Neutral Citation: 2007 ONFSCDRS 133

FSCO A06-001003

BETWEEN:

ANNA GABRIELYAN

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Denise Ashby

Heard: March 12, 13, 14 and 15, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Gary Mazin for Mrs. Gabrielyan

Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Anna Gabrielyan, was injured in a motor vehicle accident on March 17, 2005. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa did not pay weekly income replacement benefits, denied treatment plans for medical benefits, terminated housekeeping and home maintenance benefits and denied certain examination expenses. The parties were unable to resolve their disputes through mediation, and Mrs. Gabrielyan 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:

Is Mrs. Gabrielyan entitled to receive a weekly income replacement benefit from March 24, 2005 to March 16, 2007, pursuant to section 4 of the Schedule?
Is Mrs. Gabrielyan entitled to receive a weekly income replacement benefit from March 17, 2007 and ongoing pursuant to subsection 5(2)(b) of the Schedule?
What is the amount of weekly income replacement benefit that Mrs. Gabrielyan is entitled to receive pursuant to section 6 of the Schedule?
Is Mrs. Gabrielyan entitled to receive a medical benefit for the outstanding amount of $1,515.90 claimed for treatment provided by Downsview Health Recovery Centre to Mrs. Gabrielyan in accordance with five treatment plans pursuant to section 14 of the Schedule?
Is Mrs. Gabrielyan entitled to payments for the housekeeping services provided by a housekeeper between March 21, 2005 and December 31, 2005, pursuant to section 22 of the Schedule?
Is Mrs. Gabrielyan entitled to payments for the cost of the following examinations:

(a) $109.40 for an in-home assessment conducted by Century Assessments;

(b) $1,325.29 for a work-site assessment proposed by Century Assessments; and

pursuant to section 24 of the Schedule?

Is Wawanesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is Wawanesa liable to pay Mrs. Gabrielyan's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Gabrielyan liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Gabrielyan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mrs. Gabrielyan is entitled to receive a weekly income replacement for the period from March 24, 2005 to June 18, 2005, pursuant to section 4 of the Schedule.
Mrs. Gabrielyan is not entitled to receive a weekly income replacement benefit ongoing from March 17, 2007 pursuant to subsection 5(2)(b) of the Schedule.
The amount of Mrs. Gabrielyan's income replacement benefit is $272.45 weekly pursuant to section 6 of the Schedule.
Mrs. Gabrielyan is not entitled to receive a further medical benefit for treatment provided by Downsview Health Recovery Centre pursuant to section 14 of the Schedule.
Mrs. Gabrielyan is entitled to a housekeeping benefit, at the weekly rate of $100.00, from March 24, 2005 to April 30, 2005, pursuant to section 22 of the Schedule.
Mrs. Gabrielyan is not entitled to payments for examination expenses claimed pursuant to section 24 of the Schedule.
Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
Mrs. Gabrielyan is entitled to interest for the overdue payment of income replacement and housekeeping benefits, pursuant to subsection 46(2) of the Schedule.
The parties made no submissions with respect to expenses. They are encouraged to resolve the issue on their own, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Mrs. Gabrielyan, a chemist, emigrated to Canada from Armenia with her then husband and her daughter in July 2003. On March 17, 2005, Mrs. Gabrielyan was attempting to make a left turn when she was hit by another vehicle. Mrs. Gabrielyan called Mr. Karen Kachatrian, the registered owner of the vehicle and a 50% owner of Mobile Trans, the company at which she worked as an independent contractor. He attended at the scene, dealt with the police and took Mrs. Gabrielyan home. On September 26, 2005, Mrs. Gabrielyan applied to Wawanesa for benefits.

At the time of the accident, Mrs. Gabrielyan was living alone with her daughter in Mr. Kachatrian's condominium. Mrs. Gabrielyan was a temporary worker at Shield Plating (Shield) as well as working at Mobile Trans, Mr. Kachactrian's moving company. Subsequent to the accident, Mrs. Gabrielyan and Mr. Kachatrian became common-law partners. They both testified at the hearing.

Mrs. Gabrielyan testified that an accident-related incapacitating depression prevented her from returning to work at Mobile Trans and engaging in her pre-accident housekeeping. As well, it prevented her from applying for benefits immediately following the accident. She testified that it was her hope that the depression, pain in her neck and back and the post-accident headaches would resolve without intervention. However, the depression became more severe. As a consequence, she applied for benefits to pay for treatment. Mrs. Gabrielyan testified that the pain in her neck and back and headaches did not significantly curtail her activities of normal life but were unresolved at the time she applied for benefits.

Although Mrs. Gabrielyan testified the depression was incapacitating and kept her housebound she also testified that she continued to drive her daughter to school and was able to return to work at Shield in June or July. At about that time, she consulted her family physician, Dr. Alan Moll regarding her depression. He prescribed antidepressants and approximately one month later the medication took effect resulting in her crying less frequently, her appetite returned and her sleep was less disrupted. Mrs. Gabrielyan estimated she saw Dr. Moll 3 to 5 times for depression and a psychiatrist twice between June 2005 and December 2006. In June 2006 she went to Armenia for a three month visit. By that time her depression had substantially resolved. However, in November or December 2006 the depression returned. Mrs. Gabrielyan attributed this recurrence to a nephew's life threatening illness.

Dr. Moll's medical notes and records indicate that Mrs. Gabrielyan first consulted him on March 15, 2005 for back pain and a possible infection. The next visit was on May 18, 2005. His note refers to depression with no mention of the accident or symptoms of neck or back pain. Dr. Moll prescribed Effexor. In the year that followed Mrs. Gabrielyan had 4 further visits in which depression and a recurrence of the infection are noted. In none of those notes does Dr. Moll refer to a motor vehicle accident on March 17, 2005.²

In the spring of 2005, Dr. Moll referred Mrs. Gabrielyan to Dr. Dalia Ray, a specialist in obstetrics and gynaecology. On April 15, 2005, she examined Mrs. Gabrielyan for abdominal pain. There is no mention of the accident in Dr. Ray's notes.³

Three psychologists assessed Mrs.Gabrielyan in respect to her claim for accident benefits. On November 18, 2005, Dr. Peter Marton conducted an insurer's assessment pursuant to section 42 of the Schedule. On December 11, 2005, Dr. Mel Perlmutter assessed Mrs. Gabrielyan pursuant to section 24 of the Schedule and on June 2, 2006, Dr. Rod Day conducted an assessment as part of a multi-disciplinary Disability DAC.

Dr. Marton conducted a "semi-structured clinical diagnostic interview" and administered the Malingering Probability Scale, Rey's Dot Counting Test and Rey's Memory of 15 Figures Test. Dr. Marton reported that Mrs. Gabrielyan exhibited significant likelihood of symptom magnification on these tests. As well, Mrs. Gabrielyan completed the Wahler Physical Symptoms Inventory and the Sensations Scale. Dr. Marton described her responses as unremarkable. The Millon Clinical Multi-axial Inventory, 3rd Revision, which measures psychological, personality and clinical disorders suggested that Mrs. Gabrielyan had interpersonal problems, a positive sense of self and symptoms of physical concerns and depression. Again this test suggested the possibility of symptom magnification.⁴

Dr. Perlmutter also interviewed Mrs. Gabrielyan and administered the Beck Depression Inventory, Beck Anxiety Inventory, the Trauma Symtom Inventory and the Rehabilitation Checklist. He concluded that the test results indicated a moderate level of depression, mild anxiety and no significant diagnostic criteria for post-traumatic stress.⁵

Dr. Day interviewed Mrs. Gabrielyan and administered the Personality Assessment Inventory which he described as a "comprehensive measure of personality functioning and pathology." He reported that the test results were valid and concluded that Mrs. Gabrielyan met the diagnostic criteria of major depressive disorder, single episode, mild. In his opinion, Mrs. Gabrielyan was not substantially disabled from performing the essential tasks of her employment due to psychological factors.⁶

The psychological assessments of both Dr. Perlmutter and Dr. Day led to a conclusion that Mrs. Gabrielyan was suffering from clinical depression. They differed in degree. Dr. Perlmutter found her to be moderately depressed while Dr. Day assessed her as mildly depressed. In contrast, Dr. Marton found significant symptom magnification and no mental disorder. I found Dr. Marton's choice of assessment tools unreasonably weighted towards assessing symptom magnification. Therefore, I prefer the opinions of Dr. Perlmutter and Dr. Day and find that Mrs. Gabrielyan was suffering from clinical depression.

Mrs. Gabrielyan testified she believed the accident caused her depression which prevented her from returning to work at Mobile Trans and engaging in housework. However, Mrs. Gabrielyan did not advise her gynecologist that she had been in an accident the previous month. Further, Mrs. Gabrielyan testified that she trusted and respected Dr. Moll. Yet in May 2005, she did not confide in him her belief that her accident two months previous had caused her depression. Neither did she advise him that the depression had kept her housebound preventing her from returning to work and from doing her housekeeping. Notwithstanding Mrs. Gabrielyan had consulted Dr. Moll, with respect to back pain, two days prior to the accident, she did not mention accident-related neck and back pain and headaches when she visited in May. This failure to report the accident to the medical practitioners she consulted in the three months immediately following the accident is troubling. However, there is no evidence of pre-accident depression. The notes and reports of Dr. Moll, Dr. Perlmutter and Dr. Day provide compelling evidence of post-accident depression. Dr. Moll prescribed medication in May and Mrs. Gabrielyan testified that she experienced improvement in her symptoms after a month. Coincidental with this improvement Mrs. Gabrielyan returned to work at Shield. On the basis of the medical evidence, I find that the accident materially contributed to a post-accident depression which between March and July 2005 decreased from severe to moderate intensity.

Income Replacement Benefits - Pre-104 Weeks:

The Commission's case law establishes that Mrs. Gabrielyan must prove on a balance of probabilities that as a result of the accident she suffered a substantial inability or a significant and important impairment of ability, to perform the essential or major tasks of her occupation or employment at the time of the accident.

On March 17, 2005, Mrs. Gabrielyan had two jobs. She testified that her primary source of income was from her work as a self-employed contractor at Mobile Trans, a furniture moving company. Mrs. Gabrielyan described her work as requiring her to conduct on-site visits with potential customers to estimate the cost of the move; answering the phone at the company's office and preparing the schedules for the drivers. She was paid $807.61 weekly. Mrs. Gabrielyan testified she also worked at Shield where she "wired parts." She obtained this work through an agency whose name she could not recall. She was paid in cash at an hourly rate of $7.00. Her work at Shield was irregular and her hours varied from 2 to 5 hours a day. She returned to work at Shield in June or July following the accident. Mrs. Gabrielyan testified it was difficult working at Shield because she was unable to sit for long hours due to neck and back pain. However, she continued to work at Shield because her supervisor, whose last name she could not recall, was a friend who helped her deal with her depression. Mrs. Gabrielyan has no contact with the supervisor having lost her telephone number. Mrs. Gabrielyan also testified that Shield had promised her a job as a chemist. This job never materialized. Mrs. Gabrielyan stopped working at Shield in January or February 2006. She estimated her post-accident income from Shield was approximately $1,000.00.

Mr. Kachatrian testified that Mrs. Gabrielyan was too depressed to do scheduling, an essential part of her job at Mobile Trans and modified duties were not available. He was of the opinion that following the accident to the date he testified Mrs. Gabrielyan would have been incapable of preparing accurate schedules as a consequence of her depression.

Mrs. Gabrielyan provided little detail about the essential tasks of both her job at Mobile Trans and Shield. Her evidence did not assist me in distinguishing why she was able to return to wiring parts in June or July 2005 but was unable to return to her work at Mobile Trans. At the time of the accident, Mr. Kachatrian was not living with Mrs. Gabrielyan and had no knowledge of her day-to-day activities. He testified that his work as a part owner of Mobile Trans frequently took him out of town. He testified that while he was aware of Mrs. Gabrielyan's job at Shield he had no real knowledge of the type of work she did there. While I accept that Mr. Kachatrian believed that Mrs. Gabrielyan was incapable of working at Mobile Trans due to depression, his evidence does not assist in distinguishing why she was able to work at Shield but not Mobile Trans.

I rely on Mrs. Gabrielyan's evidence that she experienced a significant improvement in her mood one month following Dr. Moll's prescription of anti-depressants. I accept that until Mrs. Gabrielyan's mood improved she was not capable of conducting on-site visits with potential customers; estimating moving costs and preparing the schedules for the drivers at Mobile Trans. Therefore, I find that from March 17, 2005 to June 2005 Mrs. Gabrielyan's accident-related depression prevented her from engaging in the essential tasks of her employment at Mobile Trans. I also accept that, during this period, she was incapable of engaging in her wiring work at Shield.

Mrs. Gabrielyan was vague regarding the date upon which she returned to work at Shield suggesting it was June or July, 2005. Again, I accept that within a month of taking anti-depressant medication her mood was much improved and I find that Mrs. Gabrielyan returned to Shield on June 19, 2005. I also find that there was no significant difference in the cognitive acuity required for either her position at Shield or Mobile Trans. Therefore, Mrs. Gabrielyan was no longer substantially disabled from performing the essential tasks of her employment at Mobile Trans from June 19, 2005 and ongoing. As a result, Mrs. Gabrielyan is entitled to an income replacement benefit from March 24, 2005 to June 18, 2005, pursuant to section 4 of the Schedule.

Income Replacement Benefits — Post-104 weeks:

In order to be entitled to an income replacement benefit post-104 weeks pursuant to subsection 5(2)(b) of the Schedule Mrs. Gabrielyan must prove, on balance, that as a result of the accident she suffered a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Having found that she ceased to meet the substantial disability test on June 19, 2005, I also find that she did not meet the complete inability test from that date. Therefore, Mrs. Gabrielyan is not entitled to receive an income replacement benefit pursuant to subsection 5(2)(b) of the Schedule.

Amount of Benefit:

Mrs. Gabrielyan's entitlement to an income replacement benefit is confined to the period from March 24, 2005 to June 18, 2005, a period for which there is no post-accident income. I accept the accounting report of Matson, Driscoll & Damico Ltd., dated March 20, 2006 and find that Mrs. Gabrielyan's weekly income replacement benefit is $272.45⁷ pursuant to section 6 of the Schedule.

Medical Benefits:

Mrs. Gabrielyan claims a medical benefit of $1,515.90 for treatment costs incurred with Downsview Health Recovery Centre (Downsview) pursuant to section 14 of the Schedule. In order to be entitled to this benefit Mrs. Gabrielyan must prove that on a balance of probability the treatment she received was reasonable and necessary as a consequence of her accident.

Mrs. Gabrielyan testified that while she consistently suffered from neck and back pain and headaches post-accident they were not a significant impediment to her engaging in her activities of daily living. I accept that in respect of her physical symptoms she did not consult with Dr. Moll because she hoped they would resolve on their own. They did not. As a consequence, she consulted Dr. Dimitrios Lianos, a chiropractor employed by Downsview, who testified at the hearing.

Dr. Lianos' initial report notes that Mrs Gabrielyan was assessed by her primary physician two months after the accident and was prescribed anti-depressants and sleeping pills. Dr. Lianos observed significant limitations to Mrs. Gabrielyan's range of motion and recommended physical therapy to alleviate pain and muscle spasm. He rated her prognosis as guarded.⁸ Dr. Lianos also completed a Disability Certificate in which he described her accident-related injuries as cervical joint dysfunction, thoracic: sprain/strain of her joints and ligaments, lumbar spine: sprain/strain and cervicogenic headaches. He assessed these injuries as causing her to be substantially disabled from performing the essential tasks of her employment, caregiving and housekeeping. He also recommended a functional abilities evaluation and a psychological assessment.⁹

Dr. Lianos treated Mrs. Gabrielyan from September 27, 2005 to May 12, 2006 pursuant to 5 Treatment Plans.¹⁰ The Auto Insurance Invoices submitted as evidence indicate that $11,379.08 was invoiced by Downsview for treatment provided during the period.¹¹ Mrs. Gabrielyan claims a payment of $1,515.90 which she submits is the outstanding amount for the treatment she received.

On February 22, 2006, Wawanesa wrote to Mrs. Gabrielyan pursuant to Section 38(12) of the Schedule indicating it would not authorize the treatment recommended by Dr. Lianos in Treatment Plans dated December 2 and 5, 2005 and January 18 and 20, 2006 until a DAC had provided an opinion with respect to the recommended treatment. This letter was copied to Dr. Lianos.¹² On May 9 and May 10, 2006, Mrs. Gabrielyan was assessed by Dennis Griesbrecht, a registered massage therapist and Dr. Peter Aker, a chiropractor, as part of a multi-disciplinary Medical and Rehabilitation DAC.

In his report, Dr. Acker wrote:

I can be convinced that Mrs. Gabrielyan's late-onset musculoskeletal symptoms might be at least in part attributed to the motor vehicle accident on March 17, 2005. She received a reasonable 6-week course of treatment for her symptoms beginning in September, 2005 (Treatment Plan #1.) In my opinion, considering the low level of soft tissue injuries sustained, and the extended time to onset of symptoms, continuing passive treatments beyond 6 weeks (especially considering that she did not comply with her home exercise program) would not be necessary. Therefore, in my opinion Treatment Plans #2 and #3 were reasonable and necessary in part, but not in whole... The therapies provided to Mrs. Gabrielyan were mostly passive. The active therapy components were reasonable, and probably have helped Mrs. Gabrielyan to recover completely. She likely would have recovered even sooner had she been instructed, monitored and encouraged more to do her home exercises. ¹³

Mr. Giesbrecht was of the opinion that a home exercise program would have been as efficacious as massage upon completion of the treatment recommended in the Treatment Plan dated December 2, 2005. He reported that Mrs. Gabrielyan had disclosed that she received massage for 15 to 20 minutes each session. Therefore he was of the opinion that the fees charged by Downsview were outside the guideline of the Ontario Massage Therapist Association. In his opinion, Downsview should have charged $16.79 plus GST for the 15 to 20 minute massage sessions.

Mrs. Gabrielyan testified Dr. Lianos' treatment reduced pain and increased her mobility. She believed she was able to sit for long hours at the hearing due to the treatment provided by Dr. Lianos. I accept her evidence that Dr. Lianos' treatment was helpful.

Dr. Lianos' evidence that Mrs. Gabrielyan consulted with her primary physician regarding the accident is contradicted by Mrs. Gabrielyan's testimony and Dr. Moll's clinical notes and records. Dr. Lianos executed a Disability Certificate which suggested that Mrs. Gabrielyan was substantially disabled from engaging in her child care activities. Mrs. Gabrielyan testified that at no time was she substantially disabled from providing care to her eight year old daughter as a result of the accident. Notwithstanding being given notice in February 2006 that a DAC assessment was being scheduled, Dr. Lianos continued to treat Mrs. Gabrielyan. He completed and submitted a further Treatment Plan knowing a DAC was being conducted with respect to his prior plans. Dr. Lianos' evidence provided no insight into why a hiatus in treatment between February and May would have prejudiced Mrs. Gabrielyan.

It seems reasonable that the emphasis of treatment should have been active therapy with particular attention being paid to monitoring a home exercise program. I therefore prefer the opinions of Dr. Aker and Mr. Giesbrecht to Dr. Lianos. I find that by May 2006 all of Mrs. Gabrielyan's physical impairments had resolved such that a home exercise program would have maintained her recovery. Further, I find that all of the DAC's recommended treatment had been provided prior to Dr. Lianos' Treatment Plan dated April 6, 2006. As well, I agree with Mr. Giesbrecht that a fifteen minute massage therapy session should be billed at 1/4 of the approved hourly rate for treatment received after July 1, 2005. Further, the testimony of the witnesses, the invoices and the Treatment Plans do not provide cogent evidence that the outstanding amount of $1,515.90 relates to treatment approved by the DAC and was provided to Mrs. Gabrielyan prior to April 6, 2006. Nor is there cogent evidence that the outstanding amount does not relate to the excessive billing for massage therapy. Therefore, I find that Mrs. Gabrielyan is not entitled to payment of the claimed sum pursuant to section 14 of the Schedule.

Housekeeping and Home Maintenance:

Mrs. Gabrielyan claims a housekeeping benefit at the weekly rate of $100.00 from March 21, 2005 to December 31, 2005 pursuant to Subsection 22(1) of the Schedule. To be entitled to a housekeeping benefit Mrs. Gabrielyan must prove that, on balance, an accident-related impairment resulted in her being substantially unable to perform the housekeeping services she performed before the accident.

Mrs. Gabrielyan testified that prior to the accident she did all her own housekeeping including the cooking, vacuuming, dusting and cleaning at her apartment on Don Mills Road. Following the accident she hired a woman to do the housekeeping. She testified that she moved from Don Mills Road to another condominium owned by Mr. Kachatrian in 2005.

Mrs. Gabrielyan testified that the depression caused by the accident necessitated hiring the housekeeper not physical disability. She paid the housekeeper $12.00 an hour to do all the tasks that she did prior to the accident. Mrs. Gabrielyan testified that the monthly cost of the housekeeping services was $480.00. In support of these expenses, Mrs. Gabrielyan submitted invoices to Wawanesa.¹⁴ She described these invoices as being compiled from unproduced notes she made prior to retaining her lawyer in September 2005.

Mr. Kachatrian testified that he purchased a second condominium, as an investment property, in April or May 2005. The new property had three bedrooms while the Don Mills property was a small 1 bedroom unit. As the new property was more comfortable, Mrs. Gabrielyan and her daughter divided their time between it and Don Mills Road. While Mrs. Gabrielyan would stay at the new condominium, her primary residence was the Don Mills apartment. Mr. Kachatrian testified that Mrs. Gabrielyan moved from the Don Mills condominium to the house they presently share in September 2006.

I accept Mr. Kachatrian's evidence with respect to Mrs. Gabrielyan's accommodations for the period from March 2005 to present. I find that at the time of the accident, Mrs. Gabrielyan's primary residence was the Don Mills Road condominium and it continued as such until September 2006. Further, I find that although her primary residence was the Don Mills Road condominium she and her daughter frequently stayed at the investment property during the period from May to December 2005.

The housekeeping invoices submitted to Wawanesa for the period from March 24, 2005 to December 31, 2005 all note the investment property as Mrs. Gabrielyan's address. The notes, which were the basis for the invoices, were never produced. Mrs. Gabrielyan testified that the notes recorded the time the housekeeper spent and the amount Mrs. Gabrielyan paid her. The notes did not document the services performed. Mrs. Gabrielyan could not recall what happened to the notes. On the basis of the foregoing, I find the housekeeping invoices, which Mrs. Gabrielyan submitted for the period from March 24, 2005 to December 31, 2005, are an unreliable record of the claimed housekeeping services. Mrs. Gabrielyan failed to clarify at which address the services were provided. Notwithstanding the foregoing, I apply the reasoning set out in the section respecting pre-104 week income replacement benefits above and find that Mrs. Gabrielyan was substantially disabled from performing the essential duties of her housekeeping from March 21 to June 18, 2005. However, I am unable to determine at what residence housekeeping services were provided for the period from May 1 to June 18, 2005. Therefore, I find that Mrs. Gabrielyan is entitled to receive a housekeeping benefit at the weekly rate of $100.00 from March 21, 2005 to April 30, 2005 pursuant to section 22 of the Schedule.

Examination Expenses:

Mrs. Gabrielyan claimed examination expenses pursuant to the provisions of section 24 of the Schedule in force prior to March 1, 2006. In order to succeed she must show that the functional abilities evaluation, proposed work-site assessment and the in-home assessment "are reasonably required in connection with a benefit claimed or the preparation of a treatment plan, disability certificate..." and the fees charged are reasonable.

Having found that Mrs. Gabrielyan was entitled to an income replacement benefit due to psychological disability not physical incapacity, I find that the work-site assessment proposed by Century is not reasonably required to determine her eligibility for that benefit. I make this finding notwithstanding the assessment was approved by Wawanesa on November 24, 2005 at a reduced rate.¹⁵

The Functional Abilities Evaluation was conducted January 12, 2006. Mrs. Gabrielyan did not claim a housekeeping benefit beyond December 31, 2005. As well, she has testified that depression prevented her from performing her housekeeping tasks and returning to employment post-accident not a physical disability. Therefore, the Functional Abilities Evaluation was not reasonably necessary to establish her claim for either an income replacement benefit or a housekeeping benefit.

The In-home Assessment of January 19, 2006 was also conducted after Mrs. Gabrielyan's claim for a housekeeping benefit ended. Although the assessment provided some insight into her potential need for continued medical treatment it did not add significantly to the diagnostic impressions of her treating chiropractor, Dr. Lianos. Therefore, Mrs. Gabrielyan is not entitled to the outstanding balance of $109.40 owed to Century for its in-home assessment.

On the basis of the foregoing, Mrs. Gabrielyan is not entitled to an examination expense pursuant to section 24 of the Schedule.

SPECIAL AWARD:

Mrs. Gabrielyan submitted her claim for benefits 6 months following the accident. Notwithstanding this delay, Wawanesa adjusted the file and paid medical benefits. Although I have found that Mrs. Gabrielyan is entitled to income replacement and housekeeping benefits there is nothing in the evidence that would lead me to conclude that Wawanesa's withholding of those benefits was unreasonable or arbitrary based on the stubborn, inflexible or immoderate conduct of its adjuster.¹⁶ Therefore, Mrs. Gabrielyan is not entitled to a special award pursuant to subsection 282(10) of the Insurance Act.

INTEREST:

Mrs. Gabrielyan is entitled to interest for overdue income replacement benefits and housekeeping benefits pursuant to subsection 46(2) of the Schedule.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue on their own, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

June 28, 2007

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario