could have been damaged in the limbs where obvious trauma has taken place. More particularly, injuries to the shoulder, knee, elbow and leg were denied as being the areas of trauma such that nerve damage likely occurred. Dr. Devlin did not make any further recommendations for investigation of the trauma even though he admitted that this was more of an area for orthopaedic opinion.
I find that Mr. Kanareitsev was hit by a TTC streetcar travelling at approximately 5-10 km per hour. He was hit hard from behind and flew through the air landing on his right side and lost consciousness. Consequently, his injuries were to his head, right shoulder, right elbow and right arm, his neck, lower back, right leg and right knee. He has sustained severe psychological depression and poor sleep. In the year prior to the accident, Mr. Kanareitsev did not suffer from the following: headaches, dizziness, vomiting, severe neck pain, severe upper and lower back pain, right knee pain, right thigh pain, right elbow and right arm pain, right shoulder pain, sadness, sleep problems and most of all, he did not suffer from chronic pain.
As a result of the injuries sustained by Mr. Kanareitsev, the physiotherapy, massage, acupuncture and psychological treatments rendered were reasonable and necessary as they gave some psychological relief and improvement as well as temporary pain relief, and improvement in mobility. Physiotherapy, acupuncture and massage therapy were helpful in maintaining the remaining limited strength and balance from further deterioration. I find that the treatment expenses as well as the assistive devices, such as the wheelchair, sitting chair and mattress recommended by the occupational therapist, are reasonable and necessary and should be paid by the TTC.
4. Is Mr. Kanareitsev entitled to payment of attendant care benefits from April 9, 2002 to July 12, 2003 in the amount of $2,215.93 per month as recommended in the occupational therapy re-assessment report of Sophie Bielawski dated April 30, 2002, pursuant to section 16 of the Schedule?
Subsection 16(1) of the Schedule states: "The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit." Subsection 16(2) requires that "the attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, (a) services provided by an aide or attendant ..." Subsection 16(4) states: "The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1."
5. Is Mr. Kanareitsev entitled to payment of housekeeping and home maintenance services in the amount of $100 per week from November 9, 2001 to July 12, 2003, pursuant to section 22 of the Schedule?
Subsection 22(1) of the Schedule states:
The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
Mr. Kanareitsev testified that his son helped care for him after the accident. Also, his niece's son lived with him for more than one year from the beginning of November 2001. His sister also helped with cleaning, cooking and doing laundry. She assisted with personal care because his niece's son was not very good with helping. His neighbours, Nikolai and Maria Hrynenko, also assisted with his care and housekeeping.
Angela Badgley from Howard Seiden and Associates - In-home Assessment and FCE
Ms. Badgley, a nurse, testified that she and Mr. Bragdon, on behalf of the TTC, with the assistance of a Russian interpreter, conducted a functional capacities evaluation and an in-home assessment of Mr. Kanareitsev on September 10, 2001.49Mr. Kanareitsev suffered a physical and psychological setback as a result of this assessment, according to his treating health care providers.
Ms. Badgley testified that the examination lasted from 10:00 a.m. until 3:45 p.m, without a break, because Mr. Kanareitsev did not specifically request it. She conceded that the examination was only 8 weeks after the accident during the acute state of his injuries. When Mr. Kanareitsev stood up, he held onto the chair beside him. Her notes also revealed that Mr. Kanareitsev was unable to use his right hand to raise himself out of the tub, was dropping cups and utensils, had weakness and tingling in his right finger and thumb, had problems bending and had not gone grocery shopping since the accident. She also noted that he was guarding his neck, was grimacing and cried out in pain.
Mr. Bragdon's notes document that Mr. Kanareitsev reported being dizzy at 11:41 a.m. and, at 1:35 p.m., he stopped his activities required in the standing position due to pain. At 2:21 p.m., he repeated his feelings of frustration and stated: "I didn't know it would be so tortuous."
Sophie Bielawski's Reports[^50]
Ms. Bielawski has 30 years of experience in clinical occupational therapy, together with management of the occupational therapy department at St. Michael's Hospital. For the past six years, she has concentrated on assessment of in-home activities of daily living, job site analysis, education and monitoring of functional abilities, return to work and referral to community facilities.
Ms. Bielawski did not testify but her reports were relied on by Mr. Kanareitsev. On July 30, 2001, she noted the following symptoms during an in-home occupational therapy assessment of activities of daily living.51 This was 18 days after the accident. The symptoms were: head injury - loss of consciousness, reported hitting his head when he fell to the ground; neck - immediate onset, persistent pain and stiffness with episodes of aggravation, located at the posterior cervical area, worse on right side, radiating to both shoulders, right side domination; pain and numbness in the posterior cervical area, shoulders, right arm, low back, rib cage and right knee, headaches, dizziness, balance, appetite, disrupted sleep, vision, fatigue and weakness, depression, anxiety, and sadness. Ms. Bielawski described the difference in Mr. Kanareitsev's daily activity level before and after the accident. Before, he woke at 5:00 a.m., washed, dressed, exercised 2-3 times per day, rode his bicycle during good weather for 2-3 hours, returned home, showered, dressed, read, wrote his autobiography, made supper and other meals for himself and his son (when his son lived with him or visited), watched television, rested, socialized and went to bed between 9 and 10 p.m.
Post-accident, Mr. Kanareitsev woke up early in the morning but was tired because he had difficulty sleeping through the night. He tried to exercise and massage his arm while sitting at the side of his bed. He attempted to wash himself but required assistance with showers and dressing. Ms. Bielawski observed that Mr. Kanareitsev could walk around his apartment and do some occasional cooking. According to her, neighbours assisted him with shopping, cooking and bringing him prepared food. He watched television, rested, had naps and attempted to read. He went to sleep between 9 and 10 p.m.
Ms. Bielawski concluded that, as a result of the 2001 accident, Mr. Kanareitsev required occupational therapy in-home treatment, attendant care assistance with personal care and safety in the amount of $1,950 monthly, to be re-evaluated monthly.52 She recommended assistance with daily housekeeping of 14-16 hours per week at a cost of $10-$15 per hour, to be re-evaluated monthly. She also recommended assistance with transportation as Mr. Kanareitsev is unable to bicycle or walk long distances. A taxi service was recommended for all medical and rehabilitation appointments with a minimum cost of $200 per week. She recommended various assistive aids, physiotherapy, a gym membership including a swimming program in warm water with a personal trainer, chiropractic treatment, massage therapy and psychological treatment.
On April 30, 2002, Ms. Bielawski performed an occupational therapy re-assessment of activities of daily living.53 She noted Mr. Kanareitsev's deterioration of walking abilities so that he required assistance/accompaniment for all walking outdoors for safety reasons. For short distances of under 5 minutes, he could manage with a cane. For more than 5 minutes of walking, he needed a wheelchair because he did not have the strength to walk, he stumbled, had an awkward, unstable gait and was in danger of falling with no improvement with balance and strength. She recommended a standard wheelchair.
At this re-evaluation, Ms. Bielawski recommended the following: occupational therapy in-home treatment, attendant care assistance with personal care and safety totalling $2,215.93 monthly, to be re-evaluated every three months.54 She also recommended assistance with daily housekeeping, transportation to all medical and rehabilitation appointments, various aids to facilitate safety and independence, physiotherapy, a gym membership including a swimming program (in warm water) with a personal trainer, chiropractic treatment, massage therapy and psychological treatment.
West Park Healthcare Centre - Attendant Care Needs DAC Assessment
Kathryn Blaney, an occupational therapist, assessed Mr. Kanareitsev on March 19, 2003 as a member of the West Park Healthcare Centre attendant care needs DAC assessment.55 She testified that she was at Mr. Kanareitsev's home to conduct an attendant care and goods and services assessment after Ms. Bielawski recommended a wheelchair, an orthopaedic mattress and a chair. She found that Mr. Kanareitsev's right hand and shoulder were weaker than his left, that he had limited use of his hands, and a limited ability to care for his hygiene. Ms. Blaney observed that Mr. Kanareitsev used a cane and furniture for support. She noted that he needed assistance for cutting his toenails, shaving, and for transferring in and out of the tub. In her opinion, the cause of his loss of strength was his neuropathy while the cause of his ongoing pain was unknown. She testified that Mr. Kanareitsev was a "very highly motivated man" but was unable to cook for himself due to falls and was unable to walk with a cart of laundry. She believed that all of Mr. Kanareitsev's difficulties with standing, balance, walking, sitting, transferring, cooking and cleaning were as a result of his neuropathy and not as a result of any injuries sustained in the accident.
Ms. Blaney testified that Mr. Kanareitsev claimed to experience the following symptoms during her assessment: low back pain, right knee and right hip throbs and causes falls, depression, headaches, neck pain, right shoulder pain, pain with neck movement, and frequent falls. She admitted that dizziness, falls, and ongoing pain are not related to neuropathy. She acknowledged that Mr. Kanareitsev cannot travel by TTC and is not able to leave his apartment on his own in an emergency.
Conclusion Re: Attendant Care and Housekeeping
Ms. Badgley's own evidence supports the finding of Mr. Kanareitsev's health care providers that the in-home assessment was a traumatic event for him. It appears unreasonable to have subjected him to an assessment for almost six hours with no break for lunch.
Ms. Bielawski and Ms. Blaney had dramatically different findings about Mr. Kanareitsev's condition and its cause. I prefer the findings of Ms. Bielawski over those of Ms. Blaney. Ms. Bielawski's findings are more consistent with the preponderance of the medical and lay evidence. Ms. Bielawski concluded that Mr. Kanareitsev suffered from a constellation of physical symptoms which made him incapable of carrying out his activities of daily living. As I have found that the 2001 accident was the cause of Mr. Kanareitsev's impairment, I also find that Mr. Kanareitsev is entitled to attendant care expenses and housekeeping as recommended by Ms. Bielawski in her occupational therapy report. He has incurred attendant care and housekeeping expenses which were reasonable and necessary as a result of the impairment suffered from the accident.
6. Is Mr. Kanareitsev entitled to payment for the outstanding cost of reports, pursuant to section 24 of the Schedule:
(a) reports prepared by Sports Medicine and Rehabilitation Clinics from January 30, 2002 to December 11, 2003 in the amount of $5,150;
(b) treatment plans prepared by Sports Medicine and Rehabilitation Clinics from January 10, 2002 to October 15, 2002 in the amount of $339.50
(c) psychological reports prepared by Accident Injury Assessment Centre from January 17, 2002 to October 2, 2002 in the amount of $3,500;
(d) treatment plans prepared by Accident Injury Assessment Centre from January 17, 2002 to September 17, 2002 in the amount of $169.75;
(e) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated July 30, 2001, in the amount of $1,320;
(f) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated April 30, 2002, in the amount of $2,590.57, which includes the cost of assistive devices recommended;
(g) rheumatology assessment report prepared by Dr. Pruzanski, dated November 28, 2001, in the amount of $950; and
(h) radiology review and assessment reports, prepared by Dr. Marciniak, dated August 21, 2002 and October 2, 2002, in the amount of $1,750.
Subsection 24(1) of the Schedule states:
The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,
(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan
Conclusion Re: Section 24 Examinations
Arbitration decisions suggest that a two-part analysis be applied to determine whether or not the insurer is required to pay for an assessment:
(a) Was it reasonable to conduct the assessment?
(b) Was the cost reasonable?56
The assessments and reports prepared by Sports Medicine provided regular updates and progress reports with respect to Mr. Kanareitsev. At first glance, the total of $5,150 may seem excessive for the assessments and reports. However, the reports dated January 30, April 5, May 3, May 31, September 27, 2002, July 4, 2003, December 3, 2003 and December 11, 2003 were detailed and comprehensive. They provided useful information about Mr. Kanareitsev, which assisted in determining appropriate treatment for him. I find that Mr. Kanareitsev is entitled to payment of $5,150 for the cost of assessments and reports from Sports Medicine.
Similarly, the claim for $3,500 in psychological assessments and reports at first appeared somewhat excessive. However, when I reviewed the reports dated January 1, March 6, May 23 and September 17, 2002, I found that they were useful in providing details of Mr. Kanareitsev's condition. Many of the reports from Sports Medicine and AIA were relied upon by me and are quoted in this decision. All the treatment plans completed by Sports Medicine and AIA were required by the Schedule in order for Mr. Kanareitsev to claim expenses for medical benefits. Clearly, Mr. Kanareitsev is entitled to payment of $339.50 for treatment plans from Sports Medicine and $169.75 for treatment plans from AIA, as the costs claimed for their completion were reasonable.
It appears from the invoices submitted by AIA that Ms. Bielawski's report dated July 30, 2001 and Form 1 totalling $1,320 may have been paid by the TTC.57Additionally, Ms. Bielawski's report dated April 30, 2002 and Form 1 together with the cost of assistive devices totals $2,470 and not the $2,590 claimed. The total of $2,470 includes $1,200 for the occupational therapy report and ADL sheet, $120 for the Form 1, $164.70 for mileage charges, $85.88 for the treatment plan and $899.99 for assistive devices.58
On September 5, 2002, Mr. Kanareitsev was referred to Dr. Pruzanski for a rheumatological examination and report.59 Dr. Pruzanski concluded that Mr. Kanareitsev had a widespread musculoskeletal disease involving all four extremities with a diagnosis of muscular dystrophy, myelopathy due to cervical and lumbar disc disease and peripheral polyneuropathy. "The fact that the patient has widespread degenerative disease of the cervical and lumbar spine is not against the fact that the motor vehicle accident could markedly aggravate and/or accelerate the pre-existing pathology in the cervical and lumbar spine. The prognosis is extremely poor. I believe that the musculoskeletal system is significantly compromised and the recovery cannot be envisaged." Dr. Pruzanski prescribed aggressive physiotherapy and other modalities following extensive neurological investigations. I find that Mr. Kanareitsev is entitled to payment of $950 for Dr. Pruzanski's report which was required for diagnostic and treatment purposes.
I also find that Mr. Kanareitsev is entitled to payment of $1,750 for Dr. Marciniak's radiology review and assessment reports. The review and reports were required to ensure that Mr. Kanareitsev received appropriate treatment.
The reports prepared by Dr. Marciniak, Dr. Pruzansky, and Ms. Bielawski were reasonable and necessary. All the reports claimed established the need for and entitlement to treatment, transportation, assistive devices, housekeeping and attendant care expenses, which were initially denied. The reports were also needed in order to determine the appropriate treatment for Mr. Kanareitsev. Additionally, the reports advised the TTC of the detrimental effect that an insurer's in-home assessment had on Mr. Kanareitsev. This assessment caused a severe psychological setback, made him fearful and increased his pain. I find that Mr. Kanareitsev is entitled to payment of all the section 24 reports claimed.
7. INTEREST
I find that Mr. Kanareitsev is entitled to interest on all overdue payment of benefits, pursuant to subsection 46(2) of the Schedule.
8. SPECIAL AWARD
Subsection 282(10) of the Insurance Act provides the authority for a special award:
If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount of which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
This section requires me to impose a penalty where the insurer’s conduct amounts to unreasonable delay, which is beyond the delay addressed through interest. The nature of the award reinforces the focus on delay. The maximum which can be ordered is based on the amount that was unreasonably withheld or delayed, including interest, plus an additional interest component.
I find that the TTC's conduct in the case before me amounts to unreasonable delay. The TTC placed too great a reliance on the opinion of Dr. Devlin when it continued to refuse to pay non-earner, attendant care, housekeeping and medical/rehabilitation benefits in the face of the large number of medical reports which supported the position taken by Mr. Kanareitsev. In light of the many medical reports given to the TTC in support of Mr. Kanareitsev's position that the 2001 motor vehicle accident was the cause of his disability, the TTC's continued reliance on the DAC report, to the exclusion of other reports, was unreasonable.
In Walker and State Farm Mutual Automobile Insurance Company/60, Senior Arbitrator Rotter dealt with the submission that the opinion of a DAC assessor should be accepted, unless there was evidence "proving her clearly wrong." She held that:
I do not accept this submission of the Insurer. In my view, the evidence of a DAC assessor is and remains opinion evidence, which I must weigh carefully in coming to any conclusion. The weight to be accorded any such evidence must be in the discretion of the adjudicator, based on a careful evaluation of the thoroughness, relevance, neutrality and value of the opinion provided. Such factors as, for example, the familiarity with the details and history of a particular case, the length and thoroughness of the examination, and the particular area of expertise of the evaluator must all be carefully assessed. Ultimately, the arbitrator has the responsibility of considering all the evidence not just the evidence from the DAC and making a final determination based on his or her best judgement. It is not sufficient to simply accept or adopt the judgement of the DAC assessor, who does not have the legal responsibility or opportunity to hear and weigh all the available evidence in a particular case.
The Legislature has ultimately given the statutory decision-making authority to the arbitrator. I find it would be an abdication of that authority or an inappropriate fettering of discretion to accept the opinion of a DAC assessor in lieu of exercising the authority conferred on me.
Senior Arbitrator Rotter’s decision was upheld by Director’s Delegate Draper. He stated:
I agree with the arbitrator that this overstates the role of the DAC assessment. The legislature has given the arbitrator responsibility for making the final decision. He or she must consider all the evidence, including any DAC reports, and reach a decision based on an assessment of that evidence.61
A purposive interpretative approach to subsection 282(10) leads to the conclusion that its purpose is to punish insurers that unreasonably fail to pay accident benefits promptly and deter them from acting similarly in the future. I have considered the amount of the special award in this case in the context of the Insurance Act, according to the same principles identified by the Supreme Court of Canada in Whiten v. Pilot Insurance Company.62 This was the approach taken by the Director's Delegate in Liberty Mutual Insurance Company and Persofsky et al.63
The principles identified in Whiten were rationality and proportionality. Rationality requires me to relate the particular facts of this case to the underlying purposes of the legislation. Proportionality requires me to ensure that the consequences imposed on the insurer are rationally related to the misconduct at issue. As paraphrased in Persofsky, the special award should be proportionate to: (i) the blameworthiness of the insurer's conduct; (ii) the vulnerability of the insured person; (iii) the harm or potential harm directed to the insured person; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer for the misconduct; and (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.
In the case before me, I have to consider not only the blameworthiness of the TTC's conduct, that is, its refusal to consider the preponderance of the medical evidence and act accordingly. Mr. Kanareitsev was an extremely vulnerable, older person, not proficient in English, and living alone. The harm done to him by the TTC's refusal to pay benefits was extremely grave. He became isolated in his apartment, unable to participate in life due to the lack of attendant care and non-earner benefits and limited medical benefits paid. There is a need for deterrence so that greater care is extended to considering the issue of entitlement to benefits for other vulnerable persons.
Many of the relevant considerations when determining the amount of a special award were identified in Persofsky, as follows:
The amount of the benefits unreasonably withheld.
The time the benefit is withheld or delayed.
Failing to respect important obligations under the Schedule.
Other factors that increase the gravity of the insurer's conduct.
Mitigating factors.
Other penalties.
In weighing the above factors, I note that a significant amount of benefits were owed to Mr. Kanareitsev for outstanding non-earner, medical/rehabilitation, attendant care, housekeeping and section 24 benefits. Most of the benefits have been owing since 2002, and some section 24 and medical benefits were owed in 2001. The TTC withheld benefits unreasonably, taking into consideration that it was dealing with a 69-year old man who was capable of riding a bicycle prior to the streetcar accident and after the accident, his health deteriorated rapidly so that he was restricted to a wheelchair.
I find that the special award must be substantial enough to act as a deterrent to the unreasonable conduct of the TTC, while taking into account mitigating factors and any other penalties. A mitigating factor is that there was some medical evidence, most notably the DAC medical and rehabilitation and attendant care needs assessment reports, which supported the TTC's position. The amount of interest owed from 2001 will be fairly significant and constitutes a form of penalty which must be taken into account. I fix the special award at $10,000, inclusive of interest.
9. EXPENSES
I find that Mr. Kanareitsev is entitled to his expenses of the hearing. The parties are encouraged to agree on the amount of expenses. If they are unable to do so, they may apply for an expense hearing before me, according to the provisions of Rule 79 of the Dispute Resolution Practice Code.
July 7, 2005
Judith Killoran Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 97
FSCO A02-001225
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
STANISLAV KANAREITSEV
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Kanareitsev sustained an impairment within the meaning of section 2 of the Schedule as a result of the accident.
Mr. Kanareitsev is entitled to payment of non-earner benefits from January 21, 2002 at $185.00 per week to date and ongoing, pursuant to section 12 of the Schedule.
Mr. Kanareitsev is entitled to the following medical benefits pursuant to section 14 of the Schedule:
(a) physiotherapy treatment provided by Sports Medicine and Rehabilitation Clinics from February 6, 2002 to November 1, 2002 in the amount of $4,500;
(b) acupuncture treatment provided by Sports Medicine and Rehabilitation Clinics from October 5, 2001 to November 30, 2001 in the amount of $495; and
(c) psychological treatment provided by Accident Injury Assessment Centre from March 1, 2002 to November 1, 2002 in the amount of $5,580.
Mr. Kanareitsev is entitled to payment of attendant care benefits from April 9, 2002 to July 12, 2003 in the amount of $2,215.93 per month as recommended in the occupational therapy re-assessment report of Sophie Bielawski dated April 30, 2002, pursuant to section 16 of the Schedule.
Mr. Kanareitsev is entitled to payment of $100 weekly for housekeeping and home maintenance services from November 9, 2001 to July 12, 2003, pursuant to section 22 of the Schedule.
Mr. Kanareitsev is entitled to payment for the outstanding cost of reports, pursuant to section 24 of the Schedule:
(a) reports prepared by Sports Medicine and Rehabilitation Clinics from January 30, 2002 to December 11, 2003 in the amount of $5,150;
(b) treatment plans prepared by Sports Medicine and Rehabilitation Clinics from January 10, 2002 to October 15, 2002 in the amount of $339.50;
(c) psychological reports provided by Accident Injury Assessment Centre from January 17, 2002 to October 2, 2002 in the amount of $3,500;
(d) treatment plans prepared by Accident Injury Assessment Centre from January 17, 2002 to September 17, 2002 in the amount of $169.75;
(e) occupational therapy assessment report with Form 1 and treatment plan provided by Sophie Bielawski, dated July 30, 2001, in the amount of $1,320, if unpaid;
(f) occupational therapy assessment report with Form 1 and treatment plan performed by Sophie Bielawski, dated April 30, 2002, in the amount of $2,470, which includes the cost of assistive devices recommended;
(g) rheumatology assessment report prepared by Dr. Pruzanski, dated November 28, 2001, in the amount of $950; and
(h) radiology review and assessment reports, prepared by Dr. Marciniak, dated August 21, 2002 and October 2, 2002 in the amount of $1,750.
Mr. Kanareitsev is entitled to interest on the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
The TTC is liable to pay a special award of $10,000 pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Kanareitsev.
The TTC is liable to pay Mr. Kanareitsev's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.
July 7, 2005
Judith Killoran Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Dorland's Illustrated Medical Dictionary, 28th Edition
- Exhibit 1, Tab 17, reports dated November 18, 1994 and June 14, 1995
- Exhibit 1, Tab 17, report dated September 14, 1995
- Exhibit 5
- Exhibit 1, Tab 10
- Exhibit 12, Pictures # 3-9
- Exhibit 3, Tab 1
- Exhibit 1, Tab 18
- Exhibit 1, Tab 18
- Exhibit 12, photos 1 and 2
- Exhibit 15, Occurrence Report
- Exhibit 1, Tabs 7 pg. 2, 8 and 9
- Exhibit 1, Tab 2
- Exhibit 1, Tab 5
- Disability Certificate, Exhibit 1, Tab 3
- Exhibit 1, Tab 5
- Exhibit 1, Tab 6
- Exhibit 1, Tab 77
- (FSCO A00-000045, October 27, 2000) page 26
- Exhibit 8
- Exhibit 8
- Exhibit 1, Tab 38
- Exhibit 1, Tab 40
- Exhibit 1, Tab 42
- Exhibit 1, Tab 44
- Exhibit 1, Tab 45
- Exhibit 1, Tab 47
- Exhibit 1, Tab 53
- Exhibit 1, Tab 57
- Exhibit 1, Tab 56
- Exhibit 1, Tab 58
- Diagnostic Imaging Multidisciplinary Review, Exhibit 1, Tab 36
- Exhibit 1, Tab 60
- Exhibit 1, Tab 24
- Exhibit 1, Tab 24
- Exhibit 1, Tab 25
- Exhibit 1, Tab 26
- Exhibit 1, Tab 63, pg. 9
- Exhibit 1, Tab 29
- Exhibit 1, Tab 35
- OPA Auto Insurance Task Force, Billing Practices for Supervised Personnel, dated October 31, 2003
- Ibid.
- Exhibit 1, Tab 85, Invoice from AIA for Psychological Treatment
- Exhibit 1, Tab 75, pps. 11 and 12
- Exhibit 1, Tab 76
- Exhibit 1, Tab 63
- Exhibit 1, Tab 61 and 62, clinical notes and records at Exhibit 22
- Exhibit 1, Tab 19
- Attendant Care Assessment Form 1 at Exhibit 1, Tab 20
- Exhibit 1, Tab 21
- Exhibit 1, Tab 23, Assessment of Attendant Care Needs
- DAC reports, exhibit 1, Tabs 72, 73 and 74, Medical/rehabilitation, goods and services and attendant care needs assessments
- Tsimidis and Liberty Mutual Insurance Company (FSCO P99-000013, August 28, 2000) and Smith and Citadel General Insurance Company (FSCO P01-000034, August 20, 2002) p.3
- Exhibit 1, Tab 85
- Ibid
- Exhibit 1, Tab 34
- (OIC A-009905, February 23, 1996)
- Appeal Decision (OIC P96-000036, December 9, 1996)
- 2002 SCC 18, 2002 S.C.C. 18
- Appeal Order (FSCO P00-00041, January 31, 2003)
- Exhibit 1, Tab 66-74
- Exhibit 1, Tabs 19 and 21