Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 6

FSCO A07-001972

BETWEEN:

PARITOSH BHADA

Applicant

and

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

Insurer

REASONS FOR DECISION

Before: David Leitch

Heard: December 8, 9, 10 and 11, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Riaz Ahmed for Mr. Bhada Alexander Lempp and Edyta Wiezel for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Paritosh Bhada, was involved in a single-vehicle accident on April 3, 2006. The Insurer of that vehicle, Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), was not made aware of the accident until late August 2006. By letter dated August 30, 2006, Security National provided Mr. Bhada with an Accident Benefits Application Package but did not receive back his signed Application for Accident Benefits¹ until December 18, 2006. Security National rejected Mr. Bhada’s claims for accident benefits on both procedural and substantive grounds. The parties were unable to resolve their disputes through mediation, and Mr. Bhada 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. Was Security National entitled to reject Mr. Bhada’s claims on the ground that his Application for Accident Benefits was submitted after the time limit imposed by section 32(3) of the Schedule?

2. Is Mr. Bhada entitled to caregiver benefits under section 13 of the Schedule?

3. Is Mr. Bhada entitled housekeeping benefits under section 22 of the Schedule?

4. Is Mr. Bhada entitled to medical benefits under section 14 of the Schedule for the treatment recommended in two treatment plans dated August 22 and November 15, 2006?

5. Is Mr. Bhada entitled, under section 24 of the Schedule, to the cost of the examination recommended in an OCF-22 form dated August 29, 2006?

6. Is Security National required to pay Mr. Bhada a special award claimed under section 282(10) of the Insurance Act?

Result:

1. Security National was not entitled to reject Mr. Bhada’s claims on the ground that his Application for Accident Benefits was submitted after the time limit imposed by section 32(3) of the Schedule.

2. Mr. Bhada is not entitled to caregiver benefits.

3. Mr. Bhada is not entitled housekeeping benefits.

4. Mr. Bhada is not entitled to medical benefits for the treatment recommended in two treatment plans dated August 22 and November 15, 2006.

5. Mr. Bhada is entitled to $1,488.13 in respect of the cost of the examination recommended in an OCF-22 form dated August 29, 2006, plus interest from October 1, 2006.

6. Security National is not required to pay Mr. Bhada a special award.

Background

At the hearing, Mr. Bhada gave the following description of his accident and injuries. He was driving his own vehicle and came to a stop for a traffic light. As he pulled away from the stop to turn left, one of the front tires of his vehicle burst causing the left side of his vehicle to go up onto a curb and hit a pole.² There was damage to the tire, rim, axle and driver’s side of his vehicle.³ He acknowledged that he sustained no visible injuries and reported no injuries to the investigating police officer. However, he maintained that he started to experience pain in his knee, back and shoulders about half an hour after the accident and later went on to develop pain in his “whole body”. Still, he reported for and worked at his factory job as usual on the day of the accident and continued working thereafter. In addition, he acknowledged that he did not consult a doctor, go to a hospital or seek any medical attention for his injuries at the time of the accident. He stated that when he suffered from pain, his wife would sometimes massage his back with an ointment, usually on the weekends.

It was not until more than four months after the accident, in late August 2006, that Mr. Bhada sought medical attention for his injuries. He went to the Prime Health Recovery Centre (“Prime Health”) where he was examined by Dr. Sam Calicchia, a chiropractor, who submitted a Disability Certificate⁴ and Treatment Plan⁵ to Security National, both dated August 22, 2006. Dr. Calicchia submitted a second Treatment Plan dated November 15, 2006.⁶

Part 3 of the Disability Certificate required Mr. Bhada to give “a brief description of the accident and what happened to you” and to “describe any injuries you sustained as a direct result of the accident”. The completed form gave no description of the accident but provided the following list of Mr. Bhada’s “injuries”: “headaches, less memory, he has vision problem, feeling dizziness, main pain in the low back, pain in neck, pain in upper mid back, pain in knee, pain in ankle, problem in sleeping, frustration, can’t concentration [sic], anxiety, problem in decision making, trouble to sit in a car, nightmares”.

In Part 5 of the Certificate, Dr. Calicchia provided the following list of “injuries and sequelae that are the direct result of the automobile accident”: “cervical strain/sprain, lower back strain/sprain, tension type headache, knee strain/sprain - bilateral, heel pain - bilateral”. This list was very similar to the lists Dr. Calicchia provided in his two Treatment Plans though the first Treatment Plan also mentioned “dizziness” and the second did not mention either “dizziness” or foot-related problems.

Part 7 of the Certificate gave a brief description of the “disability test” for certain categories of benefits, including income replacement benefits, caregiver benefits and housekeeping benefits, requested information about the “task/activity limitations” in relation to each benefit and then left a column for the assessor to indicate the “anticipated duration” of the limitation.

Dr. Calicchia checked off the “N/A” box for income replacement benefits — Mr. Bhada made no claim for this benefit. Moreover, I note that in his first Treatment Plan, Dr. Calicchia stated: “Applicant reports that he has returned to work despite symptom aggravation”⁷ and his second Treatment Plan stated: “Applicant reports that he has returned to his regular employment as a factory worker, with difficulty.”⁸

Under caregiver benefits, Dr. Calicchia checked the “yes” box, indicating that he met the disability test in respect of that benefit and noted: “Applicant reports being primary caregiver to his 11 year old daughter”. He then provided the following information about Mr. Bhada’s “task/activity limitations” in relation to caregiving: “Applicant states that daily caregiver activities involving standing, sitting, lifting, bending and carrying are provocative of the described injuries.” He indicated an “anticipated duration” of “9-12 weeks”.

Under housekeeping benefits, Dr. Calicchia again checked the “yes” box, indicating that he met the disability test in respect of that benefit. He provided the following information about Mr. Bhada’s “task/activity limitations” in relation to housekeeping: “Applicant states difficulty with household chores involving lifting, carrying, and bending, such as laundry, cleaning, vacuuming, and general household work, all of which are provocative.” He again indicated an “anticipated duration” of “9-12 weeks”.

Despite these entries in the Disability Certificate, Security National never paid Mr. Bhada caregiver or housekeeping benefits and maintained these denials at the hearing on both procedural and substantive grounds.

Part 8 of the Disability Certificate asked: “[A]re further examinations, investigations, or consultations contemplated or required?” Dr. Calicchia responded as follows: “The patient is currently impaired with respect to ADLs [activities of daily living]. A home-site assessment is recommended to identify the requisite assistive devices and education relating to improving biomechanical efficiency of everyday activities. The patient should be evaluated again in 6-8 weeks to determine functional capacity. Furthermore, the patient is experiencing difficulties relating to driving anxiety and sleep disturbance (nightmares). A psychological consult is recommended.”

Again, despite these entries in the Disability Certificate, neither an in-home assessment nor a psychological assessment was ever carried out.

Security National did attempt to conduct an in-home assessment. Pursuant to section 42(10) of the Schedule, it arranged for Mr. Bhada’s need for housekeeping benefits to be assessed on November 17, 2006. However, Mr. Bhada was apparently not at home when the assessor arrived.⁹

As for a psychological assessment, Mr. Bhada did submit an OCF-22 form in accordance with section 24(1.1) of the Schedule requesting the Insurer’s prior approval of such an assessment. This application was completed by Dr. Mel Perlmutter, a clinical psychologist, on August 29, 2006.¹⁰ In support of this application, Dr. Perlmutter relied upon the driving anxiety and nightmares mentioned in Dr. Calachhia’s Disability Certificate. In accordance with section 42(3) paragraph 4 of the Schedule, Security National referred this application to Dr. Deborah Cowman, also a clinical psychologist, who conducted a “paper review” and determined that the assessment was not “reasonably required”.¹¹

Finally, Security National referred Dr. Calicchia’s two Treatment Plans to Dr. David E. Bereznick, another chiropractor. After reviewing Dr. Calicchia’s reports and examining Mr. Bhada in January 2007, Dr. Bereznick expressed the opinion that neither of the Treatment Plans was reasonable and necessary.

Issue 1: the time limit imposed by section 32(3) of the Schedule

Part X of the Schedule sets out the procedures for claiming benefits. It requires an insured person to indicate his/her intention to apply for a benefit within a certain time limit; it requires the insurer to promptly provide the insured person with application forms and information to assist him/her in applying for benefits; and it requires the insured person to submit a signed application for benefits within a further specified time limit. However, Part X of the Schedule begins with section 31(1) of the Schedule which states that an insured “person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” By implication, an insured person who fails to comply with such a time limit risks becoming disentitled to benefits unless he/she provides a reasonable explanation.

In the present case, Security National was not made aware of Mr. Bhada’s intention to apply for benefits until well after the time limit allowed for that part of the claims procedure. Nevertheless, Security National did not rely upon that time limit, presumably because it was satisfied that Mr. Bhada had a reasonable explanation for the initial delay. Security National argued instead that its letter of August 30, 2006¹² provided the required application forms and information but that Mr. Bhada failed to return a signed Application for Accident Benefits until December 18, 2006,¹³ well after the time limit allowed for that part of the claims procedure.¹⁴

This argument was based on subsection 32(2) and (3) of Part X which read as follows:

32(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation;

(c) information to assist the person in applying for benefits; and

(d) information on any possible elections relating to income replacement, non-earner and caregiver benefits.

(3) The person shall submit a signed application for the benefit to the insurer within 30 days after receiving the application forms.

I had occasion to interpret these provisions in Horvath and Allstate Insurance Company of Canada.¹⁵ I did so in light of the Supreme Court of Canada’s decision in the case of Smith v. Co-operators General Insurance Co.¹⁶ I wrote:

The Smith decision clearly establishes that consumer protection is a main objective of automobile insurance law, that this objective is of particular importance in cases involving an insurer’s obligation to inform the insured person and that the realization of this objective requires the insurer to provide the insured person with complete and accessible information. Nevertheless, these principles were confirmed by the Court in the context of the insurer’s obligation under section 71 to inform the insured person about the dispute resolution process. As I see it, my task in the present case is to apply these principles in the context of the insurer’s obligation under section 32(2)(c) to provide “information to assist the person in applying for benefits.”

As I understand the Smith decision, the goal of consumer protection is promoted by requiring insurers to provide “basic information” outlining the “most important points of the process” using “straightforward and clear language, directed towards an unsophisticated person.” There is no doubt that the time limit imposed by section 32(3) is one of the most important points or parts of the process for claiming benefits. In my view, basic information about this time limit includes information about the potential consequences of failing to either comply with it or to provide a reasonable explanation for non-compliance. Without this information, insured persons may think that the only consequence of their own delay will be delay in receiving benefits. As I read the principles enunciated in the Smith case, section 32(2)(c) should be interpreted in a way which protects consumers by requiring insurers to inform insured persons of the far more serious potential consequences of their failure to comply with section 32(3).

Applying the same reasoning to the present case, two questions arise: first, what are the potential consequences of Mr. Bhada’s failure to comply with the time limit created by section 32(3)? Second, did Security National’s letter of August 30, 2006 inform Mr. Bhada of these potential consequences?

One of the potential consequences was amply demonstrated by Security National’s position at the hearing. It argued that Mr. Bhada’s claims should be rejected on the procedural ground that they were out of time. In Horvath, I recognized that disentitlement was indeed a potential consequence of failing to comply with the time limit imposed by section 32(3). I acknowledge that Security National took steps to adjust Mr. Bhada’s claims in the ordinary way and ultimately argued that his claims should, in addition, be rejected on substantive grounds. Still, Security National never abandoned its position that Mr. Bhada was not entitled to benefits because he did not comply with the time limit imposed by section 32(3).¹⁷

With regard to the second question, Security National submitted that its letter of August 30, 2006 informed Mr. Bhada of this potential consequence. Two passages in this letter specifically mentioned a 30 day time limit but only one mentioned the consequence of non-compliance. It was set out in bold and read as follows:

The enclosed Application for Expenses (OCF-6) is to be completed and returned if you are claiming expenses or receiving services related to any of the benefits described above. Expenses will be denied if the Application for Expenses is not submitted within 30 days of your receipt of this form. Please attach all bills and receipts when claiming the expense.¹⁸

As Justice Gonthier observed in Smith, the goal of consumer protection requires the use of “straightforward and clear language, directed to an unsophisticated person.” In my view, the use of the word “denied” in the second last sentence of above-noted passage failed to clearly communicate to Mr. Bhada the potential consequence of permanent disentitlement. Moreover, in footnote 22 of the Horvath decision, I noted that disentitlement is not the only potential consequence of non-compliance with section 32(3). I also offered certain suggestions as to how this time limit might be explained to insured persons in the Accident Benefits Application Package. I wrote:

… the [Accident Benefits Application] Package would be an obvious vehicle through which insurers could provide written information about the potential consequences of non-compliance with section 32(3). With that in mind, I offer the following suggestions about what could be added to the Package. I do not think the added information needs to quote or specifically refer to any section number of the Schedule. In fact, given that section 31 contains a double negative and only implies that the failure to comply with a time limit may lead to disentitlement, it would probably be better for the Package not to quote that section. Moreover, disentitlement is not the only potential consequence of non-compliance with section 32(3). An insurer which successfully relies upon section 32(3) may also seek repayment of benefits paid to, or on behalf of, the insured person. Taking these points into consideration, I would suggest that the following text, in bold or capital letters, be added to the cover page of the Package:

Your failure to return the application forms within 30 days of receiving them from the insurer may result in the rejection of all your claims to statutory accident benefits unless you provide a reasonable explanation for your delay. A determination as to whether you returned the application forms within 30 days or as to whether your explanation for not doing so was reasonable can be the subject of mediation and arbitration. In the event it is determined that you failed to return the application forms within 30 days without reasonable explanation, you will not be entitled to any statutory accident benefits as a result of your accident and may be required to repay benefits already made by the insurer to you or to your service providers.

Of course, this was only a suggested addition to the Accident Benefits Application Package; I obviously have no authority to alter the contents of that Package, much less to amend the Schedule. Still, section 31(1) of the Schedule does use the word “disentitle” and section 47 of the Schedule does require the insured person to repay to the insurer any benefits paid “as a result of an error on the part of …the insured person.” I remain of the view that an insurer who seeks to rely upon the time limit imposed by section 32(3) must clearly explain to the insured person both of these potential consequences of his/her failure to comply with that time limit as well as his/her right to provide a reasonable explanation for any such failure. In this case, I find that Security National did not provide Mr. Bhada with the required explanations.

For these reasons, I find that Security National was not entitled to reject Mr. Bhada’s claims by reason of his alleged failure to comply with the time limit created by section 32(3) of the Schedule.

Issue 2: caregiver benefits

Mr. Bhada is married to Ms. Pushplata Singh Bhada (Ms. Bhada). They have one daughter, Katyayani, born on August 7, 1995, who was ten years old at the time of the accident. Mr. Bhada submitted that he was Katyayani’s primary caregiver prior to the accident and that, as a result of the accident, he was unable to resume this role again until December 15, 2006. He claimed caregiver benefits to that date under section 13(1) of the Schedule which reads as follows:

13(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

1. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

The first question is whether Mr. Bhada was Katyayani’s primary caregiver at the time of the accident. If he was not, then he cannot be entitled to caregiver benefits, despite the caregiving invoices he had his wife sign.¹⁹

Mr. and Ms. Bhada both testified that Ms. Bhada started a dental hygienist course in January 2006 and that from that point to the date of the accident in early April 2006, Ms. Bhada was very focussed on her studies. I accept this evidence but I do not accept the implication that Ms. Bhada’s course prevented her from acting as Katyayani’s primary caregiver between January and April 2006. In my view, this implication would only follow if it was supported by additional evidence that Mr. Bhada was at home and available to take on the role of primary caregiver during those hours after Katyayani got home from school until she went to bed.

Mr. Bhada initially suggested that he worked the night shift until just before the accident and that he was, therefore, at home in the afternoon when Katyayani got home from school. However, Mr. Bhada later admitted that he could not recall when he switched from the night shift to the afternoon shift. In fact, Security National produced records from Mr. Bhada’s employer which confirmed that he switched to the afternoon shift in November 2005. It follows that during the period from November 2005 to April 2006, Mr. Bhada was not at home and available to care for or supervise Katyayani from the time she got home from school until she went to bed. Moreover, Ms. Bhada did not dispute that Mr. Bhada could have been on afternoon shift after November 2005. She testified that she finished her course in time to meet Katyayani after school, accompany her home and remain with her at home until she went to bed. This was by far the most significant period of time during which Katyayani would have required daily care and supervision. I further note that Mr. Bhada continued to work the afternoon shift after the accident and, therefore, continued to be unable to care for and supervise Katyayani from the time she got home from school until she went to bed. In other words, it was not because of Mr. Bhada’s accident injuries that he was unable to be Katyayani’s primary caregiver after the accident. It was, as it had been before the accident, because of his employment schedule.

I note further that during the summer of 2006, when Katyayani was not in school and Ms. Bhada was required by her course to attend a dental office for workplace training, it was Ms. Bhada, not Mr. Bhada, who adjusted her hours so that she could be at home with Katyayani. This suggests that however important Ms. Bhada’s course may have been to her and her family, it did not prevent her from remaining the parent with the primary responsibility to provide for Katyayani’s care and supervision.

I conclude that Mr. Bhada was not Katyayani’s primary caregiver at the time of the accident and that his claim for caregiver benefits must be rejected.

Issue 3: housekeeping benefits

Mr. Bhada submitted that he was also the family’s principal housekeeper prior to the accident and that, as a result of the accident, he was unable to resume this role again until December 15, 2006. He claimed housekeeping benefits to that date under section 22(1) of the Schedule which reads as follows:

22(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

This section also requires Mr. Bhada to establish a pre-accident pattern of conduct, in particular, that he normally performed housekeeping services prior to the accident. But unlike caregiving services, Mr. Bhada’s opportunity to perform housekeeping services would not have been directly linked to the schedules of the other members of his family; he could have done housekeeping whether they were at home or not. I, therefore, accept Mr. and Ms. Bhada’s evidence that once Ms. Bhada’s course started in January 2006, Mr. Bhada became the family’s principal housekeeper and remained so up to the date of the accident in April 2006.

However, that is not enough to establish Mr. Bhada’s entitlement to housekeeping expenses.

He also has to establish that his accident caused impairments which left him with a substantial inability to continue performing the housekeeping services he performed before the accident. I appreciate that Dr. Calicchia’s Disability Certificate indicated that Mr. Bhada satisfied this disability test and that housekeeping tasks would be “provocative” of his injuries. I further acknowledge the “housekeeping invoices” signed by Ms. Bhada and submitted to Security National.²⁰ But Dr. Calicchia’s Treatment Plans also confirmed that Mr. Bhada was able to carry on as a “factory worker” after the accident, albeit with “symptoms aggravation” and “difficulty”. The records obtained by Security National from Mr. Bhada’s employer indicate that Mr. Bhada was a “production assembler” whose duties were to operate and monitor the product of “moulding machines”. While Mr. Bhada described this as light employment, he maintained that he was too tired after working to perform his housekeeping tasks. I note, however, that for the first six months after the accident, Mr. Bhada only had to perform housekeeping tasks in the family’s small, one-bedroom, apartment. In my view, if Mr. Bhada’s post-accident fatigue, symptoms and other difficulties did not render him substantially unable to operate a moulding machine through regular shifts in a competitive work environment, it is unlikely that they rendered him substantially unable to perform ordinary housekeeping tasks in his own home at his own pace.

I am, therefore, unable to accept Mr. Bhada’s claim for housekeeping benefits.

Issue 4: medical treatment

Dr. Calicchia’s first Treatment Plan, dated August 22, 2006, recommended therapy sessions and treatments of the following kinds: 5 chiropractic, 8 massage, 6 acupuncture, 6 passive PT modality and 12 functional exercise programs. The estimated duration of this Treatment Plan was 6 weeks but, according to the records of Prime Health, Mr. Bhada attended for treatments of various kinds a total of 13 times up to and including November 14, 2006. The second Treatment Plan, dated November 15, 2006, recommended ongoing therapy sessions and treatments as follows: 6 chiropractic, 6 massage and 8 functional exercise programs. This Treatment Plan was also to have lasted for an estimated 6 weeks but Mr. Bhada stopped after attending for treatments on only three occasions, the last time on December 18, 2008.

Dr. Beresnick’s report dated January 22, 2007 explained why, in his view, this treatment was not reasonable and necessary. He wrote:

The natural history of non-neurological (i.e., non-radiculopathic/non-myelopathic) soft tissue type injuries suggests that Mr. Bhada would have acquired no therapeutic gain in relation to the subject motor vehicle accident by receiving chiropractic care at approximately four and one-half months post-MVA when the earlier of the two treatment plans in dispute was apparently implemented. Mr. Bhada and the file documentation both make no mention of extenuating clinical findings at or around the time of this motor vehicle accident that would have suggested prolongation to healing or need for further care (i.e., fractures, joint dislocations, joint separations, surgeries, etc.). Mr. Bhada reported that he did not require the services of the paramedics or the hospital and has not seen a medical practitioner for this motor vehicle accident. According to the file documentation and Mr. Bhada, he did not seek out treatment for this motor vehicle accident until August 22, 2006, approximately four and one-half months later. Mr. Bhada reported that he had no pain at the time of this motor vehicle accident. The file documentation in its entirety, although there is much jargon and vague generic descriptors, never describes conclusive signs of musculoskeletal injury (i.e., there is no indication of the specific tissue that had failed). Assuming that Mr. Bhada did sustain an injury, it would appear that he sustained uncomplicated self-resolving soft tissue type injuries that would have well-recovered after four and one half-months… .

The treatment plans in dispute are describing in part passive therapies, namely “chiropractic treatment”, massage therapy, acupuncture and “passive PT modality”. The Ontario Chiropractic Association’s interpretation of the Clinical Guidelines for Chiropractic Practice in Canada recommends that the treatment protocol should “emphasize active care, rehabilitation, specific exercises” at a maximum of six weeks. [In other words, Dr. Bereznick explained at the hearing, passive treatments should not extend beyond six weeks] I agree with these guidelines since they are consistent with the scientific literature. It is my view that any therapy entertained at approximately four and one-half months post-MVA, when the earlier of the two treatment plans in dispute was apparently implemented should have involved no passive therapies since there was no indication that this would have provided therapeutic gain… .²¹

At the hearing, Dr. Calicchia acknowledged that Mr. Bhada’s injuries were uncomplicated but maintained that the treatment he recommended was beneficial to Mr. Bhada. He did not agree that Mr. Bhada’s injuries were “self-resolving” without treatment. He stated that the delay in providing treatment can cause symptoms to become chronic and more difficult to resolve. He noted that the amount of passive treatment he recommended for Mr. Bhada was, in fact, reduced in the second Treatment Plan.

On his cross-examination at the hearing, Dr. Bereznick acknowledged that he did not examine Mr. Bhada until January 7, 2007, approximately nine months after the accident and four months after Dr. Calicchia’s initial examination.

In my view, Dr. Bereznick’s opinion should be assigned greater weight than Dr. Calicchia’s for the following reasons.

First, while Dr. Bereznick’s opinion was based, in part, on his January 2007 examination of Mr. Bhada, Dr. Calicchia’s initial examination of Mr. Bhada also took place approximately four and a half months after the accident. In other words, neither Dr. Calicchia’s opinion nor Dr. Bereznick’s opinion was based on the early clinical assessment of Mr. Bhada’s physical injuries and timely follow-up. The strength of both their opinions suffers from this fact.

Second, Dr. Bereznick’s opinion was not based entirely on his examination in January 2007. According to his report and his evidence at the hearing, it was also based on “scientific literature” and a “treatment protocol”, neither of which was challenged by Dr. Calicchia. In my view, these sources of evidence can be relied upon when, as here, there is a complete absence of early clinical assessment and follow-up.

There is a third aspect of Mr. Bhada’s claim which troubles me. I understand that Mr. Bhada may not have been aware of his right to claim medical treatment from Security National until late August 2006. However, I find it difficult to understand why, if he believed he was injured in the accident, he did not seek medical treatment through his employer’s benefit plan or through public medical insurance. Both were available to him but there is no evidence that either was accessed.²² True, the Bhadas are fairly recent immigrants to Canada and Mr. Bhada spoke through an interpreter at the hearing. Still, Ms. Bhada testified in fluent English and must have gained some insight into the Canadian medical system through her course in dental hygiene. I am left with the impression that Mr. Bhada himself did not see any need to seek medical treatment following his accident. This impression should not be determinative of his claim — he is not a health care professional capable of diagnosing himself and prescribing appropriate treatment — but, in my view, it tends to undermine his claim for treatment many months later.

For these reasons, I reject Mr. Bhada’s claim the cost of the treatment recommended by Dr. Calicchia in his two treatment plans dated August 22 and November 15, 2006.

Issue 5: psychological examination

Except in certain situations that did not exist in the present case, section 24(1) paragraph 11 of the Schedule required Mr. Bhada to seek Security’s National’s prior approval for the expense of a psychological examination. Since Mr. Bhada did seek Security National’s prior approval, through the OCF-22 form submitted by Dr. Perlmutter, it was required to pay for the examination as long as it was “reasonably required in connection with a benefit” claimed. The relevant parts of section 24(1) read as follows:

24(1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:

11. Reasonable fees … that are charged by a member of a health profession … for conducting an assessment or examination and preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed … and,

ii. the insured person applied for approval of the assessment or examination … by way of a separate application submitted under section 38.2 …

Once Dr. Perlmutter’s OCF-22 form was submitted in accordance the procedure set out in section 38.2 of the Schedule, Security National’s right to refuse to pay for the examination was tightly circumscribed by the short time limits and strict procedural obligations imposed by that section. The relevant parts of section 38.2 read as follows:

38.2(1) This section applies to an application prepared by a member of a health profession or social worker for approval of an assessment or examination of an insured person if the application is not submitted as part of a treatment plan under section 38.

(6) If the insurer has not refused the application [due to a conflict of interest of the proposed assessor or examiner], the insurer shall give the insured person and the person who prepared the application a notice,

(c) within three business days after receiving the application, if the application is received on or after March 1, 2006.

(7) The notice under subsection (6) must,

(a) state which assessments or examinations in the application the insurer agrees to pay for;

(b) advise the insured person that the insurer requires the insured person to be examined under section 42, if the insurer has not agreed to pay for all assessments or examinations to which the application relates [this examination is normally a “paper review” in accordance with section 42(3) paragraph 4]; …

(9) If the insurer does not refuse the application [due to a conflict of interest of the proposed assessor or examiner] but fails to give the notice as required under subsection (6), the insurer shall pay for all assessments and examinations to which the application relates.

(13) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the application to the insured person and the person who prepared the application.

(13.1) The determination of the insurer shall specify the assessments or examinations the insurer agrees to pay for, the assessments or examinations the insurer refuses to pay for and the reasons for the insurer’s decision.

(13.4) If the insurer fails to provide a copy of the report of the examination under section 42 or its determination in respect of the application by the day determined in the following manner, the insurer shall pay for all assessments and examinations to which the application relates:

1. If the attendance of the insured person was not required for the examination under section 42, the day is the 10th business day after the day the material required under subsection 42 (10) was provided.…

As previously noted, Security National rejected Mr. Bhada’s application on the strength of Dr. Cowman’s report dated September 21, 2006 which stated that a psychological examination was not “reasonably required”. Dr. Cowman’s report was based on her “paper review” of the Disability Certificate, dated August 22, 2006,²³ and Dr. Perlmutter’s OCF-22 form, dated August 29, 2006.²⁴ She wrote:

Dr. Perlmutter has not adequately supported her [sic, Dr. Perlmutter is a man] application to undertake a psychological assessment of Mr. Bhada. If she would like to communicate directly with the insured, and determine in that in her opinion he is reporting accident related symptoms of emotional distress significant enough to require further evaluation, she should submit that information to my further review. Currently, I do not find the proposed assessment to be reasonably required. The proposed costs are consistent with the standards of the profession.²⁵

At the hearing, Dr. Cowman expanded upon her reasons for thinking that Dr. Perlmutter’s request was not “adequately supported”. She acknowledged Mr. Bhada’s complaints of driving anxiety and nightmares, as recorded in the Disability Certificate, but maintained that he had only reported these problems to Dr. Calicchia, a chiropractor, not to Dr. Perlmutter or to some other psychologist or health professional qualified to address issues of psychological impairment.

In Dr. Cowman’s view, Dr. Perlmutter should have communicated directly with Mr. Bhada in order to determine, at least in a preliminary way, whether Mr. Bhada had psychological problems, whether those problems were caused by the accident and whether he would consent to a psychological assessment. In support of this view, Dr. Cowman referred to the “Guidelines for Assessment and Treatment in Auto Insurance Claims”, published by the Ontario Psychological Association (the OPA) on January 11, 2005.²⁶ A copy of these Guidelines was produced by the Insurer at the hearing. “Appendix A” to this decision sets out the section entitled “Psychological Pre-Assessment Guidelines”. Had Dr. Perlmutter followed these Guidelines, he may have insisted upon some direct personal contact with Mr. Bhada and may have also obtained, and provided in the OCF-22, more information than he did; indeed, more information than even Dr. Cowman called for in her testimony.

Still, these Guidelines are only recommended or best practices. As Dr. Cowman acknowledged, the OPA is not the regulatory body for the profession of psychology in the Province of Ontario. That mandate belongs to the College of Psychologists of Ontario and, as the OPA’s Guidelines note on p. 4, the College has published “specific standards for ethical practice with regard to assessments and treatments under auto insurance”. Presumably, it was the College’s standards which actually governed Dr. Perlmutter’s conduct though these standards were not produced at the hearing.

In any event, Guidelines and standards of this kind did not govern the issue before Dr. Cowman. Her task under the Schedule was not to determine whether Dr. Perlmutter’s conduct fell below professional standards, however defined. It was to determine whether the psychological examination Dr. Perlmutter requested was “reasonably required” under section 24. I do not doubt that in determining the reasonableness of Dr. Perlmutter’s request, Dr. Cowman was entitled to consider the standards of their common profession. But ultimately, the question under the Schedule was not whether Dr. Perlmutter should have obtained more information from Mr. Bhada; it was, and is, whether Dr. Perlmutter’s request was reasonable in light of the information he already had from Mr. Bhada.

I cannot agree with Dr. Cowman that Mr. Bhada only reported his psychological problems to Dr. Calicchia. As previously noted, Part 3 of the Disability Certificate required Mr. Bhada to “describe any injuries you sustained as a direct result of the accident” (my emphasis). His list included problems which either were, or could have been, psychological in nature, including: “problem in sleeping, frustration, can’t concentration [sic], anxiety, problem in decision making, trouble to sit in a car, nightmares.” It is true that the other Parts of the Disability Certificate were completed by Dr. Calicchia but this did not mean that Mr. Bhada only reported his problems to Dr. Calicchia. In my view, Mr. Bhada reported his problems to anyone who read the Disability Certificate. Both Dr. Perlmutter and Dr. Cowman had this document in their possession when they expressed their opinions.

I also disagree with Dr. Cowman’s suggestion that a psychologist must have some personal contact with the applicant before requesting the psychological examination. Again, I do not doubt that there may be situations where the absence of direct personal contact between the psychologist and the applicant renders the request unreasonable. But there may also be situations where the psychologist has sufficient information from other sources to make the request reasonable. Certainly the psychological examination itself would require direct personal contact but, as noted in the OPA Guidelines: “it is not intended that the psychologist complete an assessment in order to propose an assessment.” (emphasis in the original).

In this case, the Disability Certificate provided Dr. Perlmutter with both a list of Mr. Bhada’s complaints and his affirmation that these problems were direct results of the accident. The evidence did not suggest any reason to think that, had he been contacted directly, Mr. Bhada would have told Dr. Perlmutter anything significantly different than what he reported in writing in the Disability Certificate. Nor did it suggest any reason to think that Mr. Bhada would not have consented to a psychological assessment had one been approved. I, therefore, conclude that the Disability Certificate provided Dr. Perlmutter with sufficient information to form the opinion that a psychological examination was “reasonably required”.²⁷

Since Dr. Cowman did not question the proposed fee for this examination, I find that Mr. Bhada is entitled to $1,488.13 in respect of the cost of the examination recommended in Dr. Perlmutter’s OCF-22 form dated August 29, 2006, plus interest thereon from October 1, 2006.

Issue 6: Special Award

Section 282(10) of the Insurance Act reads as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent…

In this case, the only benefit which can attract a special award is the payment ordered in relation to the request for a psychological examination. I have rejected Dr. Cowman’s approach to this request but I have also acknowledged that there was some basis for this approach in the OPA’s Guidelines. In these circumstances, I am not prepared to find that Security National unreasonably withheld or delayed payments to Mr. Bhada.

Interest and Expenses:

The parties will advise within 30 days of this decision if they cannot agree on interest and expenses.

January 23, 2009

David Leitch Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 6

FSCO A07-001972

BETWEEN:

PARITOSH BHADA

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. Mr. Bhada is not entitled to caregiver benefits.

2. Mr. Bhada is not entitled housekeeping benefits.

3. Mr. Bhada is not entitled to medical benefits for the treatment recommended in two treatment plans dated August 22 and November 15, 2006.

4. Mr. Bhada is entitled to $1,488.13 in respect of the cost of the examination recommended in an OCF-22 form dated August 29, 2006, plus interest from October 1, 2006.

5. Security National is not required to pay Mr. Bhada a special award.

January 23, 2009

David Leitch Arbitrator

Date

APPENDIX “A” – PSYCHOLOGICAL PRE-ASSESSMENT GUIDELINES

Intake Screening for Proposing Psychological Assessments

Psychologists must now apply (with rare exceptions) for prior approval to proceed with assessments in order for the insurer to be obligated to pay for an assessment. This entails completing an OCF-22 Application for Approval of Assessment form describing the insured’s present symptoms, and the rationale for, and details of, the proposed assessment. The information required to complete the OCF-22 is obtained through an intake screening. Exceptions to the requirement for prior approval are included in the OCF-22 and are described in the Statutory Accident Benefits Schedule (SABS). Once the OCF-22 is submitted, the insurer must respond within specified timelines or the assessment is “deemed approved”.

Indicators to Complete an Intake Screening to Propose a Psychological Assessment

1. Information Required for Completion of the OCF-22:

In order to complete the OCF-22, the psychologist must obtain sufficient information regarding the patient’s situation to show that a psychological assessment is reasonable required. Although it is not intended that the psychologist complete an assessment in order to propose an assessment, the OCF-22 does require considerable information. Information is required to address the following questions:

• What is the status of the claim and insurance information?

• What extended Health Benefits are available?

• Is there any conflict of interest?

• Does the patient consent to communicate with treating health professionals and the insurer?

• What is the nature of the accident and injuries (in brief)?

• What is the purpose of the assessment under the regulations?

• What are the patient’s present complaints (in brief)?

• Is there an initial indication of a psychological/cognitive impairment and/or functional limitations requiring treatment, and/or psychological factors relevant to treatment/recovery from physical impairments?

• Is there an initial indication that the impairment or condition may be the result of an MVA?

• Has the applicant already been provided treatment under your care? If so, what are the clinical indicators to substantiate the reasonableness of the proposed assessment?

• Is it reasonable to proceed with psychological assessment at this time, including the following: necessary file information is available; assessment and treatment of physical impairments do not preclude psychological assessment; if a previous psychological assessment has been completed, further assessment is reasonable at this time?

• Does it appear that this assessor is appropriate to conduct the assessment in keeping with current accepted community and professional standards (including consideration of language, areas of professional competence, and other factors)?

• What are the specific details of the assessment (assessment interventions required, duration and estimated cost) and the rationale for this patient? For multidisciplinary assessments, what are the details and rationale for each component of the assessment?

• Does the patient consent to the proposed assessment, and further review if the insurer does not approve the assessment?

• Does the patient present with complicating factors necessitating proposing the upper end of the range for assessment time?

2. Intervention used to Obtain Information for the OCF-22:

The following steps may be utilized to complete the OCF-22:

• Receipt of the referral from the patient, health professional, insurer, other;

• Preliminary review of referral;

• Determination of the appropriateness of the referral;

• Patient contact to obtain patient consent for communication with insurer and treating health professionals (obtain signature on OCF-5 or other document to confirm consent to communicate with insurer and health professionals);

• Contact with collateral sources to obtain additional information and clarification, which may include: referral source; other health professional(s); adjuster; others;

• Brief review of medical file documentation (more extensive medical file of greater than 25 pages would generally take place within the assessment itself);

• Patient completion of a brief screening questionnaire, scoring, and interpretation by the psychologist;

• Patient completion of a brief screening questionnaire, scoring, and interpretation by the psychologist;

• Patient contact to confirm/clarify information regarding present complaints (may be completed by telephone or psychologist may choose to complete in initial meeting);

• Preparation of the OCF-22 application;

• Review with the patient of the content of the proposed assessment to obtain consent for submission of the application to the insurer and participation in a review process if the application is disputed by the insurer;

• Patient signature on the OCF-22 is optional for submission to the insurer; if the insurer disputes the application, the psychologist may facilitate a review by obtaining the patient signature.

Footnotes

1. 1Payable under the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The police report confirms that Mr. Bhada told the police officer that he “thinks tire blew” but the report itself only states “experienced a steering malfunction and lost control”. The report also confirms that the vehicle came into contact with a curb and a pole.
3. 3No evidence of vehicle damage was presented at the hearing.
4. 4Exhibit 1, Tab 3, p. 1
5. 5Exhibit 1, Tab 3, p. 6
6. 6Exhibit 1, Tab 3, p. 13
7. 7Exhibit 1, Tab 3, p. 8
8. 8Exhibit 1, Tab 3, p. 15
9. 9Exhibit 2, Tab 14, Pg. 2. If this constituted a failure or refusal to comply with section 42(10), Security National was entitled to deny Mr. Bhada housekeeping benefits after November 17, 2006 in accordance with section 35(10) of the Schedule, as argued by Mr. Lempp. In attempt to protect Mr. Bhada from this consequence, Mr. Ahmed argued that the examination in question would not have been conducted within the 10-day time limit imposed on Security National by section 42(11) paragraph 3 of the Schedule. However, since I decide below that Mr. Bhada was not entitled to housekeeping benefits on substantive grounds, I consider it unnecessary to address or decide these procedural issues.
10. 10Exhibit 2, Tab 37
11. 11Exhibit 2, Tab 40
12. 12Exhibit 2, Tab 3
13. 13Exhibit 2, Tab 16
14. 14According to the date stamp on Exhibit 2, Tab 8, Security National received Mr. Bhada’s claim for housekeeping expenses in the latter half of October 2006. This too may have been beyond the 30 day time limit. However, Security National led no evidence to establish how and when its letter of August 30, 2006 was sent to Mr. Bhada.
15. 15(FSCO A02-000482, June 9, 2003), pgs. 15 - 17
16. 162002 SCC 30 and [2002] S.C.R. 129
17. 17Exhibit 2, Tabs 9 and 13 are Explanation of Benefits Payable forms, dated October 25 and November 24, 2006. They both state: “Pursuant to sec. 32(3) you had 30 days in which to submit the applications to our office. As such we are unable to determine eligibility for benefits.”
18. 18Exhibit 2, Tab 4. Earlier paragraphs of the letter explained that the OCF-6 form was to be used to claim both Caregiver and Housekeeping Expenses, those being the benefits claimed by Mr. Bhada.
19. 19Exhibit 2, Tab 7
20. 20Exhibit 2, Tab 8
21. 21Exhibit 2, Tab 48 p. 5 of 7
22. 22Exhibit 2, Tab 45 and Exhibit 1, Tab 3, p. 57
23. 23Exhibit 1, Tab 3, p. 1
24. 24Exhibit 2, Tab 37
25. 25Exhibit 2, Tab 40
26. 26Exhibit 4
27. 27I wish to make some additional observations which do not form part of my reasons. I am troubled by Dr. Cowman’s apparent invitation to Dr. Perlmutter to submit additional information for her “further review”. Under section 38.2(13) of the Schedule, Security National had five business days after receiving Dr. Cowman’s report to provide Mr. Bhada and Dr. Perlmutter with both a copy of the report “and the insurer’s determination with respect to the application.” (my emphasis) It is, therefore, not clear that Security National was entitled to postpone making its determination in order to accommodate further exchanges between Dr. Cowman and Dr. Perlmutter. On the contrary, it would appear from section 38.2(13.4) that such a delay might make Security National liable to pay for the assessment. However, the matter is not free from doubt because, unlike section 38.2(13), section 38.2(13.4) imposes a time limit on the insurer’s obligation to provide the report obtained under section 42 (Dr. Cowman’s report) “or its determination in respect of the application.” (my emphasis) I note further that Dr. Cowman could have examined Mr. Bhada herself under section 42(7) of the Schedule if she thought additional information was required. But I will leave for another day the question of whether the Schedule permits a “two-step” procedure of the type suggested by Dr. Cowman’s “invitation” to Dr. Perlmutter.