Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 128
FSCO A04-001076
BETWEEN:
MR. M
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: William J. Renahan
Heard: April 14, 15, 16, 17, 21, 22 and 23, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Tally Vanounou for Mr. M
Ian Kirby for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Mr. M, was injured in a motor vehicle accident on August 5, 2003. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company, payable under the Schedule.1 Wawanesa terminated weekly income replacement benefits on January 10, 2004. The parties were unable to resolve their disputes through mediation, and Mr. M 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 Mr. M entitled to income replacement benefits after January 10, 2004?
What is the amount of income replacement benefit?
Is Mr. M entitled to $7,979.05 pursuant to section 14 of the Schedule for services provided by Canadian Active Rehabilitation?
Is Mr. M entitled to $400 for medications pursuant to section 14 of the Schedule?
Is Mr. M entitled to the following pursuant to section 24 of the Schedule:
$4,308.60 for psycho vocational assessments performed by Dr. Long;
$1,325.29 for a Functional Abilities Evaluation performed by Century
Diagnostics; and $1,503.72 for an orthopaedic assessment performed
by Dr. Salim Esmail?
- Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(10) of the Insurance Act?
Result:
Mr. M is not entitled to income replacement benefits after January 10, 2004.
The amount of any potential income replacement benefit is zero.
Mr. M is not entitled to $400 for medications pursuant to section 14 of the Schedule.
Mr. M is entitled to $7,028.58 pursuant to section 14 of the Schedule for services provided by Canadian Active Rehabilitation together with interest calculated in accordance with section 46 of the Schedule. If the parties cannot agree on the amount of interest, they may make written submissions to me.
Mr. M is not entitled to the following pursuant to section 24 of the Schedule:
$4,308.60 for psycho vocational assessments performed by Dr. Long;
$1,325.29 for a Functional Abilities Evaluation performed by Century
Diagnostics; and $1,503.72 for an orthopaedic assessment performed
by Dr. Esmail.
- If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, they may make written submissions to me on the issue. The requestor has 30 days to make written submissions and the respondent has 15 days to respond in writing.
EVIDENCE AND ANALYSIS:
Background:
Mr. M is now 44 years old. He came to Canada in 1975, where he met and married his wife. They have three children aged 8, 11 and 13.
Mr. M was injured when his vehicle was struck as it left a shopping centre parking lot. He suffered a laceration above his eyebrow and soft tissue injuries. He was examined in hospital and after receiving six sutures to close the wound, he was released.
The first main issue is the nature of Mr. M’s employment, if any, at the time of the accident.
In his application for benefits, Mr. M stated that he was self-employed in a business operated under the name Rush Taxi since March 25, 2003. The Confirmation of Income he submitted indicated that he was employed as a dispatcher by Eleven Eleven Taxi since May 12, 2003 at $400 per week. Eleven Eleven Taxi is owned by the husband of Mr. M’s sister and the husband’s brother.
Wawanesa hired an accountant, McCulley and Associates Inc., to investigate Mr. M’s employment situation. Mr. Darrell Sherman of that firm could not determine whether Mr. M was employed at the time of the accident, or how much he earned. At mediation, Wawanesa agreed to pay Mr. M an Income Replacemnt Benefit (“IRBs”) of $50 per week up to January 10, 2004, on the understanding that Mr. M would have to repay it if an arbitrator subsequently determined that Mr. M was not entitled to an IRB. Repayment of IRBs was not raised as an issue at the pre-hearing, or at this hearing.
Since coming to Canada, Mr. M has not engaged in full-time employment, other than the alleged 12-week period with Eleven Eleven Taxi. He has driven a taxi and done some part-time work as a dispatcher with Eleven Eleven Taxi. He has also done odd jobs such as painting, selling cars and some factory work. He has had long periods of unemployment. In 1999 or 2001, he operated a restaurant for three or four months before declaring bankruptcy. He has lived on social assistance from time to time and always lived in subsidized housing.
Mr. M’s most serious pre-accident medical condition is type II diabetes, which all the medical records indicate, despite Mr. M’s testimony to the contrary, was uncontrolled as he failed to attend education seminars and failed to follow recommendations by his health care providers.
The other main issue is the reasonableness of the treatment provided by Canadian Active Rehabilitation. Canadian Active Rehabilitation provided Mr. M with 110 sessions of treatment at a cost of $15,685.45. Wawanesa paid $7,756.40 leaving an outstanding claim for $7,979.05.
Injuries
When Mr. M attended in the emergency department after his accident, his main complaint was chest pain due to the seat belt. An x-ray of the chest was normal. Later, his family doctor, Dr. Mati, reported that Mr. M had chronic pain in his left shoulder, left chest, low back and neck.
Mr. M underwent an x-ray of the shoulder, CT scans of the neck and lumbar spine and an MRI. Dr. Mati testified that a mild disc bulge which was detected at L4-5 was a common finding and not significant. The scans indicated that nothing was structurally wrong with Mr. M’s spine and shoulder and that any injury was a soft tissue injury.
Some family doctors treat only pain and headaches. They undergo no formal certification process but study on their own. Several of these doctors examined and treated Mr. M. Mr. M’s lawyer referred Mr. M to one such clinic where Dr. Leon Rivlin treated Mr. M. Dr. Rivlin testified that Mr. M’s reflexes were absent on the right side when he hit him below the knee with a rubber hammer. He said that a person could not fake that and that Mr. M may have suffered damage to his nerves. Dr. Garry Moddel is a neurologist who examined Mr. M for Dr. Mati. He reported a normal neurological examination, found that Mr. M’s reflexes were symmetrical and wrote that Mr. M’s pain was muscular. I prefer the opinion of the specialist that Mr. M does not have nerve damage.
An assessor at the Lifestyle Metabolism Centre reported two years after the accident that Mr. M had chronic total body pain.
Dr. Michael Zitney is a family doctor who specializes in the treatment of pain. He saw Mr. M in January 2006 at the request of Dr. Mati. He reported that Mr. M did not exercise, meditate or stretch and felt that his back pain was in other people’s hands, and not within his own control.
Dr. Geoffrey Lloyd is an orthopaedic surgeon who saw Mr. M at the request of his lawyer. He reported that Mr. M probably did not have an impairment as a consequence of musculoskeletal injuries and he recommended that Mr. M seek further evaluation from a psychopathology specialist.
Mr. M saw several psychologists. Dr. Eyal Bodenstein reported to Dr. Mati that Mr. M reported pain in most of his body and that he was extremely pain focussed. He reported that Mr. M was worried about his “bulging disc.” In testing, he endorsed items that presented an unfavourable impression or represented extremely bizarre and unlikely symptoms.
Dr. Rajwani is a chiropractor who assessed Mr. M as part of a Designated Assessment Centre assessment to consider the treatment plans submitted by Canadian Active Rehabilitation. He testified that, based on questionnaires Mr. M completed, Mr. M perceived himself as crippled.
Dr. Rivlin treated Mr. M at a pain clinic for about seven months. Dr. Rivlin used a two-inch needle to inject marcaine, the same drug used by dentists, to freeze the nerve where it comes out of the spine. He testified that the treatment is not for everyone and that studies have shown that it provides relief from 24 hours to 3 or 4 weeks. Dr. Rivlin testified that a patient is generally truthful about their pain to undergo nerve blocks, because the procedure is painful. Mr. M testified it is like hitting the nerve with a hammer. He said it gave him only temporary relief and he stopped attending. Dr. Rivlin confirmed that the nerve blocks were of limited benefit to Mr. M.
Mr. M’s situation was complicated when he became addicted to the Morphine in Oxycotin, also known as Percocet. This, together with other medications, resulted in Mr. M sleeping too much. He said that sometimes he slept for two days straight and that he didn’t see his son grow up. He had other side effects, and when he found that he could not concentrate without Oxycotin, he gave it up cold. Although Mr. M’s family doctor had reported in 2000 that Mr. M had disturbed sleep, and that he slept during the day, Mrs. M testified that her husband slept much more after the accident.
Income Replacement Benefits:
Work History
If Mr. M was employed at the time of the accident, it is necessary for me to determine the essential tasks of his employment and then determine whether he was substantially disabled from performing those tasks. If he is substantially disabled, then I must determine his income and the amount of his income replacement benefit.
I first examine Mr. M’s work history in order to analyze his claim that he was employed full-time as a taxi dispatcher at the time of the accident.
Mr. M described his previous work as doing odd jobs, painting and selling cars. He opened a restaurant in either 1999 or 2001 and after three or four months declared bankruptcy. In August 2000, his family doctor at that time recorded “very stressed, not employed for 2 years. Used to work in taxi business.” Mr. M testified that in 2002 he worked part-time for his brother-in-law who was a partner in Eleven Eleven Taxi as a dispatcher and driver. On March 5, 2002, Dr. Richard Brodie, a pain relief specialist, reported to Dr. Mati that Mr. M was unable to work for the last two years because of leg pain and that “He is unemployed and looking for disability.” On April 15, 2002, an endocrinologist reported to Dr. Mati “He is not working at the current time and is trying to get disability.” In September 2002, she recorded “He is now out of work.” A psychologist at a DAC recorded that until he was offered a full-time position in May 2003, Mr. M worked “on and off” for a taxi company. She describes a “fairly unstable work history, particularly in the eight years prior to the subject accident.”
After the accident, Dr. Emil Orsini, who saw Mr. M for Wawanesa, wrote that Mr. M worked as a taxi dispatcher for ten weeks prior to the accident. In the year prior to that employment, he was unemployed.
Employment at the time of the accident
In his application for accident benefits, Mr. M stated that he was employed with Eleven Eleven Taxi since March 25, 2003. In the Confirmation of Income, and in subsequent statements to assessors and at this hearing, Mr. M stated that he started full-time with Eleven Eleven Taxi on May 12, 2003, when the full-time dispatcher quit. He said that his brother-in-law offered $8.50 per hour and that he negotiated $10 per hour and was paid $400 per week for the 12 weeks before the accident.
He testified that he worked the night shift, 5 days a week from 10 p.m. to 6 a.m., Sunday until Friday morning. He worked 40 to 45 hours. An occupational therapist reported that Mr. M said he worked Sunday to Thursday. Mr. M sat in a chair most of the time and could get up and move around a small office. He took orders over the phone, determined which was the closest taxi and called that driver on a two-way radio. Now he cannot sit for two hours.
Mrs. M thought her husband worked every day, then she said she could not remember if it was seven days a week. She thought her husband worked more than nine months. When asked whether he worked every day, she answered that he worked part-time and not every day sometimes and that she couldn’t recall. All she could remember was that he got $400, but that sometimes it was late.
Mr. M gave different reasons as to why his brother-in-law did not come to support his testimony and the Confirmation of Income he signed. He said that he was working. He said that he had a family dispute and his brother-in-law is not talking to him.
Mr. M testified that late last year, although he was not sure exactly, he sometimes drove a taxi. Two years ago, his brother-in-law bought him a small limousine. Although he doesn’t have a licence for using a limousine, he used it for fares given by his brother-in-law, once a week or every two weeks. Now his brother-in-law has stopped calling him. Mrs. M confirmed that the brother-in-law used to call Mr. M after the accident and that Mr. M covered some runs but did no dispatching. On March 23, 2007, a chiropractor reported to Mr. M’s lawyer that Mr. M had returned to work as a driver with pain and discomfort.
Mr. M swore an affidavit with his lawyer swearing that he was employed full-time from May 12, 2003. He swore another affidavit for Metro Housing that “I have had no employment or other income whatsoever in 2003.” The amount of rent in subsidized housing is based on income. Tenants are obliged to inform Metro Housing of any change in income. The property manager testified that she has never known Mr. M to have had employment.
Accounting evidence
Social assistance was Mr. M’s main source of income. In 2003 he did not take social assistance because he was sponsoring his wife’s father as an immigrant and he had to show sufficient assets. Most of the deposits to his bank account were unexplained. Some of the deposits were loans from relatives to build up the account to show to immigration officials. He told Metro Housing that his only source of income was the baby bonus and his rent for his three bedroom townhouse was reduced to $117 per month.
Mr. M was unable to explain why the deposits in his bank account in the months preceding the motor vehicle accident were about the same as in the months following the accident. Nor could he explain cash withdrawals of $2,500 and $7,800 four months after the accident.
Mr. M presented the fronts of 12 cheques from July 2, 2002 to March 18, 2003 drawn on the bank account of Eleven Eleven Taxi in various amounts from $400 to $800. I heard no explanation as to why the backs showing clearance at a bank were not produced. Mr. M explained that these cheques were for part-time work prior to obtaining full-time employment. When he obtained full-time employment his brother-in-law agreed to pay him in cash so as to deceive Metro Housing. He could not explain why it was necessary to deceive Metro Housing about full-time employment but not part-time employment.
Although Mr. Sherman did not appear at the hearing, all his reports were forwarded to Mr. M’s representative and none of his allegations were denied.
Mr. Sherman reported that Mr. M’s first personal income tax return for 2003 indicated that he had no income. The amended return showed gross business income of $4,930 without deductions for expenses. This amounts to $400 per week from May 12, 2003 to the date of the accident. Mr. Sherman spoke to the brother-in-law and his partner and confirmed their conversations in writing to the partners and Mr. M’s representative. He wrote that the brother-in-law told him that Mr. M filled in the information on the Employer’s Confirmation of Income; that the brother-in-law was unable to confirm the accuracy of the information; that Mr. M worked for them a long time ago but he did not know the dates; that he was not sure whether Mr. M worked for them at the time of the accident; and, that he was not sure what his earnings were.
Mr. Sherman analyzed the deposits to Mr. M’s account in the 12 weeks before the accident and the 10 weeks after the accident and did not see any difference.
Mr. M underwent about 110 treatments at Canadian Active Rehabilitation. He thought he went six times a week for eight months. Treatment was provided under five treatment plans dated August 13, 2003, August 17, 2003, September 23, 2003, November 10, 2003 and January 7, 2004. A sixth treatment plan was for a TENS machine dated October 22, 2003.
Mr. M testified that at the end of treatment in March 2004 he felt 60% better but regressed when treatment ended.
Dr. Bourasa thought the treatment his clinic provided helped Mr. M. Dr. Bourasa referred Mr. M to a psychologist, Dr. Toby Levinson, who also reported that Dr. Bourasa’s treatment was helpful. Otherwise, all the other health care professionals who asked Mr. M, reported that Mr. M did not find the treatment he received at Canadian Active Rehabilitation helpful.
One year after the accident, Dr. Eyal Bodenstein, a psychologist, reported to Dr. Mati that Mr. M was frustrated with the medical-rehabilitation process and that he had received no help from any of the doctors. Around the same time, Dr. Geoffrey Lloyd, an orthopaedic surgeon, reported to Mr. M’s lawyer that Mr. M had received extensive symptomatic treatment and encouragement to participate in an exercise program and had not improved. In 2006, Dr. Mati reported to Mr. M’s lawyer that Mr. M’s pain had responded poorly to all treatment modalities. In 2007, four years after the accident, Dr. Karen Spivak, a psychologist at a Designated Assessment Centre, was asked to review a treatment plan for psychological treatment. She reported that Mr. M told her that he had had no improvement in pain since the time of the accident, that physiotherapy and psychotherapy did not reduce his pain and that nerve injections provided some temporary relief. Dr. Rivlin reported and testified that Mr. M told him that physiotherapy, acupuncture and chiropractic treatment had not helped him. Dr. Rajwani noted that Mr. M said massage gave him temporary relief. In 2008, Dr. Mati reported to Mr. M’s lawyer:
He reported improved pain by 70% after, “cupping” he received in Jordan. Such pain had responded poorly to treatments in Canada. This makes it very likely that the psychological factor, and the patients’ own expectations of what could work, play a role in pain management.”
Dr. Mati testified, and his notes confirm, that he prescribed Viagra for Mr. M. for erectile dysfunction on July 16, 2003, three weeks before the motor vehicle accident. He testified that he queried whether Mr. M’s dysfunction was psychological because it is the most common reason for sexual dysfunction. He also reported that uncontrolled diabetes can cause sexual dysfunction. Dr. H. Platnick also reported that diabetes was a significant risk factor for erectile dysfunction.
Mr. M testified that he had no sexual dysfunction prior to the motor vehicle accident and that Dr. Mati was mistaken. Mrs. M similarly testified that Dr. Mati was wrong when he recorded that Mr. M suffered from erectile dysfunction prior to the motor vehicle accident.
The offices of Dr. Bourasa and Dr. Mati are in the same building. Dr. Bourasa testified that he met with Dr. Mati on a regular basis, every month or every two months, to consult on patients, although he had nothing in his file to confirm the results of those consultations. Dr. Mati could not remember receiving any reports from Dr. Bourasa concerning Mr. M.
Dr. Rajwani testified that he denied massage in the second treatment plan. He agreed that temporary relief was reasonable in some circumstances, such as where it allows the patient to work, but that Mr. M was becoming dependent on care and the treatment was perpetuating his passive nature. He testified that at November 2003, the goal of treatment should have been to make Mr. M independent.
CONCLUSIONS:
Income Replacement Benefits:
I heard inconsistent evidence on the day Mr. M started work, whether he was an employee or self-employed and the days he worked. Wawanesa’s accountant had similar concerns and his telephone conversations with Mr. M’s brother-in-law and his brother, the principals of Eleven Eleven Taxi, were to the effect that the principals would not confirm that Mr. M worked there full-time and what his salary was. The contents of the accountant’s letters were not contradicted and Mr. M’s brother-in-law and his brother did not appear as witnesses. Mr. M’s explanation of why they did not attend changed during the course of the hearing from they were busy working to they were not talking to Mr. M because of a family dispute.
The financial documents did not help Mr. M. His explanation that he received cheques for part‑time work and cash for full-time work did not make sense. The pattern of deposits and withdrawals before and after the alleged employment did not change to reflect income or loss of income.
Mrs. M testified that in their culture the husband’s role was to support the wife and that the roles had been reversed in their situation. Mr. M’s first full-time job was allegedly with Eleven Eleven Taxi, yet Mrs. M had little knowledge of the particulars of this employment. I found this unbelievable considering the emphasis she placed on Mr. M’s inability to support her.
When Mr. M was confronted with his admitted lies to Revenue Canada and Metro Housing and asked whether he was telling the truth at the hearing, he replied, “that it was a matter of survival.” On three occasions in his testimony he justified lying in order to get money to survive.
I find that Mr. M’s allegation that he worked full-time for Eleven Eleven Taxi before the motor vehicle accident is not true.
I find it likely that Mr. M worked part-time for his brother-in-law for odd jobs from time to time and that he worked as a driver and dispatcher for Eleven Eleven Taxi from time to time both before and after the accident. However, I cannot determine how much work and the nature of any work he did in the year before the accident. He has failed to establish the essential tasks of his employment and cannot prove that he is substantially disabled from returning to work.
Wawanesa paid $7,756.40 toward Canadian Active Rehabilitation’s account of $15,685.45 for 110 treatment sessions. The only people who thought that Mr. M benefited from that treatment was Dr. Bourasa, who provided the treatment, and a psychologist Dr. Bourasa referred Mr. M to. Otherwise, all the other assessors, most of whom were treating doctors or assessors engaged by Mr. M’s lawyer, reported that Mr. M did not benefit from the treatment at Canadian Active Rehabilitation. I accept the pre-accident documentary evidence that the treatment did not help Mr. M.
Further, the treatment Mr. M received from Canadian Active Rehabilitation did not address his problems.
Dr. Spivak, in her assessment at the DAC, reported:
It would appear that Mr. M has focused on the accident and his somatic issues as a means to avoid dealing with pre-accident underlying issues, in particular unresolved grief over the deaths of family members, dissatisfaction with work and business-related failures. Perception of disability appears to be reinforced by latrogenic factors (i.e., being told by the pain specialist that he has “bulges” in his back; medical management by increased pain medication and nerve block injections to manage his pain symptoms) and by psychological factors independent of the subject motor vehicle accident (unstable work history, work dissatisfaction, unresolved grief). As well, adverse effects of mediation use may also play a role in reinforcing illness behaviour. Emotional distress and anxiety may serve to exacerbate muscular tension, which in turn may intensify feelings of helplessness and a perceived lack of improvement.
Similarly, in his report and testimony Dr. Mati was unable to say whether Mr. M’s complaints were related to the accident or related to factors before or after the accident.
These assessments accord with my view of the evidence. Mr. M’s problems are psychological and no reliable evidence connects those problems to the motor vehicle accident.
The only reliable evidence is that the physical therapy Mr. M received at Canadian Active Rehabilitation did not help him, quite likely because his problems are psychological, not physical. The additional $7,979.05 in treatment provided by Canadian Active Rehabilitation and at issue in this arbitration was not reasonable or necessary.
Ms. Vanounou argued that Wawanesa was late in responding to the treatment plans submitted by Canadian Active Rehabilitation. The procedure for submitting and dealing with treatment plans is in section 38 of the Schedule. At the time the treatment plans were submitted, subsections 38(8) and (8.1) required the insurer to give the applicant a notice setting out what services it would not pay for within 14 days after it received the application. If the insurer failed to give notice, paragraph (8.2)2 provided that
the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting the day after the day the insurer was required to give the notice and ending on the day the insurer gives the notice.
The only late notice in this case which may give rise to a remedy is for the fifth and sixth treatment plans dated November 10, 2003 and January 7, 2004.
Mr. M submitted the first page of two documents to prove when Canadian Active Rehabilitation submitted the treatment plans. Exhibit 13 is the first page of a treatment plan. Only the bottom half of the printed date on the top is visible. The date appears to be “04-10-08 13:49.” Below this are the printed words “MESSAGE CONFIRMATION Nov-12-2003 02:46 PM WED.” Exhibit 14 is the first page of a Treatment Plan. Again, only the bottom half of the printed date on the top is visible and again it appears to be “04-10-08 13:49.” Below this are the printed words “MESSAGE CONFIRMATION JAN-28-2004 06:30 PM WED.” The fax number on each is the same as the fax number Wawanesa set out in its Explanation of Benefits Payable forms. The Message Confirmation section includes “Page : 005” and “Results : [O.K.].” The Treatment Plan form is five pages long.
Wawanesa did not give notice that it would not pay for the proposed treatment until May 20, 2004, about six months after the November 10, 2003 treatment plan was sent by fax, and about three months after the January 7, 2004 treatment plan was sent by fax, by which time Canadian Active Rehabilitation had rendered all the proposed treatment.
Sophie Eng is the adjuster who explained how Wawanesa dealt with the treatment plans. She testified that the fax number was the fax number for her office and that it looked like the faxes were addressed to her and that the treatment plans were not in her file. She received the treatment plans as a result of the mediation process at the Commission.
Wawanesa responded to invoices for treatment with an Explanation of Benefits form, OCF-9. Prior to November 2003, it referred to the treatment plans under which the services were rendered when it approved or denied invoices for treatment. Starting with the Explanation of Benefits dated November 14, 2003, it did not refer to a treatment plan when it denied payment. It responded “Approved budget for treatment has been exhausted. There will be no payment towards this account.” It provided the same Explanation for Benefits on November 26, 2003, February 26, 2004, March 24, 2004 and May 14, 2004. It is not until its Explanation of Benefits dated May 20, 2004 that Wawanesa referred to the Treatment Plans dated November 10, 2003 and January 7, 2004.
I find that Canadian Active Rehabilitation sent the five pages of each treatment plan to Wawanesa by fax on November 12, 2003 and January 28, 2004 and that Wawanesa was not aware of the Treatment Plans until it received them through the mediation process at this Commission, by which time, Canadian Active Rehabilitation had rendered the proposed treatment.
Subparagraph 38(8)1 ii requires the insurer to give a notice of “what goods and services contemplated by the treatment plan that the insurer will not pay for.” The Explanation of Benefits forms sent by Wawanesa, in which it indicated that the budget for treatment had been exhausted, do not constitute notices that it would not pay for the services contemplated by the treatment plans.
Under paragraph 38(8.2)2, Wawanesa was required to pay for all services provided under the treatment plans until it gave notice that it would not pay. Wawanesa did not give notice until after Canadian Active Rehabilitation had provided the services. Therefore, Wawanesa must pay for those services, $3,734.58 for services rendered under the November 10, 2003 treatment plan, and $3,294 for services rendered under the January 7, 2004 treatment plan.
Medicine:
Mr. M’s erectile dysfunction and the need for medicine to treat it, predated the accident and had nothing to do with the accident.
Section 24 examinations:
The examinations which Mr. M claims payment for pursuant to section 24 of the Schedule are a Functional Abilities Evaluation, dated March 23, 2007, an orthopaedic assessment dated March 23, 2007 and a psycho vocational assessment, dated January 7, 2008.
The Functional Abilities Evaluation was performed by Dr. John Supra, chiropractor, who recommended that Mr. M required a further assessment by a chiropractor to determine whether his limitations in range of motion are due to joint dysfunction or are muscular in nature. This suggestion has little value when the overwhelming evidence is that Mr. M’s problems are psychological and not joint dysfunction or muscular in nature.
Dr. Salim Esmail’s orthopaedic assessment concludes that Mr. M’s chances of returning to meaningful employment were not very high. Dr. Esmail’s opinion is at odds with the evidence that Mr. M had returned to some part-time taxi driving by the time of his assessment and that Mr. M’s brother-in-law had purchased a limousine for Mr. M sometime in 2006 for business purposes.
Similarly, Dr. James Alon Long, in his psycho vocational report, found it highly unlikely that Mr. M could function at any job despite evidence that Mr. M was doing some taxi driving at this time.
These assessments were performed more than three years after treatment ended. I have no evidence that Mr. M’s treating doctors read these reports. They are more in the nature of medical evidence to assist Mr. M in this arbitration than assessments to treat his problems.
The three assessment reports are also not reasonable because they shed little light on Mr. M’s situation.
EXPENSES:
If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, they may make written submissions to me on the issue. The requestor has 30 days to make written submissions and the respondent has 15 days to respond in writing. I also defer the issue of amount of expenses, pending my determination on entitlement.
July 28, 2008
William J. Renahan
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 128
FSCO A04-001076
BETWEEN:
MR. M
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Wawanesa Mutual Insurance Company shall pay Mr. M $7,028.58 together with interest calculated according to section 46 of the Schedule.
The issues of entitlement to and amount of expenses of the arbitration proceeding are deferred pending written submissions.
July 28, 2008
William J. Renahan
Arbitrator
Date