Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 138

FSCO A05-002029

BETWEEN:

CATHLEEN ZACH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Elizabeth Nastasi

Heard: November 27, 28, 29, 30, December 1, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on December 21, 2006.

Appearances: Stephen M. Werbowyj for Ms. Zach

Paul Giuliano for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Cathleen Zach, was injured in a motor vehicle accident on January 20, 2003. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on September 30, 2003. The parties were unable to resolve their disputes through mediation, and Ms. Zach 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 Ms. Zach entitled to receive a weekly income replacement benefit in the amount of $400.00 per week ongoing from October 1, 2003 pursuant to section 4 and paragraph 5(2)(b) of the Schedule?
Is Ms. Zach entitled to a payment for $192.50, representing the outstanding cost of a dental assessment conducted by Dr. Goldberg dated July 21, 2004, pursuant to section 24 of the Schedule?
Is Ms. Zach entitled to a special award in accordance with subsection 282(10) of the Insurance Act?
Is State Farm liable to pay Ms. Zach’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Zach liable to pay State Farm’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Zach entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Zach is entitled to receive a weekly income replacement benefit in the amount of $400.00 per week ongoing from October 1, 2003 pursuant to section 4 and paragraph 5(2)(b) of the Schedule.
Ms. Zach is not entitled to a payment of $192.50 for the outstanding cost of a dental assessment conducted by Dr. Goldberg dated July 21, 2004 pursuant to section 24 of the Schedule.
Ms. Zach is not entitled to a special award in accordance with subsection 282(10) of the Insurance Act.
Ms. Zach is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
State Farm is liable to pay Ms. Zach’s expenses in respect of the arbitration under section 282(11) of the Insurance Act. If the parties cannot agree on the amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

Ms. Zach was involved in a motor vehicle accident on January 20, 2003 while on her way to work. She was a seat belted driver, hit from behind while reducing speed on the highway. The impact caused her vehicle to move forward and sustain a second impact with the vehicle ahead of her. The rear of her vehicle sustained in excess of $6,600.00 damage while the front of her car had dents in the bumper.²

Ms. Zach’s primary complaints following the accident were neck and back pain as well as headaches and pain behind her eyes. Ms. Zach testified that she was initially optimistic about her potential for recovery as she was advised that she had whiplash, however when the pain did not subside it led to a state of depression directly related to the accident. It was not until the summer of 2004, 18 months post-accident, that she was diagnosed with a temporomandibular joint disorder (TMD). Ms. Zach testified that her injuries as a result of the accident have prevented her from returning to any full-time employment.

By way of background, the temporomandibular joint (TMJ) is the joint where the mandible (the lower jaw) joins the temporal bone of the skull, immediately in front of the ear on each side of the head. The TMJ is a very complex joint because it both rotates in the socket and glides. It is held together by ligaments and when those ligaments get stretched it can cause misalignment, pain and dysfunction. Some of the symptoms of TMJ dysfunction include sore jaw muscles, ear pain, temple/cheek pain, jaw popping/clicking, locking of the jaw, difficulty in opening the mouth fully and frequent head and neck aches. Some of the studies presented to me by the parties use the term myofascial pain dysfunction or syndrome (MPD) interchangeably with TMD. Other approaches refer to MPD as a separate entity from TMD.³

There was general agreement among the 3 dentists who testified that Ms. Zach is suffering from left side TMJ dysfunction.⁴ For the sake of clarity, I will refer to Ms. Zach’s condition as TMD. Where the experts’ opinions diverge is with respect to the issue of causation.

Causation

The opinion of Dr. Y.K. Goldberg, Ms. Zach’s treating specialist, is that there is a clear causal link between the accident and Ms. Zach’s TMD. Dr. J. Guido, Ms. Zach’s family dentist, said that he could not point to one clear cause for Ms. Zach’s TMD but that when someone has been in a car accident he takes it into account. He also testified that when people have pre‑accident psychological conditions there could be a layering effect which could lead to grinding and clenching. An acute episode like a car accident could then “take you to the next level” – much like the “straw that broke the camel’s back.”

Dr. B. Kryshtalskyj did not testify at the hearing, however, he did examine Ms. Zach at the request of her family dentist, Dr. Guido. The parties had different interpretations of Dr. Kryshtalskyj’s letter dated July 9, 2004. The Applicant argued that Dr. Kryshtalskyj’s letter implied that he thought the motor vehicle accident was the cause of Ms. Zach’s TMD. Dr. Gryfe did not read the letter in this way and did not infer a connection between the sentence indicating that she was in an accident and the next sentence with respect to the TMD diagnosis. The Insurer asked me to draw a negative inference from the fact that the Applicant did not call Dr. Kryshtalskyj as a witness. Without having Dr. Kryshtalskyj present to clarify his thinking with respect to causation, what I take from his letter is that at a minimum he felt the motor vehicle accident was a potential factor to be considered in her diagnosis and/or treatment and that a TMJ injury can be related to a motor vehicle accident.

Dr. J.H. Gryfe was called as a witness by the Insurer. He was qualified as an expert in the field of dentistry and oral maxillofacial surgery. Dr. Gryfe conducted two Fast Track DACs in relation to a TMJ assessment proposed by Dr. Goldberg, as well as a physical examination of Ms. Zach as part of an Insurer’s Examination on September 22, 2006. Dr. Gryfe’s opinion was that Ms. Zach’s pre‑existing mental health condition and the stressors in her life at the time of and following the accident, led to a condition called bruxism – clenching and grinding of the teeth. In Dr. Gryfe’s opinion, bruxism is a common cause of TMD and the most likely cause of Ms. Zach’s condition.

Dr. Gryfe pointed to a combination of factors that led him to conclude that the motor vehicle accident was not the cause of Ms. Zach’s TMD. Most significant were the following:

The time gap between the accident and Ms. Zach’s report of “jaw pain”;
Stress and pre-existing mental condition in conjunction with evidence of bruxism; and
The low impact nature of the accident without a direct trauma to the head and TMJ area.

(i) Delayed Onset Complaint of Jaw Pain

For the Insurer, the fact that Ms. Zach did not clearly complain of “jaw pain” until some 18 months post accident is significant. State Farm’s position was that this delay supports its theory that she had recovered from the accident-related soft tissue injuries.

Ms. Zach gave evidence that after the accident she hurt “all over” and in particular had neck and back pain. There was one reference in her family doctor’s notes that specifically refers to “jaw pain” 2 days after the accident.⁵ The next reference in the evidence to “jaw pain” is in July 2004 after Ms. Zach was seen by Dr. Kryshtalskyj and Dr. Goldberg.

Ms. Zach’s evidence was that in addition to neck and back pain, she also complained of headaches and pain behind her eyes. There is evidence of these types of complaints in the notes of her family doctor, treating psychiatrist and in a letter to the Insurer dated July 2, 2003. By the summer of 2003, six months after the accident, Ms. Zach testified that her back pain had mostly abated. It was at this point that she was able to identify and describe more clearly the pain behind her eyes. She stated that she takes pain medication regularly for TMJ-related pain and described her pain as constant, chronic and disabling.

Ms. Zach’s testimony was that for her, headaches and eye pain were synonymous with jaw pain. She described it as a radiating pain from her left ear to behind her eyes. It was not until July 2004 when she saw Dr. Kryshtalskyj and then Dr. Goldberg, both specialists in the area of TMD,⁶ that she was able to accurately describe her pain as “jaw pain” or TMD. It was only at this point that she had an adequate diagnosis and insight into what was causing her pain.

I accept Ms. Zach’s explanation as credible and persuasive. A review of the disability certificate,⁷ clinical notes and records of her family doctor and treating psychiatrist reveals consistent complaints of headaches and eye pain following the accident. Further, Ms. Zach attended an Insurer’s orthopaedic assessment on May 21, 2003 with Dr. Alpert. After receiving Dr. Alpert’s report, which found that she was not substantially disabled from her pre-accident employment, Ms. Zach wrote to State Farm adjuster Penny Miller. In her letter dated July 2, 2003, she clearly set out why she felt she was not able to work and sit at the computer for long periods of time. Ms. Zach specifically stated: “... I am experiencing severe physical restrictions such as head, eye and neck pain, nausea, extreme fatigue and an inability to concentrate ...”⁸ Her evidence was that Dr. Alpert advised her that he could not comment on her headaches and eye pain as he was an orthopaedic surgeon and could only evaluate those aspects of her injuries within his particular area of expertise. Ms. Zach underwent a Disabilty DAC assessment in August 2003. Ms. Zach testified that she also advised the DAC doctors of her eye pain and headaches.

Ms. Zach testified that in the Fall of 2003, she began to experience a toothache. In October 2003 the pain had become acute and she went in for what her family dentist, Dr. Guido, termed an “emergency examination.” There was a large filling in tooth #2‑6 on the bottom left side that had significant decay underneath which required a root canal. This procedure was initiated in December 2003 and finalized in April 2004. However, following the procedure the pain did not subside and Ms. Zach was still left with a dull ache that went from around her ear to the top of her mouth on the left side of her face.

Ms. Zach saw Dr. Guido again on June 12, 2004 in extreme pain. He noted that she was showing signs of TMD and referred her to Dr. Kryshtalskyj. Ms. Zach began to see Dr. Goldberg for TMD treatment in July 2004. From this point onwards, Ms. Zach specifically used the term “jaw pain” when reporting to her treating physicians and health care practitioners.

Based on the totality of evidence before me, I find that it does not support the Insurer’s position that there was delayed onset of Ms. Zach’s TMD symptoms. I find that it is more probable that Ms. Zach’s lack of clarity in describing her TMJ symptoms contributed to her condition being overlooked or mis-diagnosed by practitioners who were not trained to consider TMD as a possible outcome of a motor vehicle accident.

(ii) Stress and Pre‑Existing Conditions causing Bruxism

Dr. Gryfe’s position was that Ms. Zach’s TMD was caused by bruxism. Bruxism can be defined as an oral para‑functional activity or habit. Bruxism includes teeth clenching and/or grinding and may lead to pain in the temporomandibular joint. Dr. Gryfe’s opinion was that in Ms. Zach’s case, the causative factors that lead to her bruxism were emotional rather than physical.

Dr. Gryfe described Ms. Zach’s personal life at the time of the accident as an “environment of escalating stress.” In addition to her pre‑existing psychological condition of bi‑polar disorder, there were several other stressful life events that occurred around the time of the accident – Ms. Zach’s husband had a heart attack, she was involved in a legal matter with her sister and her mother died. Dr. Gryfe found these factors to be relevant to his diagnosis and his theory on causation. Dr. Gryfe’s evidence was that when he learned about her bi-polar condition it “helped to reinforce what [he] was already beginning to suspect” – which was that psychological factors caused her bruxism which in turn caused her TMD.

Ms. Zach testified that she has coped with depression for many years and despite a number of stressful factors in her personal life, she was coping and managing well at the time of the accident. She had been working consistently for more than 2 years in a full-time job that often required overtime hours. In fact, she had secured another job for slightly higher pay which was scheduled to begin in March 2003.

Ms. Zach testified that the accident was a major cause of both physical and financial stress for her. After the accident, the pain made it more difficult to manage. She said that she had been working since she was 17 years old and found it difficult to not be able to return to work. Ms. Zach testified that she had been initially very positive about her recovery but when the pain did not subside she became depressed.

There are different schools of thought as to whether bruxism directly causes TMD or is an initiating or perpetuating factor.⁹ Dr. Goldberg agreed that some people get TMD because of clenching and grinding. Dr. Guido added that a great deal of the population have bruxism but that it does not necessarily lead to TMD. He felt that bruxism could be a perpetuating factor for TMD but that it was difficult to determine whether wearing of the teeth is from clenching versus normal wear. When Dr. Guido examined Ms. Zach’s x‑rays contained in his clinical notes and records, he found no appreciable change or flattening and no extraordinary wear that would indicate pre-accident bruxism.

Dr. Gryfe testified that in Ms. Zach’s case, indications of bruxism were evidenced by tongue scalloping¹⁰ in combination with the myofascial pain. He indicated that he was not able to identify any tooth wear as a sign of pre-accident bruxism. Dr. Gryfe acknowledged in cross examination that the soft tissue tongue scalloping evidence could have occurred anytime within the one year period prior to his examination. Given that his examination took place on September 22, 2006, one year prior would still have been a period almost 2 years post accident.

I find that based on the evidence presented, Ms. Zach’s tongue scalloping was not indicative of pre-accident bruxism. What I am left with then is evidence of TMD and bruxism but no evidence to determine which came first and when. It is equally likely that post-accident stress and pain led to bruxism which in turn exacerbated the TMD.

(iii) Lack of Direct Impact or Injury

The Insurer adopted the position that a low velocity impact would not likely result in TMD. Dr. Gryfe testified that given all of the factors in this case, the fact that Ms. Zach did not suffer a direct impact as a result of the accident was another factor in support of his theory of causation.

The parties presented journal articles and studies with respect to the competing schools of thought on whether TMD can result in the absence of a direct injury to the head or TMJ area. One approach accepts that mandibular whiplash would result when the head is thrown backwards and the mandible is uncontrollably hyper-extended, resulting in injury to the temporomandibular joint.

Based on the competing theories in combination with the testimony of Ms. Zach, I accept that it is possible that although Ms. Zach did not hit her head in the accident, it could have caused her TMD.

Conclusion

In terms of the expert testimony and journal articles, I found that both lines of thought made compelling arguments. It was however the testimony of the Applicant that was the most significant factor in tipping the causation scale. Based on the totality of evidence, I am satisfied that on a balance of probabilities the motor vehicle accident of January 20, 2003 was either the direct cause of Ms. Zach’s TMD or materially contributed to the development of these symptoms and Ms. Zach’s impairment.

Income Replacement Benefits

(i) Pre-104 week Period

Ms. Zach is claiming entitlement to a weekly income replacement benefits (IRB) in the amount of $400.00 per week ongoing from October 1, 2003. IRB entitlement for the first 104 weeks of disability requires that an insured suffer a substantial inability to perform the essential tasks of his or her pre‑accident employment.

At the time of the accident, Ms. Zach worked at the Oakville Arts Council (OAC) where she was employed as an administrative communications coordinator and graphic artist. She described it as a small office of only 3 employees which meant that she routinely performed a wide range of duties and often worked overtime of up to 50–60 hours per week. At the time of the accident, she had been employed with the OAC for almost 2 years. Her evidence was that during that time she did not have any significant absence or illness that prevented her from working on a full-time basis.

Ms. Zach testified that most of her work at the OAC involved sitting at a computer for long periods of time and required a keen attention to detail. She looked for things like pixel alignment, text content, colour, font and placement.

Ms. Zach’s evidence was that in November 2002 she had secured a higher paying job as a print manager with Barkley Printing – the expected start date was March 1, 2003. The job at Barkley was essentially the same type of job as the OAC with the position at Barkley requiring more driving and sales.

Since the accident, Ms. Zach testified that she is able to sit up and do some work on the computer for approximately 2-3 hours at a time. After doing so, her head and eyes hurt and she often feels nauseous and then has to lie down and rest for several hours. She testified that she often requires an afternoon rest or nap. Ms. Zach consistently reported to several of her treating health practitioners that she has difficulty concentrating which has made it difficult to work in the area of graphic design. These symptoms and restrictions made it impossible for her to continue with her job at OAC or accept the position at Barkley Printing.

Dr. Alpert, who conducted an Insurer’s orthopaedic assessment, and the Disability DAC doctors found that Ms. Zach was not substantially disabled from her pre-accident employment. Pursuant to this determination, her IRBs were terminated on September 30, 2003. At the time of the Insurer’s examination and the disability DAC assessment Ms. Zach had not been diagnosed with TMD.

Dr. Gryfe conducted an Insurer’s Examination of Ms. Zach on September 22, 2006. This was more than 1 year after the post-104 week date. His opinion was that she did not sustain a substantial inability to perform the essential tasks of her employment. He does not elaborate in any detail other than to say that her TMJ complaints “... are not preventing her from returning to her occupational duties.” In his testimony he stated that Ms. Zach was not substantially disabled relative to her TMJ complaints because in his opinion the discomfort would not interfere with her ability to work, however he does not elaborate on why this would be the case. Dr. Gryfe did not give a detailed explanation of Ms. Zach’s impairments in relation to the tasks of her employment. Further, he added that if the symptoms could not be removed completely, they could at least be minimized with non-narcotic medication.

I accepted Ms. Zach’s evidence that her head and eye pain resulted in her inability to concentrate and sit at a computer for more than a few hours at a time. Ms. Zach testified in a clear and forthright manner and I am persuaded, on a balance of probabilities, that she was not able to perform the essential tasks of her employment as a graphic artist from the termination date of her IRBS up to the 104 week point.

(ii) Post-104 week Period

I will turn now to the issue of post-104 week IRB entitlement. Section 5 of the Schedule provides that an insurer is not required to pay an IRB for any period longer than 104 weeks of disability unless, as a result of the motor vehicle accident, the insured person is suffering a complete inability to engage in any employment for which that person is reasonably suited by education, training or experience.

In Lombardi and State Farm Mutual Automobile Insurance Company,¹¹ Arbitrator Sampliner held that:

I find that “complete inability” does not require the degree of impairment that is as high as a “catastrophic impairment” so as to preclude legitimate claims for ongoing disability, nor so low as a “substantial inability,” as that would encourage specious claims after the first 104 weeks.

Ms. Zach’s education and training included courses in the area of computers and graphic design, sales and management. Although she did not obtain a graphic design degree or certificate, she had worked for many years in the industry. At one point she owned her own graphic design business, Nuance Communications, which she was required to wind down due to the care demands of her unwell son.

Neither Dr. Gryfe nor Dr. Goldberg conducted any detailed employment history or vocational assessments with Ms. Zach. I find that they were both somewhat limited in their ability to assess her ability to engage in any employment from the perspective of her education, training or experience. What each expert had to offer was his opinion on whether they accepted that Ms. Zach’s condition could reasonably cause the type and extent of pain symptoms that she has been reporting.

Dr. Goldberg clearly accepted all of Ms. Zach’s subjective pain complaints and on that basis determined that she now suffers from chronic pain disorder. He felt that her reports of not being able to work for more than a few hours at a time were reasonable and consistent given her condition. Dr. Goldberg’s opinion is that the treatment Ms. Zach is now receiving for TMJ disorder can be for pain relief only. He stated that little can be done to cure Ms. Zach and that her condition has entered into the realm of chronic pain.

Although not stated in so many words, Dr. Gryfe clearly did not accept Ms. Zach’s subjective pain complaints or that the pain she complained of was so severe as to prevent her from working. In Dr. Gryfe’s report he states that “... Until such time that the emotional issues are managed appropriately, she will continue to have ongoing oral parafunction and as a result will continue to have the symptoms as reported.” It would appear from this statement that in fact Dr. Gryfe may have accepted some of the symptoms of pain that Ms. Zach is experiencing however questions her approach to recovery. Given that Dr. Gryfe has no training with respect to psychological conditions, his comment on how to manage her emotional issues seems to be overreaching.

It is not possible to objectively measure the amount of pain that someone is experiencing. Nor is it possible to conclusively determine the specific way that pain may manifest in and restrict an individual. Given this, I find that Ms. Zach’s testimony is critical in determining this issue. I accepted that regardless of her pre-existing psychological condition at the time of the accident, Ms. Zach had worked regularly and full time for the 2 years before the accident. I found that Ms. Zach’s complaints of headaches and eye pain were reported consistently to her family doctor, treating psychiatrist, Dr. Alpert and the DAC doctors. She also consistently reported the effects that this pain was having on her, in particular her inability to concentrate and sit at the computer for any length of time.

Ms. Zach did work for a brief period in May and June of 2004. She drove a wheelchair- accessible school bus. It was a part-time job where she worked for a maximum of two 3-hour shifts per day. She testified that the break between shifts allowed her time to rest. This was a part-time job only and ended when the school year ended. She worked a total of 33 hours over a 6 to 8 week period.¹² Ms. Zach also reported earning $700.00 for some graphic design work she did for a friend who was preparing a memoir. She testified that she was able to complete the work as she was permitted to work at her own pace. The invoice she submitted noted that she worked for approximately 3 hours at a time for a total of 20 hours over a 2-week period.¹³

I find the evidence of Ms. Zach’s attempts at employment to be consistent with her evidence that she wanted to work and was not able to do so on a full-time basis. I view these attempts as a positive sign that she made an honest effort to earn a living and was trying to work within her limitations. However, given the reduced and flexible hours available at each of these jobs, I do not consider them to be evidence that she is employable on a regular basis. In addition, I find that part-time bus driving is substantially different in nature and status from her previous position as a graphic artist. Her education, skills and experience are in the area of graphic design. More broadly she also has some experience in both commission based and retail sales. Given her physical limitations and impairments, the evidence does not support that she would be able to engage in a full-time job in a commercially reasonable way without significant and unrealistic accommodation by an employer. As such, I find that her disability prevents her from engaging in any competitive employment.

I find that the surveillance evidence submitted by the Insurer was not particularly helpful in addressing the issue of Ms. Zach’s employability. For the most part it showed Ms. Zach driving to several garden shops, making several purchases and then going home to work in the garden. I find the surveillance submitted was essentially consistent with a largely non‑taxing lifestyle and paced approach to activity in general. These activities in my view do not support a finding that she is able to work.

I am persuaded, on a balance of probabilities, based on the weight of the medical evidence and the testimony of Ms. Zach that she has been unable and continues to be completely unable to maintain continuing, competitive, productive employment for which she is reasonably suited by way of education, training or experience. Accordingly, I find that Ms. Zach meets both the pre- and post-104 week disability test and is entitled to payment of weekly income replacement benefits at the agreed rate of $400.00 ongoing from October 1, 2003.

Section 24

Ms. Zach is claiming entitlement to a payment of $192.50 for the outstanding cost of the dental assessment conducted by Dr. Goldberg pursuant to section 24 of the Schedule.

Dr. Goldberg initially submitted the OCF-22 to State Farm on July 21, 2004. State Farm did not approve the assessment and it was sent to a Fast Track DAC. Dr. Gryfe conducted the DAC review and concluded that a TMJ assessment was not reasonable and necessary. The same OCF‑22 was re-submitted by Dr. Goldberg and a second Fast Track DAC was conducted by Dr. Gryfe on June 9, 2005, almost 1 year later and this time partially approved.

The Applicant’s claim for $192.50 represents the following items that were not approved by Dr. Gryfe:

TMJ Scale (psychometric evaluation) $150.00; and
Photographs $40.00.

Dr. Gryfe’s evidence was that he was not clear on what a TMJ Scale (psychometric evaluation) involved. He submitted that it was not a readily recognized way of assessing TMD. He also noted that he felt the photos were not necessary given that there was no apparent evidence of scars or trauma in the area under review.

I did not receive any submissions from the Applicant on these specific items and as such I find that the Applicant has failed to meet her onus to prove that they were in fact reasonable and necessary aspects of the TMJ assessment. As I received no uncontradicted evidence in respect of this issue, I find that Ms. Zach is not entitled to a payment of $192.50 for the outstanding cost of the TMJ assessment conducted by Dr. Goldberg.

SPECIAL AWARD

The Applicant claims a special award pursuant to subsection 282(10) of the Insurance Act. Subsection 282(10) states that an arbitrator shall order a special award if he or she finds that the insurer “has unreasonably withheld or delayed payments.” Ms. Zach submits that State Farm’s conduct falls within the scope of this section in the following ways:

State Farm wrongly terminated IRB payments;
State Farm did not reinstate IRB payments after receiving a diagnosis of TMD and thereafter failed to make any serious inquiry into the nature and extent of Ms. Zach’s TMJ impairment once a diagnosis was received; and
State Farm’s initial denial of Dr. Goldberg’s TMJ assessment led to a delay of TMD treatment which caused “unreasonable and prolonged suffering for Ms. Zach and has contributed to her “state of chronic pain.”

In order to exercise an arbitrator’s discretion to order a special award, the insurer must act in a manner that is beyond mere mistake. “Unreasonable” behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.¹⁴ Commission adjudicators have consistently held that the special award enquiry “involves looking at the total context in which the [insurer’s] decisions relating to the insured’s benefits were made.”¹⁵ The standard “is not perfection” and the insurer’s decisions will not be judged with the advantage of hindsight.¹⁶ Of particular relevance to this case is the view of many arbitrators that the failure of an insurer to re-evaluate its position in light of new evidence will give rise to a special award.¹⁷

Ms. Zach submitted that State Farm eventually accepted both the diagnosis and the etiology of her TMD, however did not reinstate her IRBs or re-evaluate its position in this regard. The basis for this position is that State Farm eventually approved Dr. Goldberg’s TMJ assessment and subsequently paid for TMD treatment.

State Farm contends that it at no time accepted Ms. Zach’s version of etiology and is therefore not estopped from denying causation. State Farm submitted that the payments made to Ms. Zach with respect to TMD treatment were made in good faith. At the time of Dr. Goldberg’s report in June 2005 and subsequent Treatment Plan, State Farm did not have any other assessment to refute causation. Both of the DAC assessments conducted by Dr. Gryfe were paper reviews only. Dr. Gryfe conducted an Insurer’s Examination of Ms. Zach on September 22, 2006 in which he assessed eitiology as well as pre- and post-104 week IRB entitlement. Dr. Gryfe’s opinion that the accident was not the cause of Ms. Zach’s TMD remained the same throughout.

It is common ground that an insurer may be entitled to rely on the opinions of the assessors it retains to determine whether it will continue to pay benefits to an insured person or not. State Farm submitted that it always relied on medical experts and medical documentation in making its determination to terminate Ms. Zach’s IRBs and with respect to the issue of causation.

In this case, the experts who testified had different theories and approaches to TMD as a result of accident-related whiplash. Both presented journal articles in support of their approach and it was a difficult case to assess in terms of causation. The fact that Ms. Zach’s TMD was not diagnosed until 18 months after the accident added to the complexity of the case. The causal link between Ms. Zach’s TMD and the accident was not obvious.

Although I did not find that the conclusions of the medical assessors that State Farm relied on were adequate in determining Ms. Zach’s eligibility for IRBs, I am not persuaded that it acted unreasonably in relying on these assessments in making its determinations. Accordingly, I find the Applicant has failed to establish a basis for a special award claim.

EXPENSES:

The Applicant was largely successful in this arbitration and as such I find that she is entitled to her expenses. As the parties made no submissions to me with respect to expenses I encourage them to resolve this issue on their own. If the parties cannot agree on the issue of entitlement or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code.

July 13, 2007

Elizabeth Nastasi Arbitrator

Date