Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 1

FSCO A05-002940

BETWEEN:

PRIYA RAGULAN

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers

Heard: May 28 and 31 and September 21, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Steven Sieger, solicitor for Mrs. Ragulan Mr. David Silverstone, solicitor for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Priya Ragulan, was injured in a motor vehicle accident on January 23, 2004. She applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security”), payable under the Schedule.¹ Security terminated weekly income replacement benefits and housekeeping benefits on September 8, 2004 and August 19, 2004. Mrs. Ragulan claimed further entitlement. The parties were unable to resolve their disputes through mediation, and Mrs. Ragulan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Ragulan entitled to income replacement benefits of $389.02 per week, from September 9, 2004 to January 22, 2006, pursuant to section 4 of the Schedule?

2. Is Mrs. Ragulan entitled to payment of $100 per week, from August 20, 2004 to December 17, 2004, for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?

3. Is Mrs. Ragulan entitled to payment of $994.84 for treatment at Rehab Works, pursuant to section 14 of the Schedule?

4. Is Mrs. Ragulan entitled to payment of interest on any overdue amounts pursuant to subsection 46(2) of the Schedule?

5. Is either party liable to pay the other’s expenses of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Mrs. Ragulan is not entitled to income replacement benefits of $389.02 per week, from September 9, 2004 to January 22, 2006.

2. Mrs. Ragulan is not entitled to payment of $100 per week, from August 20, 2004 to December 17, 2004, for housekeeping and home maintenance services.

3. Mrs. Ragulan is not entitled to payment of $994.84 for treatment at Rehab Works.

4. The decision on the issue of expenses is reserved to be resolved in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

MOTION TO EXCLUDE:

The first morning of the hearing was taken up by a motion Security brought, for an order excluding certain documents and Dr. Zarnett as a witness. I ruled that the clinical notes and records of Dr. Selvananthan, the MRI report by CML Healthcare, dated November 28, 2005 and the report of Dr. Zarnett dated December 21, 2006, all served on Security five days before the hearing, would be excluded. I denied Security’s request to exclude Dr. Zarnett as a witness.

Dr. Zarnett is an orthopaedic surgeon who assessed Mrs. Ragulan on two occasions.

Dr. Selvananthan is Mrs. Ragulan’s current family doctor who started treating her some time after the accident. I also ruled that because Mrs. Ragulan’s breach of her production obligations had caused Security to bring the motion, Security would be entitled to its expenses of the morning spent hearing it, in any event.

Mrs. Ragulan’s opposed my hearing the motion. She submitted that Security should have brought it earlier, or sought an adjournment in order to bring a third-party motion under Rule 67.4 of the Dispute Resolution Practice Code. I ruled that the motion was properly brought before me and that if a third-party motion was required, it was Mrs. Ragulan’s obligation to bring it, not Security’s.

The background is as follows: The hearing was originally scheduled to start on December 18, 2006, but it was adjourned because Mrs. Ragulan had not complied with the production agreement she made at the pre-hearing on July 27, 2006. Correspondence from Mrs. Ragulan’s counsel showed that little effort had been made to comply with production obligations, prior to the first hearing date. Some requests had been sent, but not a single follow-up letter. After the adjournment, counsel again sent out some of the same requests, but the correspondence did not indicate that earlier requests had been made and there was again no follow-up. In addition, although Mrs. Ragulan proposed that Security should have brought a third-party motion, she did not inform Security that she was having any difficulty complying with her production obligations.

I found that Mrs. Ragulan had been cavalier in her efforts to comply with the production agreement, resulting in the earlier adjournment. I found that she had not made significant efforts to comply, even after the hearing was adjourned and was still in gross breach of her production obligations. I concluded that the recently produced documents should therefore be excluded.

Security submitted that Dr. Zarnett should be excluded as a witness. He conducted medical-legal assessments of Mrs. Ragulan on April 13, 2006 and December 21, 2006. As noted above, I excluded the report from the assessment of December 21, 2006. Although the report of April 21, 2006 was properly served, it indicated that Dr. Zarnett had reviewed documents that had never been produced to Security or to Dr. Chaiton, an orthopaedic surgeon who had assessed Mrs. Ragulan for Security.

I ruled that Mrs. Ragulan had complied with the prerequisites for calling Dr. Zarnett as an expert witness, established by Rule 42. The April report did contain the “substance of the fact and opinion” of Dr. Zarnett, as required by Rule 42.2(c). However, I found that Security reasonably expected to be able to have Dr. Chaiton comment on any aspects of Dr. Zarnett’s opinion that were based on the documents that were not produced. Because there was no evidence that Dr. Chaiton could not do so without seeing the documents themselves, I ruled that the prejudice to Security would be remedied by allowing Dr. Chaiton to comment in his testimony, without first providing a report. I ruled that I would revisit the issue, if it turned out that Dr. Chaiton’s ability to comment was restricted by not seeing the reference documents.

EVIDENCE:

Background

On January 23, 2004, Mrs. Ragulan was driving her 2003 Toyota Corolla, on the way to pick up her daughter from school. She had her young son in the back seat. She was making a left turn at the traffic lights at the Midland and Finch intersection, when she collided head-on with a TTC bus. Her son suffered a broken nose. She said that he was covered in blood. That appeared to be the most serious injury. Mrs. Ragulan testified that her immediate worry was more for her son than herself.

The bus driver called the police and ambulance. Mrs. Ragulan and her son were taken to Scarborough Grace Hospital for emergency treatment. She testified that they wanted to keep her overnight, but she decided to go home because her son was scared. She felt chest pain the next day and went to a Walk-In Clinic where they told her that something was broken. X-Rays revealed that she had suffered a cracked sternum.

On January 27, 2004, she submitted an Application for Accident Benefits.² The Application indicates that at the time of the accident, she was employed as a claims advisor by K.R.S. Auto Accident Benefit and Allied Services Inc., working 40 hours per week.

Mrs. Ragulan did not return to work after the accident. Security paid income replacement benefits until September 8, 2004, when they were terminated, based upon the opinion of Dr. Chaiton who had assessed Mrs. Ragulan on August 5, 2004. Dr. Chaiton concluded that Mrs. Ragulan had completely recovered.

Mrs. Ragulan submitted claims for housekeeping benefits on May 25, 2004, September 12, 2004 and December 25, 2004. She claimed $100 per week for services provided from January 23, 2004 to December 17, 2004. Security commissioned the first of a series of In-Home Assessments on February 25, 2004. The assessor concluded that Mrs. Ragulan required assistance for 5.2 hours per week in order to complete her housekeeping tasks.³ The conclusion on a follow-up assessment on March 15, 2004, was that she continued to need 5 hours of weekly assistance.⁴ Some improvement was noted on further assessment on April 15, 2004. The recommendation was four hours per week of continued assistance.⁵ That recommendation was repeated on assessment on May 4, 2004. After an assessment on June 7, 2004, the assessor reported that Mrs. Ragulan had resumed performing her housekeeping activities in moderation, using educational strategies and assistive devices provided. According to the assessor, Mrs. Ragulan said that she only required occasional assistance at that time with vacuuming and cleaning bathrooms. The assessor concluded that she had no further role to play in assisting Mrs. Ragulan in achieving independence with housekeeping tasks. She therefore closed her file.⁶ Security continued paying housekeeping benefits, until August 19, 2004, when they were terminated, based upon Dr. Chaiton’s opinion of August 5, 2004.

For 7 or 8 months after the accident, Mrs. Ragulan received treatment at Adaptive Rehabilitation Services. She testified that the treatment consisted of massage and exercises. She testified that she derived little benefit from this treatment and therefore went to see Dr. Sarathy, a chiropractor at Rehab Works. He recommended treatment and submitted a treatment plan with an estimated cost of $2,394. Security declined to pay for the treatment and referred the plan for assessment by a DAC. The DAC concluded that the proposed treatment was not reasonable and necessary.

The Expert Evidence

The only medical evidence Mrs. Ragulan provided to support her claims was testimony of Dr. Zarnett and his opinion, expressed in his report of April 13, 2006. Although she had agreed to do so, she did not produce the clinical notes and records of her former family doctor who treated her before and after the accident, or of the Walk-In Clinic she attended after the accident. As noted above, the clinical notes and records of her current family doctor were excluded because they were not produced until the eve of the hearing.

In his report, Dr. Zarnett gave the opinion that Mrs. Ragulan continued to experience accident related restriction of her ability to perform heavier pre-accident housekeeping tasks and to engage in pre-accident employment. He noted that her major ongoing problem was low back pain, radiating into her left leg, caused by a herniated disc. He concluded that Mrs. Ragulan’s symptoms were consistent with a herniated disc and noted that an MRI, which he did not examine, had disclosed a herniated disc.⁷ He linked Mrs. Ragulan’s ongoing back pain to the accident because he had no evidence of back problems before the accident and a history of complaints immediately after it.

Dr. Zarnett confirmed this opinion in his oral testimony. He agreed that the disc abnormalities revealed in a CT scan done on May 2, 2005, were probably age-related and pre-existed the accident. His opinion was that Mrs. Ragulan would be unable to sit for extended periods and would have difficulty bending and lifting.

Under cross-examination, Dr. Zarnett agreed that his opinion did not address the issue of the disputed treatment. He admitted that he could not comment on Mrs. Ragulan’s condition during the period for which she claimed housekeeping benefits, except to say that she told him she was restricted in her ability to engage in pre-accident activities. He admitted that, although he concluded that her symptoms would “interfere with her ability to resume her pre-accident employment,” he expressed no opinion on whether she suffered a substantial inability to engage in her pre-accident employment.

Security relied primarily on the opinion of Dr. Chaiton. As noted above, Security terminated weekly benefits upon Dr. Chaiton’s opinion that Mrs. Ragulan had fully recovered, after he examined her on August 5, 2004. Dr. Chaiton confirmed his opinion that he could find no orthopaedic explanation for Mrs. Ragulan’s complaints of pain. He indicated that his review of material that was provided after his examination did not change his opinion. Specifically, his opinion was that the CT scan of May 2, 2005, showed mild changes, probably age related. He found no correlation between the abnormalities in the scan and Mrs. Ragulan’s symptoms. For example, the scan showed changes on the right side, while Mrs. Ragulan complained of pain on her left.

Dr. Chaiton conceded in cross-examination that his failure to find an objective basis for Mrs. Ragulan’s complaints did not mean that she was not feeling pain. That was a subjective matter. He agreed that Mrs. Ragulan could have been experiencing pain as a result of a psychological condition, beyond his area of expertise. He also agreed that a herniated disc could cause occasional pain. His testimony was that this condition does not usually cause impairment.

Security also relied on the opinion of Karen Searle, an expert in Kinesiology, who conducted a Job Site Analysis⁸ and a Functional Abilities Evaluation⁹ in February 2006. The purpose of these assessments was to compare Mrs. Ragulan’s functional abilities to the requirements of her pre-accident job. Ms. Searle’s expertise is not in diagnosis, but in obtaining objective values of relevant functional ability.

After extensive testing, Ms. Searle concluded that Mrs. Ragulan met all job demands, with the exception of forward reach and sitting. She reported that Mrs. Ragulan’s employer was prepared to accommodate a return to work plan, including modified hours and duties. Her information was that Mrs. Ragulan’s employer would allow her to start at four hours per day and to avoid lifting. Ms. Searle testified that she thought that Mrs. Ragulan would have required both of those accommodations and that she would have made those recommendations, had she been asked to prepare a return-to-work program. She would have recommended increasing hours, over a three week period, until full-time hours were achieved. Her evidence was that a recommendation of a gradual return to work was her general practice, not based on decreased functional abilities, but on deconditioning due to time off work. That would have been the basis of her recommendation for Mrs. Ragulan.

Ms. Searle noted that “the results of this evaluation suggest that Mrs. Ragulan gave an inconsistent effort, with 13 of 32 consistency measures above expected limits.” She stated in her report that she did not believe that the tests were a true indication of Mrs. Ragulan’s abilities.¹⁰ She conceded under cross-examination that she could not say whether sub-maximal effort was caused by pain restriction or by lack of motivation. She also conceded that her opinion addressed Mrs. Ragulan’s function at the time of her assessment and that she could not comment on her abilities at the time that benefits were terminated.

On the issue of treatment, Security relied on the DAC assessment conducted on January 5, 2005.¹¹ The assessment was conducted by Dr. David Bereznick, kinesiologist and chiropractor. He concluded that the proposed treatment was not reasonable and necessary. Three principal factors influenced his opinion. First, it was much too long after the accident for the proposed passive therapy to provide therapeutic gain. Second, Mrs. Ragulan reported no therapeutic gain. Third, there were no objective indicators of musculoskeletal or neurological injury that would explain the ongoing complaints.

Surveillance

Security sought to introduce videotapes of surveillance of Mrs. Ragulan, conducted on January 23 and 24, 2006 and in November 2006. Mrs. Ragulan objected on the grounds that they are irrelevant. I ruled that the January surveillance, because of its proximity to the period in dispute, was relevant to Mrs. Ragulan’s claim that she was unable to perform her pre-accident employment duties, until January 22, 2006. The surveillance of November 2006 was excluded because it was done too long after the period in dispute to be of any probative value.

On January 23, 2006, Mrs. Ragulan was observed going into Path Financials Inc. at around 11:00 a.m., and leaving around 3:00 p.m.¹² She entered, using a key. The investigator attended at Path Financials Inc. and was given a business card with Mrs. Ragulan’s name on it. On January 24, 2006, she was again observed entering Path Financials Inc., at around 10:24 a.m. She left at 2:00 p.m., and returned for a short time at 5:47 p.m. Mrs. Ragulan displayed no obvious signs of discomfort during the surveillance conducted on January 23 and 24, 2006.

Mrs. Ragulan’s evidence

Mrs. Ragulan testified that she did virtually all of the work in and around the house before the accident. Her husband traveled a lot for work and only helped a little when he was in town. Among other things, she cooked, cleaned, took the kids to school and picked them up, did the laundry, took out the garbage, took care of the garden and cut the grass. She also worked 40 hours per week at K.R.S. Auto Accident Benefit and Allied Services Inc.

After the accident, she experienced chest pain, lower back pain and headaches. The pain later spread to her shoulder, then her left arm, then her left leg. She could do nothing at all for the first 10 days after the accident and could not lift anything for a long time. After a while she started doing little things.

Her first course of treatment was at Adaptive Rehabilitation. She went there for 7 or 8 months, finishing around July or August 2004. The treatment consisted of massage and exercises, some of which she was instructed to do at home. Mrs. Ragulan testified that the treatment helped a little but, frustrated with her lack of progress, she decided to try something else and went to see Dr. Sarathy, a chiropractor at Rehab Works. His treatment was massage, exercises and electrical stimulation. Her testimony was that this treatment helped quite a bit in managing her pain. She experienced relief for a day or two and then the pain returned. There was no long term improvement. She went a couple of times after Security stopped paying. Her recollection was that this was around 2005. After that she did not go back because she was worried about not being able to pay. Her testimony was that she later went for some further massage therapy which she paid for herself, ending 4 or 5 months before the hearing began.

Mrs. Ragulan testified that she retained “Ravi”, whose full name she could not remember, to help with housekeeping and home maintenance, until December 2004. She did not know him before the accident. Her husband found him, through one of his clients. He stopped coming because she did not pay him. While he was coming, she tried to do as much as possible, but she could not do everything. He did most of the work around the house until December, 2004. Her evidence in chief was that she told him that she would pay him and she paid him $100 or $120 a week. She testified that, after Ravi stopped coming, she had “another lady” come in to help and her husband also helped, but she did not submit invoices to Security.

In cross-examination, Mrs. Ragulan indicated that Ravi came for 3 or 4 hours a day, when she needed help. Sometimes he came more than once a week. He probably came two days a week or sometimes three. She paid him $10 per hour. She admitted that she had no recall of how much time he helped in any particular week or month and she kept no records of his time or what he did on any particular day. She then said that Ravi was never paid.

She was shown the invoices she submitted for services provided from March to December, 2004.¹³ All of the invoices state that Mr. Thellore Ravisankar received the sum of $400 for helping Mrs. Ragulan with housekeeping over a four-week period. No other details were provided in the invoices and Mrs. Ragulan could not recall what services were provided for any of the invoices or how long the housekeeper attended.

Mrs. Ragulan testified that her work involved long hours of sitting. She spent a lot of time on the telephone. She sometimes had to lift boxes that were stored in the basement. She indicated that she attempted to return to work around September 2005. She went in during 3 or 4 weeks over a 2-month period. She did about 12 or 13 hours in total. She was not paid. She just went in to see whether she could do it. She experienced severe headaches and could not sit for long. Her evidence was that her employer told her that they needed someone there full-time and could not offer modified hours. She indicated that the person who allegedly told Karen Searle that modified hours and modified duties were available was not her boss. She has not returned to that job.

Her evidence was that her friend owns Path Financials Inc. He is in the mortgage brokerage business. She was offered a position at a new office that opened in January 2006. Her job would be to bring in clients through her contacts in the Sri Lankan community. The position appealed to her because it offered flexible hours. When shown the videotape of her attendance at Path Financials in January 2006, she testified that she got a key when the business opened around January 2006. She was there for training and continued training until June 2006, when she started working part-time. She still works at Path Financials. She testified that her friend had business cards made for her, when he opened the office. She testified that the office was always locked, although other people were inside. That is why she needed a key to get in. Her evidence was that she probably returned to the office in the evening on January 24, 2006, to pick up a fax for her boss, who lives in Mississauga.

ANALYSIS AND FINDINGS

For her claim for housekeeping and home maintenance benefits to succeed, Mrs. Ragulan must prove that her accident related injuries caused a substantial inability to engage in her pre-accident housekeeping and home maintenance activities from August to December 2004. She must also show that she incurred the additional expense of the amounts claimed for housekeeping and home maintenance benefits, for someone else to do the work she did before the accident.

To prove entitlement to the claimed income replacement benefits, she must show that her accident related injuries caused a substantial inability to engage in the essential tasks of her pre‑accident employment from September 2004 to January 2006. To prove entitlement to payment for the claimed treatment, she must show that the treatment was reasonable and necessary for injuries sustained in the accident.

Mrs. Ragulan presented no medical evidence from anyone who examined her before or during the critical period. Although she agreed to do so, she did not produce the clinical notes and records of Dr. Mahesan¹⁴, she did not produce the records of her current employer and she did not produce her post-accident income tax returns. She did not call her former employer to confirm her evidence that Karen Searle was misinformed about accommodations available for her to return to work or of her unsuccessful attempt to return to work. She did not call Ravi to confirm that he provided housekeeping services. Her claims rest entirely on her own testimony, the opinion of Dr. Zarnett, who examined her for the first time, after the period of her claims and any support for her position in the evidence Security presented.

Entitlement to Housekeeping Benefits

I find that Mrs. Ragulan has not proven that, on a balance of probabilities, she was substantially unable to perform her pre-accident housekeeping and home maintenance duties, from August to December 2004. The 5 In-Home Assessments that Security conducted between February and June 2004 show a pattern of gradually improving function, to be expected after an injury.¹⁵ In her evidence, Mrs. Ragulan confirmed that she gradually improved and was able to resume some of her duties, but she insisted that she incurred the same expense for assistance in August as she did immediately after the accident. She provided no clear picture of what she could and could not do and no supporting medical opinion from someone who assessed her at the time. Not only was Dr. Zarnett’s assessment well after the period of the claim, but he admitted that his opinion on the need for housekeeping assistance at the critical time was based only upon Mrs. Ragulan having given him a history to that effect. Dr. Zarnett conducted no specific testing in that regard.

Sonia Anderson, an occupational therapist,¹⁶ conducted the final In-Home Assessment on June 2, 2004. No testing was done. Ms. Anderson asked Mrs. Ragulan to compare the areas in which she experienced difficulty immediately after the accident with her current ability. She reported that Mrs. Ragulan had resumed most tasks, although she required some pacing and assistive devices. According to Ms. Anderson, Mrs. Ragulan indicated at that time that the only assistance she still required was occasional help with vacuuming and cleaning of bathrooms at that time. When Dr. Chaiton assessed her on August 5, 2004, Mrs. Ragulan told him that she was still receiving assistance with housekeeping for 5 to 10 hours per week. As noted above, her testimony did not present a clear picture of her ability at the critical period.

Dr. Chaiton’s opinion that there were no musculoskeletal, rheumatic or neurological problems to explain Mrs. Ragulan’s ongoing complaints is consistent with her testimony regarding her gradual improvement and her charted improvement in the In-Home Assessments.

I accept Dr. Chaiton’s opinion. I give no weight to his concession in cross-examination that her complaints might have a valid psychological explanation. Mrs. Ragulan did not claim to have suffered a psychological illness and there was no medical evidence of one.

I do not accept Dr. Zarnett’s opinion that Mrs. Ragulan’s back pain, her major complaint at the time he saw her, was accident related. He linked the pain to the accident because of an absence of a history of back pain before the accident, but he had no medical records to support that history and Mrs. Ragulan has still not produced them, despite agreeing to do so. He also linked the pain to the results of the CT scan that he reviewed, without any reference to the specifics of how the results of the scan could be linked to the pain. I prefer Dr. Chaiton’s opinion that the specific changes disclosed in the CT scan could not be the source of the pain that Mrs. Ragulan described.

Even if Mrs. Ragulan were able to prove that she suffered a substantial inability to perform her pre-accident housekeeping duties at the critical time, I find that she has not proven that she incurred additional expense for someone else to perform those duties. Although a perfect record of expenses is not always required, the circumstances dictated that some records would be kept in this case. Mrs. Ragulan’s job before the accident was assisting insured persons in making claims for accident benefits. She must have known the importance of keeping records. In addition, the fact that she was receiving services from someone she had no relationship with before the accident, would have tended to dictate a formal arrangement. The need for formality would have been heightened if, as Mrs. Ragulan claimed in cross-examination, the housekeeper was not paid for his services.

The testimony that the housekeeper was not paid also depreciates the probative value of the invoices submitted in support of the claims, which indicate that payment was received.¹⁷ Of course, Mrs. Ragulan also claimed that she had paid the housekeeper. One would expect her to have a clear recollection of whether or not she owes money for services provided by a stranger. In these circumstances, corroboration from the housekeeper or other proof of payment was essential. The housekeeper was not called as a witness and no explanation was given for his absence.

Entitlement to IRBs

I find that Mrs. Ragulan has not proven that she was substantially unable to perform the essential tasks her pre-accident employment for the period from September 9, 2004 to January 22, 2006. Her evidence was that she tried to return in September 2005, but was forced to stop because of pain and headaches. She was silent on what her daily routine was for the entire balance of the disputed period. Medical records might have confirmed her ongoing treatment, but she did not produce them. Tax returns might have confirmed a lack of income, but she did not produce them. No explanation was given. I infer that these records would not have supported her claim. Her employer could have been called as a witness to confirm her claim of an unsuccessful attempt to return to work and he was not, again without explanation. I infer that he would not have confirmed her evidence. I note that she also did not tell Ms. Searle about her attempt to return to work. That would have been important information for Ms. Searle to have in arriving at her conclusion regarding Mrs. Ragulan’s ability to work and she could have confirmed it with the employer.

Mrs. Ragulan’s own evidence on the work she admitted doing does not ring true. First, she claimed to have returned to work, without pay. No explanation was given for this unusual arrangement. Second, it appears unlikely that her arrangement with Path Financials Inc. was as recent as she claimed, when she accessed the office with a key, returned alone after business hours and had a business card. Those are not hallmarks of a newly hired trainee. I do not accept the explanation that the reason she had a key is because the office was always locked. One would expect that an office in which a mortgage brokerage operated would be open to its clients and no explanation was offered for the unusual arrangement at this office. In addition, Security’s agent reported no difficulty gaining access when he got her business card.¹⁸

I do not accept Mrs. Ragulan’s submission that Ms. Searle’s opinion that she did not meet sitting and reaching requirements of her job supports her claim. Ms. Searle discounted her own opinion because she was not satisfied that Mrs. Ragulan performed at maximum effort. Ms. Searle did concede the possibility that the sub-maximal effort was caused by pain or fear of pain, but, as noted above, I find no reliable medical evidence that Mrs. Ragulan suffered accident related impairments after September 2004.

Entitlement to disputed treatment

I find that Mrs. Ragulan has not proven that the disputed treatment was reasonable and necessary. Mrs. Ragulan provided no medical opinion to support this claim. I do not accept her submission that the treatment plan itself is evidence of its reasonable necessity. One might infer that the submitting doctor considered the treatment reasonable for some purpose, but there is nothing to indicate that the purpose is consistent with the requirements of the Schedule or that the treatment was necessary.

I accept the opinion of Dr. Bereznick, who conducted the DAC assessment. I find that it was not reasonable to continue further passive treatment, similar to the treatment which Mrs. Ragulan had discontinued because of its ineffectiveness, and that it was much too long after the accident for the proposed passive therapy to provide therapeutic gain.

CONCLUSION:

Because Mrs. Ragulan has not been successful in any of her claims, an order will be made dismissing the Application.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 7, 2008

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 1

FSCO A05-002940

BETWEEN:

PRIYA RAGULAN

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

ARBITRATION ORDER

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

1. The application is dismissed.

2. The decision on the issue of expenses is reserved to be resolved in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 7, 2008

Jeffrey Rogers Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 20
3. 3Exhibit 4
4. 4Exhibit 5
5. 5Exhibit 5
6. 6Exhibit 6
7. 7The MRI was among the documents excluded. None of the expert witnesses examined it.
8. 8Exhibit 14
9. 9Exhibit 19
10. 10Exhibit 19, Page 2.
11. 11Exhibit 13
12. 12Exhibits 15 and 18.
13. 13Exhibits 9, 10 and 11.
14. 14Counsel attempted to introduce in his submissions, three disability certificates signed by Dr. Mahesan, Mrs. Ragulan’s former family doctor, but I refused to admit them, ruling that it would be unfair to accept further evidence at that time.
15. 15Exhibits 4 to 8
16. 16Exhibit 8
17. 17Exhibits 10 and 11
18. 18Exhibit 15