Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 65

FSCO A07-002163

BETWEEN:

KEVIN TAM Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: January 26, 2009, January 18, 19, 20, 21, 28, February 1 and February 5, 2010, at the offices of the Financial Services Commission of Ontario in Toronto and by written submissions received by March 16, 2010

Appearances: George Pappas for Mr. Tam Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Kevin Tam, was injured in a motor vehicle accident on July 21, 2003. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Issues arose between the parties concerning the Applicant’s entitlement to certain statutory accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Tam 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 were identified by the parties as follows:

1. Pursuant to section 12 of the Schedule, is Mr. Tam entitled to receive a non-earner benefit as follows:

(a) from January 21, 2004 to July 21, 2005 at the rate of $185.00 per week; and

(b) from July 22, 2005 to date and ongoing at the rate of $320.00 per week?

2. Pursuant to sections 14 and 15 of the Schedule, is Mr. Tam entitled to receive the following medical and rehabilitation benefits:

(a) The cost ($3,138.70) of treatment pursuant to a plan from Toronto Poly Clinic dated November 17, 2003;

(b) $4,156.30 for the outstanding cost of treatment at Toronto Poly Clinic from December 2, 2003 to September 8, 2006;

(c) $26,110.60 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007; and

(d) $60.90 for the cost of parking between August 8, 2003 and January 11, 2006?

3. Pursuant to section 24 of the Schedule, is Mr. Tam entitled to payments for the cost of the following:

(a) Dr. Glickman’s report dated June 30, 2004 in the amount of $500.00;

(b) Dr. Kevin Rod’s report dated June 8, 2004 in the amount of $963.00; and

(c) Dr. Dana Wilson’s report dated July 27, 2004 in the amount of $1,391.00?

The Applicant originally also claimed compensation for the cost ($1,558.20) of Dara Taylor’s File Analysis Report dated October 12, 2006 but this claim was withdrawn by counsel for the Applicant during his closing arguments.

4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

5. Is Wawanesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?

Note that the issue of a special award was raised by the Applicant during his closing arguments and it had not previously been identified as an issue in this arbitration.

6. Is Wawanesa liable to pay Mr. Tam’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

7. Is Mr. Tam liable to pay Wawanesa’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

1. Mr. Tam is not entitled to receive a non-earner benefit.

2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.

3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.

4. Pursuant to section 46(2) of the Schedule, Mr. Tam is entitled to interest for the overdue payment of the cost of the prescription medication set out above.

5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.

6. The decision on expenses is deferred at the request of the parties.

EVIDENCE AND ANALYSIS:

Overview

On July 21, 2003, Kevin Tam was driving westbound along Steeles Avenue West in Toronto (just west of Bathurst Street) when his vehicle was struck on the driver’s side by a pick-up truck moving in the same direction. Mr. Tam was 31 years old at the time and was on his way to a class being held by Seneca College (in which he was enrolled as a full-time student) at the York University campus. The police attended the accident scene and completed a report. No ambulance was called. The vehicle that Mr. Tam had been driving was not operable. Mr. Tam’s father came to the scene and drove Mr. Tam to York University. Mr. Tam was only in mild discomfort on the day of the accident. He testified that he had some neck stiffness, some pain in his right foot and a bruise on his chest. Later that day, he developed pain in his lower back. When his symptoms did not resolve, he went to see his family physician, Dr. Wong, two days later (July 23, 2003).

Mr. Tam graduated with a Bachelor of Science degree from the University of Toronto in 1993. He then attended Northeastern University in Boston, Massachusetts, where he graduated as a pharmacist in 1999. That same year, he was licensed to practice as a pharmacist in Massachusetts, which he did until 2002.

In spring 2002, Mr. Tam returned to Toronto. He has given as his reason for his return his dislike of changes to his working conditions proposed by the company that took over the pharmacy chain at which he had been working and his desire to be in Toronto to assist his ailing grandmother. He did, however, also leave Massachusetts under a cloud of suspicion as he was being investigated by the Massachusetts Division of Professional Licensure for alleged misconduct.² In the fall of 2002, he enrolled in a one-year, full-time, post-diploma certificate program at Seneca College: Pharmaceutical Regulatory Affairs and Quality Operations. Because this was a co-op program, it involved a work component (for which Mr. Tam was paid) which Mr. Tam performed at Cedar Lane Laboratories in Hornsby, Ontario in January and February 2003. This was Mr. Tam’s only employment in the one-year period preceding the accident. He was almost finished his program at Seneca College when the accident occurred on July 21, 2003. In the month or so following the accident, Mr. Tam was able to return to his studies. He wrote and passed all of his final exams (in fact, he received excellent marks in all of his courses³). He graduated with honours.

Mr. Tam’s initial symptoms, as noted by Dr. Wong (his family physician), consisted of: right ankle pain, bruising on his left rib cage, headaches and minor neck pain, lower back pain, right lower thigh pain and numbness and a “pins and needles” sensation in the toes of the right foot. Dr. Wong sent Mr. Tam for an x-ray but the results were unremarkable other than “minimal chronic L1-L2 disc disease” (i.e. slight narrowing of the disc space at the L1-L2 area of the lumbar spine). In a disability certificate from Dr. Wong (received by Wawanesa on August 19, 2003), Dr. Wong’s primary diagnosis was “soft tissue injuries to back” with a secondary diagnosis of “contusion to left side of chest”. Dr. Wong prescribed Vioxx and Percocet for the pain and recommended a follow-up visit and that Mr. Tam seek out appropriate rehabilitation.

In September 2003, Mr. Tam reported to Wawanesa’s assessors that he was independent in his activities of daily living and was able to perform most of his pre-accident housekeeping and home maintenance activities. He was, however, complaining of ongoing problems, especially with respect to pain in his lower back and numbness and tingling in the toes of his right foot. He began to be treated at the Toronto Poly Clinic. The Toronto Poly Clinic prepared treatment plans for Mr. Tam and these initial plans were approved by Wawanesa.

In or about September 2003, Dr. Kevin Rod, director and owner of the Toronto Poly Clinic, began to prescribe Oxycontin, a narcotic, to provide Mr. Tam with pain relief. Dr. Rod also began to have Mr. Tam undergo a number of diagnostic tests and see a number of specialists in order to try to ascertain the cause of Mr. Tam’s ongoing complaints. Over the next few months, Mr. Tam underwent an EMG study, a CT scan and a bone scan. These tests revealed disc bulges and cystic lesions that might be compressing or impinging on nerve roots. A neurosurgeon determined that Mr. Tam was not a candidate for surgery. Dr. Dana Wilson (orthopaedic surgeon) concluded that, while the disc bulges and cysts in Mr. Tam’s spine likely predated the 2003 accident, their existence may have made Mr. Tam more vulnerable to this type of impact. Dr. Glickman was also of the opinion that the cysts could be compressing on adjacent nerve roots and could provide a plausible explanation for some of Mr. Tam’s ongoing symptoms.

Beginning in the fall of 2003, Mr. Tam was complaining that his lower back pain was worsening so Dr. Rod increased the dosage of Oxycontin.

In late 2003, Toronto Poly Clinic was recommending more physiotherapy. Wawanesa referred the issue to a Designated Assessment Centre (DAC). Mr. Tam apparently told the DAC assessors that he was independent in self-care, transportation (i.e., driving) and his activities of daily living, that he had recently graduated and that he was looking for work. He also told them that he had experienced a 50% improvement in symptomology. The DAC concluded that more passive therapy would not be helpful.

Around the same time, Mr. Tam was reporting to Dr. Rod that, while his other symptoms might gradually be improving, his lower back pain was severe and constant and the pain in his right leg, though intermittent, was severe. Dr. Rod continued to see Mr. Tam regularly (every one to two months) and, based upon the information he received from Mr. Tam, Dr. Rod would adjust the dosage or type of medication prescribed. Presently, Mr. Tam continues to take Oxycontin prescribed by Dr. Rod and the dosage has steadily increased over the years (although it has stabilized for the last few years). Wawanesa has refused to pay for the cost of any medication from November 17, 2003 onwards.

It appears to be uncontroverted that Mr. Tam has developed chronic pain as a result of the accident. The parties do not agree on either the extent to which this pain limits the ability of the Applicant to function or the most appropriate method of assisting the Applicant to deal with this pain. By 2007, Mr. Tam was also diagnosed as suffering from depression, anxiety and cognitive difficulties as a result of the 2003 accident and Wawanesa approved psychotherapy for the Applicant to deal with his depression and anxiety.

Since graduating from the Seneca College program in August 2003, Mr. Tam has not returned to any formal studies. He has not been employed either. He has little social life and is no longer involved in sports. He spends most of his time at home. He maintains that his life is dramatically different than it was prior to the accident. As a result of this change, in addition to the other accident benefits being claimed herein, Mr. Tam is claiming entitlement to weekly non-earner benefits.

Procedural and Evidentiary Issues

On the first day of the hearing, January 26, 2009, counsel for Wawanesa objected to the admission into evidence of the Applicants Arbitration Brief as it had only been served upon the Insurer 14 days prior to the first day of the hearing, rather than at least 30 days in advance as required by Rule 39.1 of the Dispute Resolution Practice Code (the “Code”) Notwithstanding the objection of the Insurer, I allowed all of the Applicant’s documents into evidence and marked the Applicant’s Arbitration Brief as Exhibit “2”.

The Insurer further alleged that the Applicant had failed to comply with Rules 33 and 41 by failing to identify the witnesses he intended to call either at the pre-hearing conference or at least 30 days prior to the commencement of the hearing. Mr. March, counsel for Wawanesa, indicated that he only received such notice a few days before the commencement of the hearing. Mr. Neinstein, counsel for the Applicant, did not refute this. Furthermore, the Applicant did not notify potential witnesses of the intention to call him or her to give evidence at the hearing at least 30 days before the first day of the hearing. I was advised that the Applicant wished to call as a witness Sophie Eng, an adjuster at Wawanesa, but that Mr. Neinstein only advised Ms. Eng of this intention a few days before the date set for the commencement of the hearing. Mr. Neinstein did not refute this allegation. No explanation was offered by Mr. Neinstein for these breaches of the Code. In the circumstances, I exercised my discretion under Rule 73.5 to exclude Sophie Eng from the obligation to attend or testify at the hearing in compliance with the summons served upon her by the Applicant. The only other witnesses identified by the Applicant at that time were Dr. Rod and the Applicant himself.

Reasons for my rulings were provided orally at the hearing on January 26, 2009 and then again in my written interim decision of January 30, 2009. When I announced my rulings at the hearing, Mr. Neinstein advised me that he did not believe that he could continue to act on behalf of the Applicant. The Applicant confirmed to me that he had lost confidence in Mr. Neinstein and wished to retain new counsel before proceeding with this hearing. Thus, Mr. Neinstein was seeking permission to be removed from the record and the Applicant was seeking an adjournment in order to obtain new legal representation.

I granted Mr. Neinstein’s request to be removed from the record. Over the objection of counsel for Wawanesa, I also granted the Applicant’s request for an adjournment, on certain terms. Mr. March expressed his concern that the Applicant might seek to take advantage of the adjournment to bolster his case and seek to introduce new evidence or call additional witnesses. Mr. March submitted that, if I allowed this to occur, applicants who are unprepared or who are found to have breached our Rules may simply fire their lawyers in order to gain time in which to cure such defects. While I appreciated the Insurer’s position, I did not want to fetter my own discretion; I wished to at least provide an opportunity for Mr. Tam’s new counsel, who might have a different theory of the case, to seek to introduce new evidence or new witnesses, provided that any such issues could be dealt with well in advance of the date set for the resumption of the hearing. I therefore included in my interim order of January 30, 2009, the following term:

Neither party shall, without leave, file any additional documents for use at this hearing or call any witnesses other than those already identified at this hearing. Any request for such leave must be made in writing and must be served on the opposing party and filed with me at least 60 days prior to the resumption of the hearing.

In or about April 2009, Mr. Tam retained the services of Howie, Sacks & Henry LLP to represent him in this matter. The pre-hearing discussion was resumed on May 21, 2009 and the resumption of the hearing was set for January 18, 2010.

In November 2009, the Applicant (through his new counsel) brought a motion seeking leave to file a report from Dr. Godwin K. Lau, dated July 25, 2009 and leave to call Dr. Lau and Dr. Daniel Goldstein as witnesses at the hearing. I received submissions from both parties and issued my decision on December 2, 2009 wherein I granted leave to the Applicant to file Dr. Lau’s report and to call him as a witness but I did not grant leave to the Applicant to call Dr. Goldstein (for reasons provided in my decision of December 2, 2009).

When the hearing resumed on January 18, 2010, the Applicant, for the first time, sought leave to file the following eighteen additional documents:

1. Application for Accident Benefits (OCF-1) package dated August 19, 2003;

2. Application for Mediation package dated April 12, 2004;

3. Application for Mediation package dated February 7, 2006;

4. Toronto Poly Clinic invoices dated November 4, 2005 and September 14, 2006;

5. Correspondence from Neinstein & Associates to Wawanesa dated January 16, 2008, February 1, 2008 and March 4, 2008;

6. Correspondence from Neinstein & Associates to Wawanesa dated February 12, 2007;

7. Correspondence from Wawanesa to Kevin Tam dated August 8, 2003;

8. Application for Expenses dated June 30, 2004;

9. Application for Expenses dated August 16, 2004;

10. Application for Expenses dated September 14, 2005;

11. Application for Expenses dated June 28, 2006;

12. Application for Expenses dated August 2, 2006;

13. Application for Expenses dated April 5, 2007;

14. Application for Expenses dated February 6, 2008; and

15. Application for Expenses dated April 21, 2008.

Counsel for the Applicant, Mr. Pappas, only advised Wawanesa of his intention to seek to file these additional documents by way of letter to Mr. March dated January 15, 2010. Mr. Pappas argued that many of these documents form the very foundation of some of the claims being advanced by the Applicant. If that is true, I cannot imagine why they would not have been introduced by the Applicant’s original lawyers as part of the Applicant’s Arbitration Brief (Ex. 2). If they had been omitted as a result of an oversight on the part of Mr. Tam’s original counsel, then one has to wonder why his new counsel did not follow the procedures set out in my order of January 30, 2009 in order to seek leave (at least 60 days in advance of the resumption of the hearing) to have these documents added to the record. Mr. Pappas did follow those procedures to seek leave to file the report of Dr. Lau but he did not seek leave to introduce these eighteen documents as part of that motion and, in fact, did not seek such leave until the first day of the resumed hearing. Mr. Pappas also provided no explanation for failing to comply with my order of January 30, 2009 other than that he thought that paragraph 3 of the order only applied to medical documentation. Such an explanation is incredible to me. Even if I were to find otherwise, there still is no reasonable explanation for waiting until the last business day before a hearing (or a resumed hearing) to advise opposing counsel of one’s intent to rely upon additional documents, especially in the circumstances of this case where the hearing was delayed for a considerable period of time because of the failure of the Applicant and his previous counsel to comply with various provisions of the Code.

Mr. Pappas submitted that there is no prejudice to the Insurer as it has seen these documents or has had them in its possession for many years. In my view, even if true, that is not determinative of the issue. The purpose of the rules about exchange of documents well in advance of the hearing is to ensure that each side will know, of the hundreds or thousands of documents that may exist and which may be relevant to the issues in dispute, which ones the other side actually intends to rely upon at the hearing.

I sustained the objection of the Insurer and refused to accept these additional eighteen documents into evidence. I also refused to accept a “Supplementary Arbitration Brief” from the Insurer for the same reason (i.e., failure to comply with my order of January 30, 2009).

The Applicant then objected to the surveillance evidence from Mastromarco Investigation Agency Inc. (“Mastromarco”)⁴ that had already been filed, as there appeared to be a discrepancy between the number of hours of video evidence referred to in a covering letter from Mastromarco and the number of hours of video evidence on the DVD provided. The Applicant was taking the position that if not all of the surveillance evidence was produced, none of it should be allowed into evidence. I reserved my decision on this point to allow Mr. March to look into the matter further. Ultimately, counsel for the Applicant had the opportunity to cross-examine a representative from Mastromarco about this matter and I allowed this evidence to remain part of the record since I was satisfied, on a balance of probabilities, that reference to a greater number of hours of video evidence in the cover letter represented a clerical error, that all of the surveillance evidence has been produced and that the Insurer had complied with the requirements of Rule 40 of the Code.

Claims under Section 24 of the Schedule

Pursuant to section 24 of the Schedule, Mr. Tam originally claimed entitlement to payments for the cost of the following:

(a) Dr. Glickman’s report dated June 30, 2004 in the amount of $500.00;

(b) Dr. Kevin Rod’s report dated June 8, 2004 in the amount of $963.00;

(c) Dr. Dana Wilson’s report dated July 27, 2004 in the amount of $1,391.00; and

(d) Dara Taylor’s File Analysis Report dated October 12, 2006 in the amount of $1,558.20.

The last item was withdrawn by Applicant’s counsel during his closing arguments.

With respect to the remaining three items (i.e., the reports of Drs. Glickman, Rod and Wilson), Wawanesa is only required to pay for the cost of these reports if:

1. the cost is reasonable;

2. the report in question was reasonably required in connection with a benefit claimed or the preparation of a treatment plan; and

3. the expense was submitted for approval before the assessment took place (according to s. 24(1.1) of the Schedule as it read when these claims were submitted to Wawanesa) or the Applicant can demonstrate that there were exceptional circumstances which relieved the Applicant (under subsection 24(1.2) of the Schedule) of the normal obligation to seek Wawanesa’s approval before incurring the expense.

From the records before me, it appears that none of the three expenses in question were submitted to Wawanesa for approval before the reports were prepared and the Applicant has failed to argue (or adduce any evidence in support of an argument) that the Applicant was exempt from the normal requirement that he seek prior approval from Wawanesa. Consequently, Wawanesa is not required to pay for the cost of these reports.

Claims under Section 14 and15 of the Schedule other than for Prescription Medications

Pursuant to sections 14 and 15 of the Schedule, Mr. Tam claims entitlement to receive:

(a) The cost ($3,138.70) of treatment pursuant to a plan from Toronto Poly Clinic dated November 17, 2003;

(b) $4,156.30 for the outstanding cost of treatment at Toronto Poly Clinic from December 2, 2003 to September 8, 2006;

(c) $60.90 for the cost of parking between August 8, 2003 and January 11, 2006.

With respect to the cost ($3,138.70) of treatment pursuant to a plan from Toronto Poly Clinic dated November 17, 2003, the treatment plan itself is not in evidence. The author of that treatment plan, Dr. Daniel Goldstein, chiropractor, was not allowed to testify at this hearing for reasons given in my interim order of December 2, 2009. At the time he prepared this report, Dr. Goldstein was working at the Toronto Poly Clinic, where he reported to Dr. Kevin Rod, director and owner of the Toronto Poly Clinic. Dr. Rod testified at this hearing but offered no opinion with respect to the treatment plan in question. In January 2004, a DAC (designated assessment centre) assessment of this treatment plan by Dr. David Hytman (chiropractor) found that this plan was neither reasonable nor necessary and that further facility-based physiotherapy treatment was not indicated. Dr. Hytman concludes as follows:

Today’s examination did not reveal any significant dysfunction of the spine and surrounding musculature and there was no evidence of any neurological deficit. He displayed normal strength with full and pain free spinal ranges of motion with the exception of some mild pain complaints on lumbar end range extension. He has received a full course of approved active and passive therapy and it is now more than 5 months post accident and further passive therapy, in my opinion, would not be of any obvious benefit. He should continue with self-directed home exercise. It is therefore my opinion that the disputed treatment plan is neither reasonable nor necessary.

The Applicant did not seek to cross-examine Dr. Hytman on his conclusions. The Applicant himself failed to testify about this treatment plan.

Based upon the foregoing, I find that the Applicant has failed to prove that he is entitled to the cost ($3,138.70) of treatment pursuant to the plan from Toronto Poly Clinic dated November 17, 2003.

With respect to the Applicant’s claim for $4,156.30 for the outstanding cost of treatment at Toronto Poly Clinic from December 2, 2003 through September 8, 2006, the Applicant again failed to adduce sufficient evidence to meet his evidentiary burden. No invoices for this treatment have been entered into evidence to allow me to ascertain the date, nature, frequency, duration and cost of each treatment. The Applicant did not testify, except in the most general way, about the treatment he received at the Toronto Poly Clinic or the benefits he derived therefrom; he testified that the treatment was of limited assistance. The Applicant also failed to elicit more detailed evidence on this topic from Dr. Rod when Dr. Rod testified before me. It is not clear to me whether the treatment from December 2, 2003 through September 8, 2006 was pursuant to one or more treatment plans submitted to Wawanesa. It is possible that the some of the treatment provided during the period December 2, 2003 to September 8, 2006 was pursuant to the treatment plan of November 17, 2003 and, if that is the case, this claim would be duplicative of the earlier claim for treatment provided in accordance with that plan (which claim I have dismissed for the reasons provided earlier in this decision). Given the paucity of information available to me, I find that I must also deny this claim.

With respect to the last item (parking), it appears that Wawanesa did pay for parking when the Applicant attended for medical treatment or an assessment that had been approved by Wawanesa. With respect to the parking expenses in dispute, the Applicant failed to adduce copies of any invoices showing particulars of the expenses incurred. The Applicant also did not testify about these expenses. While it may be possible to claim parking as part of a rehabilitation expense, there must be evidence to link the parking expense to some form of rehabilitation that has been approved or that has been proven to be reasonable and necessary. Such evidence was lacking in this case and, as a result, this expense is denied.

Claims for Prescription Medications

Mr. Tam testified that for the first two or three months after the accident, the cost of his medication was covered under an insurance plan through Seneca College. After that, he had to pay for medication himself. According to Mr. Tam, to date, he has spent over $30,000.00 on prescription medication (for impairments he suffered as a result of this motor vehicle accident). Other than the cost of medications covered for the first few months under his plan at Seneca College, Mr. Tam states that he submitted to Wawanesa for reimbursement all of his expenses for medications. These expenses are summarized at Appendix A to this decision.⁵ In this application, pursuant to sections 14 and 15 of the Schedule, Mr. Tam is claiming entitlement to $26,110.60 for the cost of prescription medications he purchased from November 27, 2003 through April 2, 2007.⁶ Wawanesa has refused to pay these expenses on the basis that such medications are not reasonable and necessary.

Technical Arguments

Both parties raised what I will call “technical” arguments about alleged breaches by the other party of procedural requirements under the Schedule.

Mr. March, on behalf of Wawanesa, submitted in closing that:

(1) since the Applicant has failed to put before me copies of the original applications for these expenses, including copies of treatment plans, prescriptions and invoices, there is no evidence that a claim was ever made and I have no jurisdiction to decide this issue; and

(2) there is no proof that Mr. Tam paid for these prescriptions.

Mr. Pappas, on behalf of Mr. Tam, submitted in closing that Wawanesa’s denial of these claims was improper because every denial was based upon a “paper review” that was not permitted under the Schedule (in that there is no evidence that it was done as either a section 42 assessment or a “med/rehab DAC”).

The main problem with these arguments is that both parties failed to raise these issues until towards the end of the hearing, failed to adduce sufficient evidence to allow for meaningful anaylsis and/or failed to make submissions (with respect to this part of the Applicant’s claim) as to which version or versions of the Schedule the other party allegedly breached.

Wawanesa’s denial of the drug expenses was always explicitly made on the basis that such medication was not reasonable and necessary for the treatment of Mr. Tam’s accident-related injuries. There is no evidence that, prior to the hearing of this application, Wawanesa ever took the position that there was some defect in the way in which the claims for drug expenses were advanced or that insufficient documentation was provided by Mr. Tam to satisfy Wawanesa that he had actually incurred the expenses in question.

Nevertheless, Mr. March argued that, without proof that Mr. Tam made an application to Wawanesa for these drug expenses (i.e. without copies of the relevant application forms being entered into evidence) and without proof that such applications were made in the right way, I have no jurisdiction to decide this issue. I disagree. I think that this is a question of evidence, not jurisdiction. In order to adjudicate this dispute, I must decide whether there is sufficient evidence before me that these expenses were incurred by or on behalf of Mr. Tam, that he submitted those expenses to Wawanesa, that I have sufficient particulars about the expenses (dates, medications purchased and cost) to adjudicate the issue and sufficient evidence to permit me to decide whether the expenses were reasonable and necessary. I find that I do have sufficient evidence to adjudicate this issue based upon: the testimony of Mr. Tam; the testimony, reports and clinical notes and records of Dr. Rod; the report and testimony of Dr. Platnick; and the OCF‑9 forms from Wawanesa which particularize in great detail the claims that Wawanesa received from the Applicant and the reason for the denial of these claims by Wawanesa.

Mr. Pappas, on behalf of the Applicant, raised concerns about the manner in which the issue of Mr. Tam’s medications came to Dr. Platnick for his review and opinion. This issue, however, was not raised by Mr. Pappas until the cross-examination of Dr. Platnick.

Dr. Platnick’s report was based upon a “paper review” that Dr. Platnick conducted on behalf of Seiden Health Management Inc. He testified that he did not deal directly with Wawanesa or the Applicant and he could not answer whether this had been set up as either an insurer’s examination or a DAC. Dr. Platnick did not know what notice, if any, had been given to the Applicant. I have no other evidence on this issue to indicate whether Dr. Platnick’s assessment was or was not done in accordance with the requirements of the Schedule (as it read at that time).

Given these vague and late allegations by both parties and the lack of a complete record, I will neither grant nor deny these claims based upon alleged technical breaches of the Schedule. I will, instead, adjudicate this issue on its merits.

Merits

Dr. Rod began treating Mr. Tam in September 2003 and has been treating him ever since. Dr. Rod is licensed as a family physician in Ontario. In or about 2001, Dr. Rod founded the Toronto Poly Clinic, a multi-disciplinary clinic for treatment of chronic pain which currently employs eight doctors and other medical professionals. Thus, for approximately nine years, Dr. Rod’s practice has focused on patients who have developed chronic pain.

According to Dr. Rod, chronic pain:

• is defined by the International Association for the Study of Pain as pain that has not resolved after three to six months

• is an illness, not a symptom

• can affect physical and psychological functions, including energy, sleep, sexual function, memory and concentration, activities of daily living and mood (leading in some cases to depression, anxiety and irritability).

Dr. Rod testified that where chronic pain has its origins in a physical injury, one should try physical therapy, counselling, medication and possibly surgery. According to Dr. Rod, for chronic, non-malignant pain, the Ontario College of Physicians and Surgeons recommends prescribing longer-acting narcotics (such as Oxycontin, Hydromorphcontin, MS Contin, Fentinol patches, and Codeine Contin). Dr. Rod states that when it comes to pain, unless there is reason to doubt his patient, he relies on what the patient reports in terms of the degree of pain and the amount of relief provided by treatment/medication. He also relies on medical information he receives about his patient from other practitioners and on the observations he makes during his meetings with and examinations of the patient. He states that, when he prescribes a narcotic, he starts with a low dose and then gradually adjusts the dosage upwards until he finds a level that is stable (i.e., provides the patient with adequate relief so that the patient can function reasonably with a minimum of side-effects). Dr. Rod points out, however, that every person has a different tolerance for specific drugs and that a person’s body tends to develop a tolerance for a specific narcotic over time so that it is common to need to gradually increase the dosage in order to achieve the desired effect.

With respect to Mr. Tam, when Dr. Rod first met him, his main complaint was of severe low back pain which was on the verge of becoming chronic. Given the absence of complaints of low back pain prior to the accident and the history of complaints since the accident, Dr. Rod concluded that the back pain had been caused by the July 2003 motor vehicle accident. Dr. Rod found Mr. Tam to be credible. He points out that Mr. Tam acknowledged that his ankle and chest pain resolved and that, in his experience, people who deliberately exaggerate their symptoms rarely acknowledge improvement in any area.

Mr. Tam was complaining of severe back pain and pain radiating down his right leg. The complaints were such that Dr. Rod suspected some spinal injury and sent him for diagnostic tests of his spine. Dr. Rod also referred Mr. Tam to a number of specialists to further investigate the cause of his ongoing symptoms.

Dr. Rod initially prescribed Oxycontin in a low dose for pain management. According to Dr. Rod, Oxycontin is preferred over other drugs because it has some immediate effect but also provides long-lasting pain relief. Dr. Rod continued to see Mr. Tam approximately once per month and increased the dosage of Oxycontin over time, as he deemed reasonable and necessary to give pain relief to Mr. Tam and to permit him to retain sufficient levels of function so that he could enjoy some quality of life. A summary of the dosages of Oxycontin that were prescribed to Mr. Tam by Dr. Rod can be found at Appendix B to this decision.⁷

Dr. Rod acknowledges that the current level of Oxycontin he is prescribing is quite high but, given Mr. Tam’s tolerance for Oxycontin, this dosage is necessary to allow Mr. Tam to have a better quality of life, to have greater pain-free movement and to enjoy a better quality of sleep.

The dosage level has been stable since 2007. Dr. Rod is satisfied with Mr. Tam’s level of function based upon this current level of medication.

While Mr. Tam may now be physically and psychologically dependent upon Oxycontin, according to Dr. Rod, Mr. Tam has not exhibited any signs of addiction or abuse of Oxycontin. Mr. Tam did admit himself into a “detox” program in the summer of 2004 but that was related to his taking of cocaine at the same time he was taking Oxycontin and related to Mr. Tam’s concern about possible side-effects of taking Oxycontin. There is no evidence of any use by Mr. Tam of cocaine since completion of that program. Also, according to Dr. Rod, there is no known organ toxicity associated with high doses of narcotics and Mr. Tam has not been suffering any serious adverse side effects. Nevertheless, in response to Mr. Tam’s concerns about Oxycontin, there was a two-week period in June 2004 where Hydromorphcontin was tried as an alternative but Mr. Tam complained that it caused severe fatigue so he was put back onto Oxycontin.

In the opinion of Dr. Rod, given Mr. Tam’s age, continuing level of pain and the amount of medication he has required for many years, the prognosis for Mr. Tam is guarded at best and, in all likelihood, he will require a high level of pain medication indefinitely.

When Wawanesa received the initial claim for $2,411.07 for prescription drugs, it responded on August 17, 2004 that the “Prescription drugs seem excessive” and “Your file has been referred to a drug file review.” This “drug file review” was conducted by Dr. Platnick, who prepared a report dated September 10, 2004 (Ex. 1, Tab 31). Dr. Platnick also testified at this hearing.

Dr. Howard Platnick is a family physician with knowledge and experience in musculoskeletal issues, disability management and rehabilitation. Based upon his review of the documentation that was provided to him, Dr. Platnick concluded as follows:

…Mr. Tam sustained uncomplicated soft tissue injuries to his neck, back and chest. He has had conservative treatment including physiotherapy, chiropractic, and pharmacotherapy with improvement in his overall condition. By September 2003, he had returned to all of his pre-accident activities of daily living including personal care, homemaking, community mobility, and transfer activities. The occupational therapist did not identify the need for any form of assistance.

Based on the soft tissue injuries sustained, it would have been appropriate to provide analgesic medication for up to three-months post-accident. Dr. Wong prescribed Vioxx and Percocet and the use of these medications would be supported for 12 weeks post-accident or until approximately the end of October 2003. His uncomplicated soft tissue injuries would have resolved by the end of October 2003 and there would not have been the need for further analgesic medication.

Dr. Platnick disapproved of the use of narcotics for the type of injuries sustained by Mr. Tam and concluded that the use of Oxycet, Oxycodone, Hyromorphinecontin and Dilaudid during the period November 2003 through May 2004 was not reasonable and necessary to treat accident-related injuries. Dr. Platnick also found no justification for the prescription of Baclofen (a muscle relaxant) or Cialis (used for erectile dysfunction) for any accident-related injuries. He concludes that:

Based on review of the documentation, there is no need for the ongoing use of any form of medication as a result of the accident.

Based upon this single report of Dr. Platnick in September 2004, Wawanesa denied the initial claim and all subsequent claims by Mr. Tam for expenses related to prescription medication.

On cross-examination, Dr. Platnick acknowledged that he did not examine Mr. Tam and could not assess his credibility. He stated that he has no reason to doubt Dr. Rod’s diagnosis of chronic pain. He confirmed that in some cases of chronic pain, it is appropriate to prescribe narcotics (including Oxycontin) if it provides pain relief and a return of function. Dr. Platnick acknowledges that he did not have the clinical notes and records of Dr. Wong or Dr. Rod when he prepared his own report.

On re-examination, Dr. Platnick explained his reasoning. According to Dr. Platnick, in the case of uncomplicated soft tissue injuries, the tissue damage will heal within a few months. If a person complains of ongoing pain (after the tissue ought to have healed), that is subjective and, according to Dr. Platnick, it is difficult to know what is causing that pain.

It appears to me that Dr. Platnick tends to discount complaints of pain related to soft tissue injuries. This may explain why, in his report, Dr. Platnick fails to mention the numerous references contained in the records that he did possess of Mr. Tam’s complaints of pain or the existence of objective evidence (for example, the CT scan, bone scan, report of Dr. Glickman) of problems with Mr. Tam’s spine that tended to support his pain complaints.

Dr. Platnick testified that he generally avoids the use of narcotics because there is a risk of side-effects and habitualization. According to Dr. Platnick, once people start taking narcotics, it is hard to get them to off the drugs; consequently, Dr. Platnick tries to avoid prescribing narcotics. After explaining his philosophy, Dr. Platnick acknowledged that other doctors have a different philosophy.

Indeed, Dr. Rod indicated that in his philosophy that every person is entitled (as a human right) to receive relief from pain. Dr. Rod agreed that therapy, counselling, analgesics and even surgery should be considered before long-term use of narcotics but that there are cases where such long-term use is necessary and appropriate and this is such a case.

It therefore appears to me that Dr. Platnick and Dr. Rod are at opposite ends of a philosophical spectrum when it comes to the use of narcotics for management of chronic pain. On the one hand, Dr. Rod may be a bit too cavalier about prescribing narcotics, accepting uncritically whatever he is told by his patients. On the other hand, Dr. Platnick may be too sceptical or dismissive of subjective complaints of pain. Also, Dr. Platnick’s characterization of Mr. Tam’s injuries as being uncomplicated soft tissue injuries may have been an oversimplification of the facts in this case.

Counsel for Wawanesa appeared to be challenging both the opinion and the methodology of Dr. Rod. I must confess that I am not entirely comfortable with a course of treatment that requires a relatively healthy young man to remain on high dosages of narcotics for many years. Wawanesa has suggested that the Oxycontin may be doing Mr. Tam more harm than good. There is, however, no persuasive medical evidence to support this assertion.

At the end of the day, I am forced to accept either: (1) the opinion of a doctor who was looking at one “snapshot” in time, who never even examined the Applicant, who had limited information available to him and who ignored the evidence of subjective but consistent complaints of pain and objective evidence (of disc bulges and large spinal cysts) that would tend to support the subjective complaints of low back pain; or (2) the opinion of a doctor who specializes in treating patients with chronic pain, who has been treating the Applicant since a few months after the accident and who has seen the Applicant every four to six weeks (on average) for the last six and a half years. In the circumstances, I find that I must give greater weight to the opinion of Dr. Rod than to that of Dr. Platnick. As a result, I find that the expenses incurred by Mr. Tam for the Oxycontin and Hydromorphcontin are reasonable and necessary. Since Dr. Rod did not testify about Baclofen, Oxycocet, Dilaudid, Cialis, Trazodone or Gabapentin, I am not allowing the expenses claimed for these medications.

According to the records filed, the total amount claimed by Mr. Tam for medication he purchased from November 17, 2003 through April 2, 2007 was $26,065.35 (see Appendix A). The vast majority of that claim is for Oxycontin. After deducting amounts claimed for Baclofen, Oxycocet, Dilaudid, Cialis, Trazodone and Gabapentin (a total of $519.33), I am ordering Wawanesa to reimburse Mr. Tam $25,546.02 (plus applicable interest pursuant to s. 46(2) of the Schedule).

Non-Earner Benefits

The Law

Pursuant to subsection 12 of the Schedule, an insured person who was enrolled on a full-time basis in post-secondary education at the time of the accident is entitled to a non-earner benefit if the person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. In such a case, the amount of the benefit shall be $185.00 for each week that the insured person is eligible to receive the benefit up to 104 weeks since the onset of the disability (except that no non-earner benefits are payable for the first 26 weeks after the onset of the complete inability to carry on a normal life) and $320.00 thereafter for each week that the insured person continues to be eligible to receive the benefit.

Subsection 2(4) of the Schedule defines “a complete inability to carry on a normal life.” It states as follows:

For the purposes of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

The Ontario Court of Appeal has recently considered these provisions in Heath v. MacLeod⁸ and has adopted the following general principles as being part of a proper approach to claims for non-earner benefits:

1. Generally speaking, the starting point for the analysis will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

2. This requires more than taking a snap-shot of the claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the person’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

3. In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

4. It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

5. The phrases “engaging in” should be interpreted from a qualitative perspective. The manner in which an activity is performed and the quality of performance post-accident must be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.

6. In cases where pain is the primary factor that allegedly prevents the insured person from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

How the Claim for Non-Earner Benefits was Advanced in this Case

On or about August 11, 2003, less than one month after the accident, the Applicant, through his solicitors, sent a completed Application for Accident Benefits (Form OCF-1) to Wawanesa. In it, the Applicant reported the details of the accident, the name and address of his family doctor (Dr. Wilfred Wong) and the details of the automobile insurance policy. In Part 5 of this form, it indicates that Mr. Tam was a student or recent graduate. In Part 6, it says that he was attending school on a full-time basis at the time of the accident and identifies the school (Seneca College) and the Program (Pharmaceutical Regulatory Affairs). It lists the projected date for completion of studies as September 1, 2003. There is no date provided under the heading of “date last attended”. It states that at the time of completion of the Form 1, Mr. Tam was not now attending school but that he was able to return to school after the accident (no date for his return to school is written in the space provided). Part 7 (Caregiver) and Part 8 (Income Replacement Determination) are struck through.

Around the same time, Wawanesa received a Disability Certificate for Mr. Tam from Dr. Wong. It indicates that his first examination of Mr. Tam related to these symptoms occurred on July 23, 2003 and that he had most recently examined Mr. Tam on August 15, 2003. Dr. Wong describes Mr. Tam’s impairment as “soft tissue injuries to back” and “contusion to left side of chest”. At the beginning of Part 4 of this form, there is a pre-printed section describing the disability test for different types of accident benefits (income replacement benefits, caregiver benefits and non-earner benefits). When the form specifically asks, “Does the applicant suffer an impairment that substantially prevents him or her from engaging in pre-accident caregiving activities?”, Dr. Wong checks off that this is “Not Applicable”. When the form asks, “Does the applicant suffer an impairment that prevents him or her from carrying on substantially all his or her normal pre-accident activities?”, Dr. Wong checks off “Yes”. When asked to describe the activities that Mr. Tam could not perform, Dr. Wong lists “activities that require bending of his back such as mowing, sports, lifting”. When the form asks, “Does the applicant suffer from an impairment that substantially prevents him or her from performing pre-accident housekeeping and/or home maintenance activites?”, Dr. Wong says “Yes” and lists the activities that Mr. Tam is unable to perform as “mowing, washing floors, doing laundry”. When asked if the applicant sustained an impairment that prevents him or her from continuing with an educational program, Dr. Wong checked off that this is “Not Applicable”.

There may have been other documents exchanged by the parties around this time but, once again, the record before me is incomplete.

On August 29, 2003, Sophie Eng, Claims Adjuster with Wawanesa wrote a letter to Mr. Tam (and copied his lawyers). The letter reads as follows:

We acknowledge receipt of your Application for Accident Benefits form, and noted that you are a full time student and unemployed. This would place you in the Non-Earner category. In order to qualify for a Non-Earner benefit, there must be a complete inability to carry on a normal life.

As per the Statutory Accident Benefits Schedule, Non-Earner Benefit would commence 26 weeks after the date of the motor vehicle accident, should the insured person suffers a complete inability to carry on a normal life as a result of the accident.

If you feel that you are entitled to the non-earner benefit at 26 weeks, enclosed is another blank Disability Certificate (OCF-3/59) for your use.

Enclosed is the Explanation of Benefits Payable by Insurance Company form for your records.

The Explanation of Benefits Payable form (Form A — OCF-9/59) consists of one page, dated August 29, 2003.⁹ Under Part 3 (Non-Earner Benefit Expenses) the “Not Eligible” box is checked off and the explanation given immediately below is “To qualify there must be a complete inability to carry on a normal life.”

Although the record before me is incomplete, it appears from the evidence presented at this hearing that no further steps were taken by Mr. Tam or his counsel to pursue a claim for non-earner benefits for many years. In fact, in 2005 the Applicant commenced an action (Court File No. 05-CV-284584) against Wawanesa in the Ontario Superior Court of Justice in which he sought, amongst other relief, “payment of income replacement benefits” (which would be inconsistent with any claim for non-earner benefits). Ultimately, that action was discontinued.

On December 25, 2007, Dr. Rod prepared a new Disability Certificate for Mr. Tam and it was submitted to Wawanesa in support of a claim for, amongst other things, non-earner benefits. On March 19, 2008, Sophie Eng wrote to Mr. Tam (and copied his lawyers) as follows:

We acknowledge receipt of your application for non-earner benefit and the December 25, 2007 Disability Certificate (OCF-3) completed by Dr. Kevin Rod January 18, 2008.

As per our August 20, 2003 letter and OCF-9/59 form; in order to qualify for a non-earner benefit, there must be a complete inability to carry on a normal life. A blank OCF-3 was sent for your use should you feel that you are entitled to the non-earner benefit at 26 weeks.

In reference to Section 32.(1.1)(a) of the Statutory Accident Benefits Schedule, a person shall notify the insurer no later than the 30th day after the circumstances arose that gave rise to the entitlement to the benefit. In your case, the application for benefit would be due January 26, 2004.

Given the information in file, you do not suffer a complete inability to carry on a normal life. We maintain our position that no non-earner benefit would be payable.

Ms. Eng enclosed with this letter a three-page Explanation of Benefits Payable (Form OCF-9), also dated March 19, 2008, which provides the following explanation as to why non-earner benefits would not be paid:

Per our March 19, 2008 letter, given the information in file, you do not qualify for non-earner benefits. We maintain our position that no non-earner benefit would be payable.

Technical Arguments

(i) Insurer’s Arguments

Wawanesa argued that section 32 of the Schedule requires an insured person to notify the insurer of his or her intention to apply for a benefit no later than the 30th day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable thereafter. Wawanesa takes the position that it did not receive an application for non-earner benefits until January 2008. Mr. Tam has offered no explanation for this delay. Therefore, according to Wawanesa, his claim should be dismissed.

I reject this argument because it completely ignores what occurred in August 2003. In August 2003, Wawanesa confirmed receipt from Mr. Tam of: (1) an application for accident benefits (in which non-earner benefits were selected and the portions of the form related to caregiver and income replacement benefits were struck through); and (2) a disability certificate in which Dr. Wong certified that Mr. Tam suffered an impairment that prevented him from carrying on substantially all of his normal pre-accident activities.

If Wawanesa found the application that was submitted in August 2003 to be confusing or incomplete, it could have requested (pursuant to section 33 of the Schedule), additional information and/or a statutory declaration from Mr. Tam. If Wawanesa required Mr. Tam to submit an additional application specifically for the non-earner benefits that Wawanesa acknowledged Mr. Tam might be eligible to receive, pursuant to subsection 32(4) of the Schedule (as it then read), Wawanesa would have had to have supplied Mr. Tam with the additional application forms and then Mr. Tam would have had to submit those forms to Wawanesa within 30 days. There is no evidence that Wawanesa requested clarification of the application for accident benefits or that it provided to Mr. Tam additional application forms specifically for non-earner benefits.

Based upon the evidence before me, I am satisfied that, by filing his application for accident benefits and the disability certificate of Dr. Wong in August 2003, Mr. Tam notified Wawanesa of his intention to apply for non-earner benefits no later than the 30th day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable thereafter. Thus, I find that Mr. Tam complied with the requirements of section 32 of the Schedule and I reject Wawanesa’s argument that no application for non-earner benefits was received by it until January 2008.

Wawanesa relies upon the case of Garcia and State Farm Mutual Automobile Insurance Company¹⁰ in which it was determined that the Applicant could not “re-elect” to claim non-earner benefits several years after the accident when it was clear that he had been employed at the time of the accident (which would make him ineligible to claim non-earner benefits) and that, from the outset, he had consistently been pursing a claim for income replacement benefits. In addition to other reasons for finding that Mr. Garcia was not entitled to elect a non-earner benefit, Arbitrator Bayefsky wrote as follows (at p. 16):

Finally, in addition to the foregoing reasons, I find that Mr. Garcia is not entitled to elect non-earner benefits at this time because he failed, without reasonable explanation, to submit an application for the benefits within 30 days of receiving the application forms, contrary to section 32(3) of the Schedule. As noted above, there was no basis on which State Farm ought to have believed that Mr. Garcia might be entitled to non-earner benefits, and there is no evidence that Mr. Garcia’s long-standing pursuit of income replacement benefits was based on insufficient information or a misunderstanding of the requirements or implications of seeking IRBs over non-earner benefits. I, therefore, find that Mr. Garcia did not have a reasonable excuse for claiming non-earner benefits three years after the accident and three years after the time he received the application forms from State Farm. I agree with State Farm that, by virtue of his delay, the insurer has been prevented from properly assessing Mr. Garcia’s entitlement to non-earner benefits. I note that the tests of disability for IRBs and non-earner benefits would involve significantly different medical and functional assessments. I, therefore, find both that Mr. Garcia failed, without reasonable explanation, to claim non-earner benefits in a timely fashion and that this delay resulted in significant prejudice to State Farm’s ability to assess and respond to Mr. Garcia’s claim.

The facts in the case before me are distinguishable from those in the Garcia case. I have found as a fact that Mr. Tam did submit a completed application to Wawanesa for non-earner benefits within 30 days, as required by subsection 32(3) of the Schedule. It is true that, after Wawanesa’s written response of August 29, 2003 (which I have found to be a denial of Mr. Tam’s claim for non-earner benefits), Mr. Tam did little to pursue that claim. It also appears that Mr. Tam, through his counsel, further complicated matters by pursuing, for a time, a claim in court for income replacement benefits. Nevertheless, there is no evidence of any formal re-election of benefits and this is not a case in which the insurer is being surprised by a new claim that is only being advanced, for the first time, years after the fact. Thus, I am not persuaded that, as a result of his lack of diligence in pursuing his claim for non-earner benefits, Mr. Tam ought to be prevented from arguing the merits of his case.

In response to Mr. Tam’s Application for Accident Benefits in August 2003, supported by the disability certificate of Dr. Wong, on or about August 29, 2003, Wawanesa allegedly¹¹ supplied to Mr. Tam another blank disability certificate and requested that he have that form completed and submitted 26 weeks after the accident if he felt that he qualified for non-earner benefits at that time.

Section 34 of the Schedule, as it read at that time, provided as follows:

(1) An insurer may require a person who claims a … non-earner … benefit … to furnish a certificate from a health practitioner of the person’s choice as often as is reasonably necessary.

(2) The certificate shall state the cause and nature of the impairment and an estimate of the duration of the disability in respect of which the benefit is claimed.

(3) If an insurer requires a certificate, the person shall furnish the certificate within 21 days after receiving the insurer’s request.

(4) If the person fails to comply with subsection (3), no benefit is payable for the period more than 21 days after the person received the insurer’s request and before the person furnishes the certificate.

Mr. Tam did not provide a new disability certificate to support his claim for non-earner benefits until January 2008. Therefore, as an alternate argument, Wawanesa submits that no non-earner benefits are payable to Mr. Tam from 21 days after it requested the new disability certificate until it received the completed disability certificate in January 2008.

I reject this argument as well. Pursuant to section 34 of the Schedule, Wawanesa could request more than one disability certificate, but only as often as reasonably necessary. At the time it was requesting a new disability certificate, it had just received one from Dr. Wong. Also, pursuant to subsection 34(3), once Wawanesa supplied a new disability certificate form to Mr. Tam, he was required to have it completed and returned within 21 days. Wawanesa misled Mr. Tam when it advised him that he could have it completed and returned approximately five months later. If Wawanesa required a disability certificate to be submitted approximately 26 weeks after the accident, it would have had to supply the form to Mr. Tam approximately 23 weeks after the accident, not in August 2003.

If Wawanesa was taking the position that an insured person cannot apply for non-earner benefits until 26 weeks after an accident, I find no support for that position either in the provisions of the Schedule itself or in any cases presented by the parties. Although no non-earner benefits are payable for the first 26 weeks after the onset of a complete inability to carry on a normal life (which is not necessarily the same as 26 weeks after the accident), there is nothing in the Schedule that says that an insured person cannot apply for the benefits prior to the end of that 26 week period. I can understand why an insurer might want to have a medical opinion as to the condition of the person around the time that payment of the non-earner benefits might have to begin since the person’s condition may have improved or deteriorated since the time immediately following the accident. An insurer seeking such information, however, would have to obtain it in accordance with the provisions of the Schedule. In this case, Wawanesa’s failure to strictly comply with the correct procedures precludes it from relying upon the punitive sanctions provided by subsection 34(4) of the Schedule. There is also no evidence that the blank disability certificate in question was actually delivered by Wawanesa to the Applicant or his counsel.

Finally, with respect to Wawanesa’s arguments, both under section 32 and section 34, the case of Horvath and Allstate Insurance Company of Canada¹² stands for the proposition that an insurer cannot rely upon time limits set out within the Schedule (such as those imposed under s. 32(3)) in order to defeat claims unless the insurer can demonstrate that it provided to the insured person sufficient, accurate information about the relevant provisions of the Schedule and the consequences of failing to provide the requested information or documents within the time-frame required under the Schedule. According to the Supreme Court of Canada in Smith v. Co-operators,¹³ such basic information, in plain language, is required whether or not the insured person has a legal representative at the time. From the evidence before me, I am not satisfied that Wawanesa has established that it provided such information to Mr. Tam. This is a further reason why Wawanesa cannot rely strictly upon the limitation period established under section 32 or the exclusionary period provided in subsection 34(4) of the Schedule.

(ii) Applicant’s Arguments

The Applicant takes the position that Wawanesa ignored the application for non-earner benefits submitted in August 2003 and, simply as a result of this alleged breach of the provisions of the Schedule (and regardless of the merits of Mr. Tam’s claim), Wawanesa should be made to pay those benefits.

Under the Schedule as it now reads, when an insurer receives an application for a non-earner benefit, pursuant to section 35, the insurer must, within 10 business days after receipt of the application:

(1) pay the benefit;

(2) notify the insured person that the insurer requires additional information (under s. 33(1)) or that it requires the insured person to submit to an examination under oath (under s. 33(1.1)); or

(3) notify the insured person that he or she must submit to an insurer’s examination (under s. 42).

As the Schedule now reads, pursuant to section 37, if an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer shall request that the insured person submit a new disability certificate completed as of a date on or after the date of the request and the insurer may notify the insured person that the insurer requires the insured person to be examined under section 42.

Counsel for the Applicant submits that Wawanesa, upon receipt of Mr. Tam’s application in August 2003, did none of the above. The Applicant relies upon the case of Yogesvaran and State Farm Automobile Insurance Company¹⁴ as support for the proposition that if an insurer fails to properly terminate a benefit in accordance with the procedural requirements of section 37, the insurer is required to continue paying benefits until they are properly terminated. In that case, Arbitrator Miller found that State Farm failed to comply with the provisions of section 37 by failing to request a new (i.e. up-to-date) disability certificate before arranging a section 42 examination and, as such, State Farm was not entitled to terminate the benefits in question and was required to continue paying those benefits until they were properly terminated.

Assuming that Yogesvaran is correctly decided¹⁵, it is of little assistance in this case because both the applicable law and the facts are different. The case before me does not involve stoppage of benefits that were being paid by an insurer. Rather, it is a dispute over the initial decision about entitlement. Also, at the relevant time (August 2003), the provisions of the Schedule were quite different. The relevant portions of sections 35 and 37 read as follows:

35. (1) On receiving an application for … non-earner … benefit, an insurer shall promptly determine whether a benefit is payable.

(2) If the insurer determines that a benefit is payable, the insurer shall pay the benefit to the person within 14 days after receiving the application.

37. (1) If the insurer determines that a person is not entitled or is no longer entitled to receive a …non-earner … benefit, the insurer shall give the person notice of its determination, with reasons,

(a) within 14 days after receiving an application for the benefit.

Thus, it appears to me that, in August 2003, it was open to an insurer that received an application for non-earner benefits, if the insurer was satisfied that it had sufficient information, to simply deny the claim on the basis that it had determined that the insured person was not entitled to the benefit in question. The insurer, under section 33, was permitted to request additional information but was not required to request such information or conduct any examination or assessment prior to the denial.

Where an insurer wished to terminate benefits that it had been paying, a different process existed under section 37. This process included the right of an insured person, before stoppage, to insist upon a DAC assessment. Those provisions do not apply in this case as Wawanesa never paid non-earner benefits to Mr. Tam.

While none of the documents that were exchanged by the parties in August 2003 were completely free of ambiguity, I am satisfied that it has been proven on a balance of probabilities that in August 2003 the Applicant submitted a claim for non-earner benefits and that Wawanesa denied this claim, as it was permitted to do under paragraph 37(1)(a) of the Schedule (as it then read). The letter from Ms. Eng seemed to suggest that the application was premature but the timing of the application was not the only basis for Wawanesa’s denial. It appears that the claim was also denied based upon Wawanesa’s determination that Mr. Tam had not suffered the requisite level of disability. The Explanation of Benefits form (OCF-9) states that Mr. Tam was not eligible for non-earner benefits because “To qualify there must be a complete inability to carry on a normal life.”

Ms. Eng did not testify before me and her notes were not produced. I can only go by what is contained in her letters and the other documents from Wawanesa that have been filed. Perhaps Ms. Eng felt that Mr. Tam did not qualify for non-earner benefits in August 2003 because he was a student who had returned to his studies or because Dr. Wong, in the disability certificate, indicated that Mr. Tam was only restricted with respect to a limited number of physically-demanding tasks. Whether Wawanesa’s decision to deny this claim was correct or not, it was a denial. The fact that Wawanesa allegedly provided Mr. Tam with an additional blank disability certificate for use at some point in the future, if and when he wished to renew his claim, did not alter the fact that his initial claim for non-earner benefits was being denied.

In short, having considered the facts of this case and the provisions of the Schedule as they read at the relevant time, I find that there is nothing in the way in which the Applicant’s claim was handled by Wawanesa that would automatically entitle him to non-earner benefits without regard to whether he actually meets the disability test set out in the Schedule.

Since the “technical arguments” advanced by both parties have been rejected, I shall now proceed to deal with the actual merits of Mr. Tam’s claim for non-earner benefits.

Merits

The first step in this analysis is to assess Mr. Tam’s activities and life circumstances over a reasonable period of time prior to the accident and then to compare those to his activities and circumstances after the accident. In some ways, Mr. Tam was in a transitional period of his life at the time this accident occurred. In or about March 2002, he abandoned his career as a pharmacist in Massachusetts and moved back in with his parents in Toronto. He testified that he wanted to be in Toronto in order to assist his aging parents and ailing grandmother. He was also having professional difficulties in Massachusetts. Whatever his true motivation, Mr. Tam had clearly decided by the spring of 2002 that he was going to be staying in Toronto for the foreseeable future. He gave up his home and job in Massachusetts, took his English proficiency exam at Seneca College and then enrolled in a one-year program there (scheduled to end in August 2003). Eventually, Mr. Tam surrendered his licence to practice as a pharmacist in Massachusetts. His stated intention was, upon graduation from Seneca, to seek a job here in the drug industry (but not as a pharmacist). I therefore find that a reasonable period of time to consider, when examining Mr. Tam’s pre-accident activities and life circumstances, is the period from March 2002 until July 20, 2003 (the day before the accident).

During this period, Mr. Tam lived primarily in the home of his parents, although he frequently visited his grandmother at her nearby condominium and, occasionally, stayed over at her place.

In 2002, Mr. Tam’s grandmother was approximately 85 years old. She had been diagnosed with lymphoma and had other serious medical conditions. Mr. Tam was emotionally very close to his grandmother. He wanted to assist her and his parents, who were also seniors. He helped his grandmother by going with her to some of her medical appointments, by helping to clean her condominium unit, by taking out the garbage, by watering her plants and by doing grocery shopping for her. On average, he spent 7 – 10 hours per week assisting his grandmother.

At his parent’s house, to assist his parents, Mr. Tam states that he did practically all of the housekeeping and home maintenance. He performed such tasks as: cutting the grass, shovelling the snow, doing his share of the dishes, doing some of the laundry, scrubbing the ceramic floor tiles (every 2 to 3 months), waxing the hardwood flooring (every 6 months), cleaning the four bathrooms, vacuuming the carpeting, and doing about one-half of the grocery shopping.

Once his courses commenced at Seneca College, much of his time was devoted to his studies.

In terms of his social activities, although Mr. Tam had a girlfriend who remained behind in Massachusetts, he was finding it difficult to maintain a long-distance relationship. Initially, they spoke to each other on the telephone often but the frequency of those conversations began to decline over time. He was only able to see his girlfriend three or four times per year and the frequency of those visits also declined over time.

He played video games with friends quite often. During this period, he went with friends to restaurants (for instance, after a softball game), clubs (at least ten times) and movies (every other month or so) and would go shopping for clothing in malls. Sometime in 2002, Mr. Tam began to use cocaine sporadically.

Although he had been quite active in sports in the past, he was not that active in sports when he returned to Toronto in March 2002. He would work out (swim and use exercise equipment) maybe four times per week at the facilities at his grandmother’s condominium but only rarely played tennis, basketball or other sports (as he had in the past). In April 2003, Mr. Tam joined a softball team but fractured his right ankle during a game in May 2003 and did not play again thereafter.

After the accident, Mr. Tam continued to live with his parents. He continued to do much of the housekeeping and home maintenance, although he stopped doing some tasks (such as scrubbing the floor tiles on his hands and knees) and has had to do some pacing or modification in order to accomplish other tasks. Video surveillance taken in April 2005 clearly shows Mr. Tam removing groceries and packages from a car, bending at the waist, carrying several bags at a time, carrying a box, making several trips between the house and the car (jogging at times) and showing no apparent discomfort or restriction in range of motion.

Mr. Tam continued to drive after the accident.

Mr. Tam continued to visit and assist his grandmother, but perhaps only half as often as before the accident.

In the first two years after the accident, Mr. Tam had little social life. He described himself as withdrawn and depressed. His relationship with his girlfriend ended. He abused cocaine and started “speedballing” (using cocaine at the same time as narcotics) which resulted in his having to go to the hospital and be enrolled in a “detox program” (in the summer of 2004). He says that, around 18-24 months after the accident, he started to lose interest in everything and began to stay in bed all day. He would decline invitations to go out with friends. He stopped going to movies. He stopped going to malls. He rarely got together with friends to play video games. He did not go out to restaurants as often as before.

He still tried to swim a bit but, otherwise, was not involved in athletic activities.

Mr. Tam states that these changes in lifestyle were due to his low back pain (which made it uncomfortable to sit or stand for prolonged periods) and his fear of engaging in activities that might trigger this pain. He has also concluded that he was suffering from depression although he did not realize it at that time.

Mr. Tam did not have any functional assessments performed during this period (i.e., during the first 104 weeks following the accident). Other than the disability certificate from Dr. Wong in August 2003, there is no medical opinion obtained during this period stating that Mr. Tam was unable to engage in substantially all of his normal pre-accident activities. There is no medical evidence that the level of disability noted by Dr. Wong approximately one month after the accident continued without interruption thereafter. Dr. Wong did not testify before me. The medical experts who did testify on behalf of Mr. Tam (Dr. Rod and Dr. Lau) did not address the issue of Mr. Tam’s activities and functional abilities during this period.

Thus, with respect to his functional abilities during the first 104 weeks following the accident, Mr. Tam relies upon his own testimony and on what, according to the available records, Mr. Tam reported to various medical professionals at the relevant time. There is no corroboration from friends or relatives and no independent medical assessment of his functional abilities (other than the assessments conducted on behalf of Wawanesa, referred to below). It appears that Wawanesa did not specifically have Mr. Tam assessed with respect to the issue of non-earner benefits because it was unaware that he was continuing to pursue such a claim after August 2003 (at least, that is, until January 2008).

The theory that has been advanced on behalf of Mr. Tam is that he has suffered a complete inability to carry on a normal life and that this is primarily as a result of his chronic pain. In a case such as this, according to the Ontario Court of Appeal, the question becomes, “Has Mr. Tam proven that the degree of pain he experienced as a result of the accident was such that, starting some time in the first two years after the accident, it has practically and continuously prevented him from engaging in substantially all of his pre-accident activities?”

The pain did not prevent Mr. Tam from continuing his education. Shortly after the accident, Mr. Tam was able to return to school. He was able to complete his education at Seneca College. He wrote (and did well on) his final exams.

According to the Court of Appeal, in assessing an applicant’s functional abilities, it is appropriate to give greater weight to activities that an applicant identifies as being important to his or her pre-accident life. Based upon Mr. Tam’s testimony, the most important activities in his pre-accident life involved assisting his parents and grandmother. He assisted them in housekeeping and home maintenance, in grocery shopping and in transportation. Mr. Tam’s stated reason for returning to Toronto in 2002 was to assist his aging parents and his ailing grandmother. He gave up a lucrative career in Massachusetts and left his home and his girlfriend to accomplish this. The evidence clearly shows that, after the accident, he was still able to meaningfully engage in (and did engage in) most activities necessary to assist his parents and his grandmother with housekeeping, home maintenance and transportation.

Mr. Tam testified that the treatment he received, together with the medication, allowed him to continue functioning. Dr. Rod agreed that the medication he prescribed to Mr. Tam gave Mr. Tam sufficient pain relief to allow for an improved level of function (although the dosages prescribed had to be increased over time in order to maintain a reasonable level of function).

In September 2003, Wawanesa arranged for an in-home assessment of Mr. Tam by an occupational therapist. Mr. Tam complained of constant low back pain, rated 3 on the scale of 0‑10 (10 being the most pain). He also complained of occasional discomfort in his right leg, especially on prolonged sitting. Mr. Tam demonstrated an adequate range of motion, strength and tolerance to perform his self-care and household duties. He reported being independent and able to perform his pre-accident self-care and household duties. He stated that he was able to drive.

During a medical and rehabilitation DAC assessment in January 2004, Mr. Tam again stated that he was independent with driving and his activities of daily living. He stated that he was able to perform most of his usual household chores but did not perform the heavier tasks such as snow shovelling. He reported constant low back pain (which had improved in intensity since the accident) and intermittent minor stiffness in his neck.¹⁶

In July 2004, Dr. Dana Wilson (orthopaedic surgeon) prepared a report for Mr. Tam. In it, Dr. Wilson states that Mr. Tam had experienced significant improvement in his symptoms since the accident. The only restrictions noted were that Mr. Tam might have difficulty with more “physically challenging activities” and that Mr. Tam reported that he had not returned to his pre-accident recreational sports. Dr. Wilson recommended an ongoing exercise program to strengthen the muscles of Mr. Tam’s lower back.

Mr. Tam reported that he became depressed and withdrawn around one and half years after the accident. I note that this is approximately the time that his grandmother passed away (February 2005). Mr. Tam reported being very close to his grandmother and his demeanour during this part of his testimony reflected his great sadness at this loss. The clinical notes and records of Dr. Rod around this time (March 2005) also reflect Mr. Tam’s deteriorating emotional state. Mr. Tam was not referred for a psychological assessment, however, until several years later (late 2007).

I appreciate that Mr. Tam feels that, as a result of the 2003 accident, the course of his life has been dramatically altered. He suffers from chronic pain (for which he continues to be prescribed Oxycontin) and some level of depression and anxiety. Since graduating from Seneca College in the summer of 2003, he has not been employed and his athletic and social activities have been curtailed.

Nevertheless, during the first two years following the accident of July 21, 2003, Mr. Tam could and did meaningfully engage in many of his pre-accident activities, including those that were most important to him. When asked during the hearing if, other than such things as snow shovelling, scrubbing the floors and competitive sports, there was anything that he used to do before the accident that he was incapable of doing two years after the accident, his answer was “No”. It is clear that, at some point following the accident, Mr. Tam lost interest in social activities; he has failed to prove, however, that any impairment he suffered as a result of the accident continuously prevented him from engaging in such activities. Similarly, Mr. Tam has failed to adduce evidence to adequately explain why he has not furthered his education or sought some form of employment.

Although Dr. Rod prepared a disability certificate in late 2007 in which he opined that Mr. Tam did then meet the test for non-earner benefits, Dr. Rod has not stated that that this has continuously been the case since some time commencing within 104 weeks of the accident. Also, in coming to this conclusion, Dr. Rod relies almost entirely upon what he has been told by Mr. Tam; Dr. Rod has not observed Mr. Tam at home or in the community and has not conducted his own functional evaluation of Mr. Tam.

Although there is evidence that Mr. Tam developed some psychological impairment as a result of the accident, the relevant psychological assessments were not conducted until in or after 2007 and the medical practitioners involved (such as Dr. Lau) are not in a position to give an opinion as to Mr. Tam’s psychological condition and/or cognitive abilities prior to 2007.

In conclusion, Mr. Tam has failed to prove, on a balance of probabilities, that he suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and his claim for non-earner benefits must be dismissed.

Special Award

Pursuant to subsection 282(10) of the Insurance Act, the Applicant has claimed a special award against Wawanesa based upon its alleged unreasonable denial of his claim for non-earner benefits and for reimbursement for the cost of prescription medication.

Since the Applicant was unsuccessful in his claim for non-earner benefits, there can be no special award granted with respect to Wawanesa’s denial of this claim.

With respect to the drug expenses, the claim for a special award is related to the manner in which these claims were denied (i.e., Wawanesa’s reliance upon Dr. Platnick’s report). It was alleged that Dr. Platnick’s report was not obtained in accordance with the provisions of the Schedule and/or that there is no evidence that Mr. Tam explicitly authorized the release of his personal information to Dr. Platnick.

Since the Applicant failed to raise these issues prior to the cross-examination of Dr. Platnick (i.e., towards the end of this hearing)¹⁷, the Insurer was not aware that this was an issue and it did not produce any records from Seiden Health Management Inc. or relevant correspondence or other documents that might have shed more light on this issue. I am not satisfied that the Applicant could accurately recall any details about what procedures were or were not followed since he left such matters to his former solicitors. He did not call his former solicitors to testify on this matter nor did he produce any records related to this issue. Also, counsel for the Applicant did not make clear exactly which provisions of which version of the Schedule were allegedly breached by Wawanesa.

As I indicated earlier in this decision, there is simply insufficient evidence before me to reach a conclusion on this matter. Although I have found that Wawanesa was wrong to refuse to pay for much of the medication in question, I am not persuaded that the Applicant has proven that Wawanesa’s denial of these claims was unreasonable.

For these reasons, no special award shall be granted.

EXPENSES:

At the conclusion of the hearing, the parties asked that I defer the issue of entitlement to expenses of this arbitration. If the parties cannot agree on the issue of entitlement or amount, they may make submissions on both issues in accordance with Rule 79 of the Code.

May 20, 2010

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 65

FSCO A07-002163

BETWEEN:

KEVIN TAM 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:

1. The Insurer shall pay to the Applicant $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.

2. Pursuant to section 46(2) of the Schedule, the Insurer shall also pay to the Applicant interest for the overdue payment of the cost of the prescription medication set out above.

3. Subject to paragraph 4 below, all other claims by the Applicant are dismissed.

4. If the parties cannot agree on the issue of entitlement or amount of expenses of this arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code.

May 20, 2010

Richard Feldman Arbitrator

Date

APPENDIX A

Drug Expenses (November 17, 2003 – April 2, 2007)

DATE OF PRESCRIPTION	DRUG	AMOUNT CLAIMED ($)	DENIED BY OCF-9 DATED
Nov. 17, 2003	Oxycocet	16.61	Sept. 20, 2004
Nov. 27, 2003	Oxycontin	153.51	Dec. 22, 2003
Dec. 22, 2003	Oxycocet	16.61
Dec. 22, 2003	Oxycontin	153.51
Jan. 19, 2004	Oxycontin	153.82	Feb. 11, 2004
Feb. 11, 2004	Baclofen	$39.40
Feb. 11, 2004	Oxycontin	153.82
Mar. 8, 2004	Oxycocet	$12.16
Mar. 8, 2004	Oxycontin	153.82
April 7, 2004	Oxycontin	226.24
April 2, 2004	Oxycontin	153.51
April 2, 2004	Oxycocet	16.61
April 26, 2004	Oxycontin	274.95
May 4, 2004	Dilaudid	33.17
May 4, 2004	Oxycontin	226.24
May 20, 2004	Oxycontin	274.95
June 2, 2004	Trazodone	16.70
June 2, 2004	Oxycontin	80.65
June 8, 2004	Hydromorphcontin	72.09
June 15, 2004	Hydromorphcontin	171.45
June 16, 2004	Cialis	63.35
June 22, 2004	Oxycontin	407.43
June 25, 2004	Trazodone	16.70
June 25, 2004	Cialis	63.35
July 20, 2004	Oxycontin	390.15
Sept. 9, 2004	Oxycontin 80mg	770.31	Oct. 5, 2005 July 21, 2006
Oct. 27, 2004	Oxycontin 80mg	812.13
Dec. 17, 2004	Oxycontin 80mg	812.13
Feb. 11, 2005	Oxycontin 80mg	812.13
April 6, 2005	Oxycontin 80mg	678.44
May 5, 2005	Oxycontin 80mg	678.44
May 31, 2005	Oxycontin 80mg	696.49
June 29, 2005	Oxycontin 80mg	696.49
July 28, 2005	Oxycontin 80mg	696.49
Aug. 15, 2005	Oxycontin 80mg	390.15
Aug. 26, 2005	Oxycontin 80mg	696.49
Sept. 21, 2005	Oxycontin 80mg	696.49
Oct. 17, 2005	Oxycontin 80mg	696.49
Nov. 12, 2005	Oxycontin 80mg	696.49
Dec. 12, 2005	Oxycontin 80mg	696.49
Jan. 7, 2006	Oxycontin 80mg	696.49
Feb. 8, 2006	Oxycontin 80mg	696.49
March 6, 2006	Oxycontin 80mg	696.49
April 3, 2006	Oxycontin 80mg	696.49
April 3, 2006	Baclofen	49.45
May 3, 2006	Oxycontin 80mg	706.79
May 29, 2006	Oxycontin 80mg	706.79
June 21, 2006	Baclofen	29.72	Aug. 24, 2006
June 28, 2006	Oxycontin 80mg	706.79
July 26, 2006	Oxycontin 80mg	706.79	May 7, 2007
Aug. 9, 2006	Baclofen	29.72
Aug. 21, 2006	Oxycontin 80mg	706.79
Sept. 14, 2006	Baclofen	29.72
Sept. 20, 2006	Oxycontin 80mg	706.79
Oct. 16, 2006	Oxycontin 80mg	706.79
Nov. 12, 2006	Oxycontin 80mg	706.79
Dec. 12, 2006	Oxycontin 80mg	706.79
Dec. 30, 2006	Baclofen	29.72
Jan. 8, 2007	Oxycontin 80mg	706.79
Feb. 7, 2007	Oxycontin 80mg	706.79
Feb. 23, 2007	Gabapentin	26.62
March 6, 2007	Oxycontin 80mg	706.79
March 18, 2007	Baclofen	29.72
April 2, 2007	Oxycontin 80mg	706.79
TOTAL		$26,065.35

APPENDIX B

Prescribed Daily Oxycontin Dosages (September 2003 - Present)

DOSAGE PRESCRIBED	MAXIMUM PRESCRIBED DAILY DOSAGE	STARTING
10 mg 2 times/day	20 mg	September 2003
20 mg 2 times/day	40 mg	October 2003
40 mg 2 times/day	80 mg	November 2003
40 mg 2 times/day + 40 mg as needed (up to twice daily)	80-160 mg	December 2003
80 mg 3 time/day + 40 mg as needed (up to twice daily)	240-320 mg	December 2004
80 mg 5 times/day	400 mg	March 2005
80 mg 5 times/day + 40 mg as needed (up to once daily)	400-440 mg	June 2005
80 mg 5 times/day + 40 mg as needed (up to twice daily)	400-480 mg	October 2005
80 mg 6 times/day + 40 mg as needed (up to thrice daily)	480-600 mg	October 2007

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2It was alleged that he had altered a Percocet prescription given to him by a dentist (following dental surgery) to read 80 pills instead of 8. Mr. Tam denied this allegation. The matter was never adjudicated, however, as Mr. Tam chose in May 2003 to voluntarily surrender his licence to practice as a pharmacist in Massachusetts.
3. 3Mostly A’s, with the lowest mark being a B.
4. 4The surveillance evidence from Mastromarco was obtained during the summer of 2008. There was no objection to the surveillance evidence of Centura Investigation Agency (taken in April 2005).
5. 5This information has been gathered from the OCF-9 Forms filed by the Insurer.
6. 6Although there is evidence that Mr. Tam continued to submit claims for such expenses beyond April 2, 2007, since there was no request to amend the Application to include any such expenses, I am restricting this decision to the period ending April 2, 2007.
7. 7This summary was prepared by me based upon the testimony of Dr. Rod and a review of his clinical notes and records.
8. 82009 CarswellOnt 2443, 2009 ONCA 391, 73 C.C.L.I. (4th) 31, [2009] I.L.R. 1-4838, 249 O.A.C. 164, 95 O.R. (3d) 785.
9. 9Which can be found at Tab 2 to the Written Motion Submissions of the Insurer.
10. 10(FSCO A06-002625, March 7, 2008)
11. 11Wawanesa filed a letter that was purportedly sent to Mr. Tam in August 2003 and which purportedly enclosed a blank disability certificate. There was no evidence actually adduced by Wawanesa to prove delivery of this letter or to confirm that the blank disability certificate was actually enclosed. For now, however, I will work on the assumption that the letter was delivered to Mr. Tam and/or his representatives and that it did contain the form in question.
12. 12(FSCO A02-000482, June 9, 2003)
13. 132002 SCC 30, [2002] S.C.J. No. 34
14. 14(FSCO A08-001142, November 26, 2009)
15. 15This decision is currently under appeal.
16. 16Note that Mr. Tam had complained of neck pain and headaches and had an x-ray taken of his cervical spine in May 2002 (i.e., a little more than one year prior to the July 2003 accident).
17. 17Prior to the cross-examination of Dr. Platnick, the Applicant never indicated that he would be seeking a special award.