Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 138

FSCO A09-001311

BETWEEN:

SEAN MOUGAN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: May 30 and 31, June 2, November 14-17, 2011, January 18, 20, 23 and 26, February 16 and March 26, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Michael Yermus and Paul Gribilis for Mr. Mougan Darrell March for Allstate Insurance Company of Canada

Issues:

The Applicant, Sean Mougan, was injured in a motor vehicle accident on March 10, 2006. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ However, Allstate denied certain of Mr. Mougan’s claims. The parties were unable to resolve these issues through mediation, and Mr. Mougan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Mougan entitled to receive income replacement benefits, from August 7, 2008, onward, at a rate of $351.86 per week?

2. Is Mr. Mougan entitled to attendant care benefits, from March 10, 2006 to July 31, 2007, at a rate of $776.06 per month, and from August 1, 2007 to March 10, 2008, at a rate of $112.62 per month?

3. Is Mr. Mougan entitled to payments for housekeeping and home maintenance services, from March 10, 2006 to March 10, 2008, at a rate of $100 per week, less amounts paid?

4. Is Mr. Mougan entitled to receive a medical benefit for the following treatment plans?

a) September 7, 2007, for assistive devices, recommended by Dr. J. Sole, in the amount of $1,054.54

b) January 31, 2008, for treatment recommended by Dr. N. Raffi, in the amount of $2,563.72.

5. Is Mr. Mougan entitled to payments for the cost of the following examinations?

a) a driver evaluation, recommended by Dr. M. Mandel on January 26, 2007, in the amount of $1,366.34

b) an orthopaedic assessment, recommended by Dr. M. Indech on January 29, 2007, in the amount of $1,790.04

c) an in-home and attendant care needs assessment, recommended by Dr. J. Sole on June 7, 2007, in the amount of $1,205.46.

6. Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mougan?

7. Is Mr. Mougan entitled to interest for the overdue payment of benefits?

8. Is either party liable to pay the other its expenses in respect of the arbitration?

Result:

1. Allstate shall pay to Mr. Mougan income replacement benefits, from August 7, 2008, onward, at a rate of $351.86 per week.

2. Allstate shall pay to Mr. Mougan attendant care benefits, from March 10, 2006 to August 10, 2006, at a rate of $776.06 per month, and from August 11, 2006 to March 10, 2008, at a rate of $112.62 per month.

3. Allstate shall pay to Mr. Mougan housekeeping and home maintenance benefits, from March 10, 2006 to August 10, 2006, at a rate of $100 per week, and from August 11, 2006 to March 10, 2008, at a rate of $20 per week, less amounts already paid.

4. Allstate shall pay to Mr. Mougan the following medical benefits:

(a) the cost of assistive devices, as recommended by Dr. Sole, in the amount of $438.65

(b) the cost of a spinal decompression, as recommended by Dr. Raffi, in the amount of $2,563.72.

5. Allstate shall pay to Mr. Mougan the cost of the following examinations:

(a) a driver evaluation, as recommended by Dr. Mandel, in the amount of $1,366.34

(b) an orthopaedic assessment, as recommended by Dr. Indech, in the amount of $1,790.04

(c) an in-home and attendant care needs assessment, as recommended by Dr. Sole, in the amount of $1,205.46.

6. Allstate shall pay to Mr. Mougan a special award, in an amount to be determined.

7. Allstate shall pay to Mr. Mougan interest on the benefits ordered to be paid.

8. If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

(i) The Accident and Injuries

Mr. Mougan was involved in a motor vehicle accident on March 10, 2006. His car was written off. As a result of the accident, he experienced pain in his head, neck, shoulders, chest, low back, buttocks and left leg. He was taken by ambulance to a hospital, where he was treated and released later that night, with prescriptions for pain medication. Mr. Mougan testified that his pain worsened in the next few days, and therefore went to a chiropractic clinic approximately 4-5 days after the accident for treatment. The chiropractor at the clinic, Dr. H. Nayeri, treated him, and then referred him to Dr. S. Lakhani, a retired family physician with a designation in pain management.

On May 24, 2006, Dr. G. Challis, a psychologist who saw Mr. Mougan at the request of the Insurer, reported that Mr. Mougan presented with “notable depressive symptomatology evidencing apathy, anhedonia and amotivation”, that these symptoms were “directly associated to the occurrence of the motor vehicle accident” and that they “represent[ed] a substantial inability with respect to his capacity to engage in the essential tasks of his pre-accident employment.”

On June 2, 2006, Mr. Mougan underwent a CT scan of his cervical and lumbar spine, which showed a mild diffuse disc bulge at C5-C6, a central disc herniation and moderate anterior thecal sac compression at L4-L5, and a significant disc herniation, moderate thecal sac compression and disc degeneration at L5-S1.

On January 10, 2007, Dr. M. Mandel, a psychologist who assessed Mr. Mougan, reported that Mr. Mougan “developed difficulties which meet the [DSM-IV] criteria for Pain Disorder Associated with both Psychological Factors and a General Medical Condition and Adjustment Disorder with Mixed Anxiety and Depressed Mood.” Dr. Mandel recommended an initial course of 10-12 sessions of cognitive behavioural and supportive psychotherapy to address Mr. Mougan’s “depressive and anxiety symptoms and difficulty coping with…pain and inactivity.”

On August 9, 2007, Dr. K. Grant, an orthopaedic surgeon who saw Mr. Mougan on the recommendation of Dr. Lakhani, reported that Mr. Mougan had degenerative disc disease at L4-L5 and L5-S1, and a “component to chronic muscle strain as well as to pain syndrome.” Mr. Mougan stated that Dr. Grant recommended back surgery, but that he chose to undergo non-surgical treatment.

On August 16, 2007, Dr. R. Gladstone, a neurologist who assessed Mr. Mougan at the request of his counsel, found that Mr. Mougan suffered a number of injuries “directly related to his accident that have contributed to his current circumstances, the most outstanding of which is the continuing low back pain and discomfort.” Dr. Gladstone noted that Mr. Mougan had a disc herniation and thecal sac decompression, as a result of which he required an “urgent referral to an orthopedic or neurosurgeon to decompress his lumbosacral discs….”

On September 15, 2007, Mr. Mougan underwent an MRI of his lumber spine, which showed mild degenerative changes at L4-L5 and L5-S1, a small left-side disc bulge at the L4-L5 level, a small central disc herniation at the L5-S1 level and mild degenerative changes at the T12-L1 level. Mr. Mougan underwent a further MRI on September 20, 2010, which indicated mild to moderate degenerative changes at the L4-L5 and L5-S1 levels that had “progressed slightly” since 2007. Mild to moderate degenerative changes at the lower two thoracic levels were also noted, as well as a mild left-sided disc bulge at the L1-L2 level, a disc bulge and central annular tear at the L4-L5 level, a disc bulge and tiny central disc herniation at the L5-S1 level, and mild narrowing of the intervertebral foramina at the L4-L5 and L5-S1 levels.

Mr. Mougan stated that Dr. Lakhani began to give him nerve block injections every two weeks in approximately 2008, which have continued to this day. He stated that, before he started seeing Dr. Lakhani, his pain was 9 out of 10, and that with the injections, his pain was approximately 4 out of 10. Mr. Mougan states that his low back is always stiff and painful, and that he gets significant headaches twice a week. He said that he has constant pain, which is 4 or 5 out of 10 after he receives his injections, but otherwise is 9 or 10 out of 10. Mr. Mougan also said that Dr. Lakhani prescribed anti-depressant medication, from approximately 2008. Mr. Mougan said that his memory is very bad since the accident, and that his wife sometimes has to tell him the same thing three times. Mr. Mougan stated that he has to take sleeping pills, because he sleeps very sporadically and can sometimes be up for two days straight. Mr. Mougan said that he went to Scarborough Physiotherapy for work-strengthening, but that his pain was worse after the treatments and that he sometimes skipped a week there because he was too sore to attend. His treatment there ended in March 2009.

Dr. Lakhani’s notes indicate that, in June 2006, he began to give Mr. Mougan nerve block injections to control his pain. Dr. Lakhani said that he sees Mr. Mougan approximately once every two weeks for injections, depending on how Mr. Mougan feels. He also prescribed muscle relaxants. Dr. Lakhani said there was nothing to suggest that Mr. Mougan’s injury to his neck and back existed before the accident. Dr. Lakhani testified that Mr. Mougan’s pain improved with the injections, that it then plateaued, and that the concern was to ensure that his condition did not deteriorate. Dr. Lakhani testified that his treatment of Mr. Mougan relieved his pain for about a week at a time. Dr. Lakhani also prescribed anti-depression medication and sleeping pills for the emotional, pain and sleep difficulties Mr. Mougan was experiencing as a result of the accident. Dr. Lakhani said that Mr. Mougan suffered from chronic pain syndrome, and that he did not think any other type of treatment would help him, noting that the insurance company had denied his request for chiropractic treatment, he had declined surgery, and the psychological treatment was not helpful. Dr. Lakhani noted that approximately two years following the accident, Mr. Mougan suffered occasional sciatica, and that this became a constant problem towards the end of 2009. Dr. Lakhani acknowledged his clinical note of January 17, 2012, that Mr. Mougan’s pain had improved 70-80%, but stated that this was because Mr. Mougan was not active at the time. Dr. Lakhani stated that, although Mr. Mougan received temporary relief from his treatments, he could not return to work given his specific condition.

On February 2, 2009, Dr. M. Saghatoleslami, a psychologist who assessed Mr. Mougan at the request of the Insurer, reported that Mr. Mougan’s presentation and clinical impressions, as well as the interpretation of psychometric measures, suggested that Mr. Mougan was experiencing “adjustment difficulties that largely manifest as low mood, somatic pain symptoms and anxiety about his health and finances”, that he met the criteria of an Adjustment Disorder with Mixed Anxiety and Depressed Mood”, and that he would benefit from “continuing to participate in psychological treatment with…[Dr.] Mandel…in order to address his purported emotional symptoms and somatic pain concerns and to facilitate reinvestment in his previous lifestyle.”

(ii) Mr. Mougan’s Pre-Accident Education, Employment and Medical History

Mr. Mougan completed high school and then graduated from a three-year programme at George Brown College in 1998, taking mechanical courses and courses for glass and aluminum work. He testified that he had dyslexia and that he needed to overcome this in order to complete his education. He stated that he worked in warehouses during high school, picking orders using forklift trucks and other equipment. After he completed college, he did a number of years of seasonal work, building residential decks and fences. He then worked as a “glazier”, installing glass on commercial construction sites, which involved climbing ladders, carrying heavy panes of glass, carrying tools and working on scaffolds. He did courses to upgrade his status as a glazier, but was unable to write the required examination because of the accident.

Mr. Mougan testified that he was very active before the accident, playing hockey, rock-climbing, scuba-diving, parachuting and bungee-jumping. However, he testified that he suffered a number of injuries as a result of these activities. In 1987, he was hit by a chairlift. In 1989, he suffered a separated right shoulder playing hockey, which required 6 months to recover, and in 1991, he suffered a broken left clavicle, which also took 6 months to recover. In 1997, he suffered neck and low back pain after being hit into the boards playing hockey, which resolved after about two weeks.

Mr. Mougan also suffered certain work-related injuries. In 1991, he strained his back after lifting some boxes, and needed to be off of work for a couple of days. He twisted his ankle in 1992, and was off of work for two weeks. He suffered back pain and spasm for two days in 1998. In 1999, he injured his wrist at work, and had a cast on for five to six weeks, after which he returned to work.

Mr. Mougan suffered damage to the cartilage in his knees in 1999 and 2002, for which he underwent arthroscopies. He stated that after the 2002 surgery, he was off work for approximately 18 months, returning to work in 2004.

Mr. Mougan also testified that, in 1992, he suffered a “whiplash-type” injury in a minor car accident, where he just experienced some stiffness in his back.

Finally, in 2004, Mr. Mougan underwent approximately 10 sessions of therapy for depression, after he discovered that his partner at the time was having an affair.

Mr. Mougan maintained that he was in good health, active and working at the time of the accident.

1) Mr. Mougan’s Claim for Income Replacement Benefits

Pursuant to section 5(2)(b) of the Schedule, an insurer is not required to pay an income replacement benefit for any period longer than 104 weeks of disability, unless as a result of the accident, the insured person suffers a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

Mr. Mougan maintains that he has been significantly disabled by the accident and is incapable of returning either to his pre-accident work or a reasonably suitable alternative. He submits that he has made reasonable attempts to return to work, but without success, due to the nature of the work available and his accident-related impairments. The Insurer argues that Mr. Mougan does not, as a result of the accident, suffer a complete inability to return to suitable employment. The Insurer maintains that neither the medical evidence, nor Mr. Mougan’s own evidence (which, it is alleged, lacks credibility), establish the requisite degree of disability. The Insurer also maintains that Mr. Mougan is disentitled to income replacement benefits pursuant to section 55 of the Schedule, by virtue of his failure to participate in rehabilitation.

(i) Mr. Mougan’s Evidence

Mr. Mougan testified that he could not return to his work as a glazier after the accident, due to the heavy nature of the job. He stated, however, that he wants to go back to work and has attempted to do so. He said he helped drive a truck for a friend who was building fences in approximately the summer of 2008. In the fall of 2009, he used a truck to help another friend pick up wood posts for a flower bed, but did not actually load or unload the posts. He also, at some point, helped a friend once or twice to get insulation for his basement, but rather than lift the bags of insulation, he just opened the tailgate and pushed the bags into the garage. Mr. Mougan said that, between 2007 and 2009, he used a wheelbarrow 3-4 times to help his parents and a friend move some materials to their homes. He said he lifted the wheelbarrow at these times, but that it was not very heavy.

He said that, in 2009, a friend hired him to operate the lights at a dance club in downtown Toronto, and that he did that two times a month. He said that his friend paid him for about half the time he was there, depending on whether it had been a good night. He has worked there recently and expects to be paid for that work. He said that if he was offered more hours there, and could handle it, he would do this. He continues to work there, but with fewer shifts. He states that he helps with the lights, and also deliveries of alcohol and music equipment. He states that he picks up cases of alcohol from the LCBO and delivers them to the club, but that the cases are loaded and unloaded by others.

Mr. Mougan testified that another friend hired him as a glazier in late 2009 at a company called Green Island Irrigation, but that he only lasted about five to six weeks, due to his pain. He said that, about half of the time, he would arrive late for work, due to his sleep problems, that he would sometimes leave early because of his pain, and that he missed approximately five to six days of work.

Mr. Mougan said that he had the opportunity to obtain a job through a friend’s uncle at the Rolex watch company as a watch repair person in late 2008, and would have taken it if it had not been offered to someone else. Mr. Mougan said that he spoke to his friend’s uncle between 2008 and 2011 to see if there were any other openings, but there were none. He said that he has spoken to a few friends about jobs, but that they are all hard, lifting jobs. Mr. Mougan testified that he has never held an office job, has no computer skills, and that his son has had to help him with the internet. He said that he has looked on some websites for jobs, but that they often require computer and writing skills, and that he cannot do these because of his dyslexia. He said that he discovered that work in real estate would be too hard for him, since it involved a lot of computer work, which he cannot do.

Mr. Mougan testified that, after the accident, he was able to do public skating, which, he said, was almost the same as his treatment at Scarborough Physiotherapy. He said he also played non-contact, pick-up hockey in an adult recreational hockey league over two seasons in 2008 and 2009, but only played for parts of 11 games in total, because of his sore back and body. He said that he played in a hockey league for players 40 years old and up, that he played at the lowest level of this league, and that the players were not very good skaters. He played in roughly half of the games played by his team. He stated that his physiotherapists told him that playing hockey was like exercising, and that it was good for stretching and loosening his muscles. He said that his teammates used to help him put on and take off his skates, and that his good friend helped him put on his equipment. He also said that his team got him a goalie jersey because it was loose to get on and off. In the year prior to the accident, he played hockey every Friday night. Mr. Mougan said that he went camping 3-4 times between 2008 and 2010.

(ii) The Medical Evidence

At the hearing, Dr. Lakhani acknowledged that he did not often ask about Mr. Mougan’s activities at the time of the treatments, but knew that he played hockey for small parts of a game. He also said that playing in a non-contact league for older people was quite safe.

On March 29, 2006, Dr. Nayeri completed a Disability Certificate, in which he reported that Mr. Mougan was not able to return to his pre-accident job, due to the heavy physical demands of that position.

In the spring of 2006, at the request of the Insurer, Mr. Mougan underwent a number of assessments at Assessment Rehabilitation Services Inc. (“ARSI”). As part of that process, on April 19, 2006, Dr. Fielden, an orthopaedic surgeon, reported as follows:

There is no evidence of impairment at this time. Mr. Mougan does not suffer an impairment as a direct result of the injuries sustained in the accident. He has not been relieved of his tendency to tense his muscles and guard the motion that is a failure of the treatment program in combination with the patient’s unwillingness to perform those activities and get him better moving quickly.

On April 20, 2006, Dr. G. Moddel, a neurologist at ARSI, reported that, from a neurological perspective, Mr. Mougan did not suffer from “an impairment as a direct result of injuries sustained in the accident that would cause a substantial inability to engage in the essential tasks of his pre-accident employment.”

On May 19 and 26, 2006, Dr. G. Challis, a psychologist at ARSI, reported that Mr. Mougan suffered from a Major Depressive Episode following the accident, that he would benefit from a brief course of therapy, and that “his amotivation and presenting apathy represent a substantial inability with respect to his capacity to engage in the essential tasks of his pre-accident employment.” However, in an addendum report on September 23, 2006, Dr. Challis reported as follows:

[Mr. Mougan’s] apathy is secondary to his pain and while his pain and motivation is obviously limiting his desire to engage in some activities, it is his pain that is impairing and likely not his psychological complaints. At this time, it is my opinion that from strictly a psychological perspective, while Mr. Mougan acknowledges difficulties with the reported symptomatology, I do not feel that they are evident to an extent that they create a substantial inability to engage in the essential tasks of his pre-treatment employment.

At the request of the Insurer, Mr. Mougan underwent further assessments at ARSI in the fall of 2007. On November 20, 2007, Dr. R. Dost, a neurologist at ARSI, reported that Mr. Mougan did not suffer a neurological impairment as a result of the accident, and that he was not neurologically disabled from performing his pre-accident employment, housekeeping tasks or self-care needs.

On November 20, 2007, Dr. S. Soriano, an orthopaedic surgeon at ARSI, reported that Mr. Mougan was involved in a “fairly significant three-vehicle high impact collision”, suffered a lumbar disc herniation at L4-L5 and L5-S1, and “probably required a disc decompression” at these levels as a result of the accident. Dr. Soriano reported that, to the best of his knowledge, there were “no pre-existing conditions.” Dr. Soriano stated that, with respect to Mr. Mougan’s lumbar spine, “maximum medical recovery had not been achieved” and he required “further definitive care and treatment for his disc herniations.” Dr. Soriano concluded that Mr. Mougan suffered a “substantial inability to perform the essential tasks of [his] pre-accident employment.”

On November 28, 2007, Dr. N. Williams, a psychologist at ARSI, reported that Mr. Mougan’s psychological tests “provided evidence of embellishment of his psychological symptoms” and that he was not psychologically disabled from performing his pre-accident employment, housekeeping tasks or self-care needs.

Dr. S. Rom, a chiropractor at ARSI who conducted a functional abilities examination of Mr. Mougan on December 29, 2007, reported that Mr. Mougan gave full and reliable effort, but also that Mr. Mougan’s “observed behaviour did not match his recorded results, indicating a sub-maximal effort.” Dr. Rom reported that Mr. Mougan was not disabled from his pre-accident employment, housekeeping tasks or self-care needs.

Dr. J. Swain, a chiropractor at ARSI, reported on March 5, 2008 that Mr. Mougan “does suffer a substantial inability to perform the essential activities of his pre-accident employment for the duration of a normal work day” and “would likely not be capable of performing the physical demands at a level consistent with industry standards.” Dr. Swain reported that there was “no evidence on file or as a result of the history taking process that would suggest the presence of pre-existing conditions that may have been exacerbated by the accident.”

On March 18, 2008, Dr. Soriano prepared an addendum report, in which he stated that Mr. Mougan “showed objective physical changes of his low back…confirmed by the MRI examination of his lumbar spine.” Dr. Soriano stated that it was reasonable for Mr. Mougan to “try to return to work on a graduated basis” and that it would be “interesting to see how he copes.” Dr. Soriano also stated that Mr. Mougan did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training and experience.

On May 21, 2008, Dr. J. Super, a chiropractor who assessed Mr. Mougan at the request of his counsel, reported that Mr. Mougan could not return to his pre-accident employment as a glazier, and that due to the physical nature of that job, and the amount of time that had passed since the accident, it was “likely that he would have to retrain, and enter a different job, one that requires less physical demands.” In a follow-up assessment on April 6, 2009, Dr. Super reported that Mr. Mougan was unable to engage in any employment for which he was reasonably suited by education, training or experience.

On April 8, 2009, Fred Winch, a rehabilitation consultant who assessed Mr. Mougan at the request of his counsel, reported that because of the accident, Mr. Mougan was “not realistically employable in his chosen profession of a glazier”, that he had to “formulate a new career path”, that he “will more likely than not because of his accident related injuries have to work in a compromised, reduced way, no matter where he lands vocationally” and that “to achieve competitive employability, he requires significant vocational rehabilitation efforts.” Mr. Winch recommended that Mr. Mougan undergo formal psycho-vocational testing and that he have the support of a qualified rehabilitation counselling specialist “who can work with him and assist him identify an alternate occupation, test [its] feasibility and follow through upon the initial steps.” Mr. Winch stated that the accident had had a “devastating impact on Sean Mougan’s vocational circumstance and earning capacity.”

On May 14, 2009, Dr. K. Fern, an orthopaedic surgeon who assessed Mr. Mougan at the request of his counsel, reported that the “ongoing problems with his back will impact significantly on his abilities to…fulfill his vocational requirements.”

On August 13, 2010, Ms. Ruth Billet, a Certified Vocational Evaluator, who assessed Mr. Mougan at the request of the Insurer, listed a number of occupations that might be suitable for Mr. Mougan “based on his current psychometric profile, as well as his education, training and work experience.” However, Ms. Billet cautioned that a recent FAE had not been completed, and that it “would be helpful to review any up to date information with respect to functional abilities in an effort to direct Mr. Mougan towards physically suitable employment options.” Ms. Billet also indicated that Mr. Mougan may require “ergonomic modifications to the workplace to accommodate restrictions”, that the listed jobs should be “verified by the appropriate medical professionals for physical suitability” and that they may not offer comparable wages to his pre-accident earnings. Ms. Billet also noted that, at the time of the accident, Mr. Mougan was “preparing for examinations to become a journeyman glazier” and that he “must now make a career change and as such could benefit from directive and supportive guidance in his efforts.”

On April 21, 2011, Dr. C. Casella, a chiropractor who performed a functional abilities evaluation of Mr. Mougan at the request of his counsel, reported that “due to lack of education, training, or experience in any other line of work,…he has suffered a complete inability to engage in any employment for which he is reasonably suited.”

At the hearing, Dr. Casella testified that Mr. Mougan made a good effort in the tests she gave him. She testified that she did not know anything of his pre-accident medical condition or educational experience, outside of what she knew from reading the other reports on file. She said that she did not test his ability to lift an object and put it down somewhere else. She stated that she was told he has not played hockey, played with children, skated or fished since the accident, but that these were reported to her. She acknowledged that it would have been important to know the specifics of the jobs Mr. Mougan has done since the accident.

Dr. Gladstone also testified and stated that Mr. Mougan was not able to work, could barely take care of himself and suffered from chronic pain. Dr. Gladstone stated that he did not think Mr. Mougan could return to his previous employment as a glazier, which was very heavy and physical in nature. Dr. Gladstone testified that an incident in May 2007, when Mr. Mougan fell on some stairs, was a minor event, and did not cause his back pain. Dr. Gladstone testified that Dr. Moddel’s report “might have been cursory in nature” since he “did not detail any muscle or nerve root irritation testing.”

(iii) Findings

(a) Mr. Mougan’s Credibility

While there were some inconsistencies in Mr. Mougan’s evidence, I find these to be relatively minor, that they did not significantly affect the medical opinions offered, and that as a whole Mr. Mougan’s evidence was credible and reliable, and supports his claim of being disabled from returning to either his pre-accident position or a reasonably suitable alternative.

A few of the assessors commented on the lack of reliability of Mr. Mougan’s presentation during the examinations. Dr. Williams stated that the results of the assessment demonstrated “symptom embellishment” on Mr. Mougan’s part. However, the vast majority of assessors commented that Mr. Mougan was pleasant and co-operative during the examinations, did not give any inappropriate responses, presented in a straightforward and consistent manner, and provided a reliable effort. Even Dr. Rom, who suggested that the results of the examination indicated a sub-maximal effort, also stated that Mr. Mougan gave a full and reliable effort. I, therefore, find that Mr. Mougan presented in a credible and reliable way during the assessments.

It is true that, on some occasions, Mr. Mougan did not fully report his pre-accident medical history. Dr. Moddel noted Mr. Mougan as saying that he had never had any work-related injuries, or previous neck or back pain. Dr. Challis reported Mr. Mougan as denying that he had ever been in a previous motor vehicle accident or had any other significant injury or physical health issues. However, Dr. Challis also noted Mr. Mougan as mentioning his prior knee problems and surgery, and psychological treatment regarding the breakup of his previous relationship. Dr. Dost also noted Mr. Mougan as denying any previous work-related injuries or motor vehicle accidents, but mentioning that he had previously had knee surgery. Dr. Williams reported Mr. Mougan as saying that his medical history was largely unremarkable and as denying seeking any mental health assistance prior to the accident, but also noted him as saying that he was relatively healthy and self-functioning before the accident. Ms. Billet reported Mr. Mougan as denying any previous motor vehicle accidents or work-related injuries, or any history of depression, but did mention his prior knee surgery.

While Mr. Mougan had been involved in some prior work accidents, and a motor vehicle accident, as well as some sports injuries, these were relatively minor, had occurred many years before the current motor vehicle accident, and the injuries suffered had fully resolved. I find that, when relating his prior medical history, Mr. Mougan was focussed on the most significant problem he had had, namely, the knee surgery for which he was off work for 18 months, as well as the fact that in the months and years immediately preceding the motor vehicle accident, he was in good health and working. Regarding his prior treatment for depression, I do not find that Mr. Mougan deliberately misled Ms. Billet about his medical history, given that he had previously offered this information to Dr. Challis.

I find that, while there was some fluctuation in the degree of Mr. Mougan’s pain following the accident, he consistently reported his complaints to the assessors.

Other inconsistencies in Mr. Mougan’s evidence involved his living circumstances before the accident and his playing hockey after the accident. At the hearing, Mr. Mougan suggested that he may have been living in a common-law relationship at the time of the accident. However, he explained that he thought he was in a common-law relationship even though he and his partner were not living together. He also initially indicated that he only played hockey in 11 games, and then said 16 games, whereas the records show that he played in 23 games. While Mr. Mougan may have been confused about the number of games in which he played, I do not see a fundamental attempt by Mr. Mougan to mislead on the general fact that he was involved in hockey over the course of two years. On the contrary, I was impressed with the specificity with which Mr. Mougan described the manner in which he was able to participate in hockey after the accident.

The Insurer submitted surveillance reports and video to challenge Mr. Mougan’s credibility, and in particular, his claim of disability following the accident. However, the Insurer did not show the video evidence at the hearing, did not call the investigators as witnesses, and did not provide Mr. Mougan an opportunity to comment on or respond to any alleged inconsistencies. In any event, the surveillance does not appear to contain anything significantly at odds with Mr. Mougan’s evidence, either during the assessments or at the hearing. I place no weight on the surveillance evidence.

In all of the circumstances, I find that Mr. Mougan provided credible and reliable evidence.

(b) Mr. Mougan’s Substantive Entitlement to Income Replacement Benefits

I find that Mr. Mougan suffered significant injuries in the accident and that this prevented him from returning to his pre-accident employment or a suitable alternative.

The Insurer suggested that Mr. Mougan’s back problems may not have arisen as a result of the accident. However, as noted by Drs. Soriano and Swain, there is no evidence that Mr. Mougan’s back condition existed at the time of the accident. Dr. Gladstone reported that Mr. Mougan had a disc herniation and thecal sac decompression for which he required immediate treatment, and that his low back pain was directly related to the accident. While two assessors at ARSI, Dr. Fielden, an orthopaedic surgeon, and Dr. Moddel, a neurologist, found that Mr. Mougan did not suffer an impairment as a direct result of the injuries sustained in the accident, they did not squarely address the issue of whether the specific spinal problems indicated in the CT scan or MRI arose, or were aggravated, as a result of the accident. Dr. Soriano, another orthopaedic assessor at ARSI, specifically commented on the radiological findings, noted the severity of the accident, and concluded that Mr. Mougan had suffered a lumbar disc herniation and likely required a disc decompression as a result of the accident. I find that Mr. Mougan suffered significant objective back injuries as a result of the accident.

I further find that Mr. Mougan suffered psychological and emotional problems (including sleep problems), as well as chronic lower back pain, as a result of the accident. While Mr. Mougan suffered from depression and underwent a course of therapy in 2004, there is no indication that he suffered any psychological or emotional problems at the time of the accident.

Within the first two years of the accident, some of the assessors at ARSI (namely, Drs. Fielden, Moddel, Dost, Williams and Rom) found that Mr. Mougan was not disabled from returning to his pre-accident employment. However, Drs. Soriano and Swain at ARSI found otherwise. Dr. Challis also initially found that Mr. Mougan was substantially disabled from returning to his pre-accident employment, but then altered that opinion, saying only that it was his pain, rather than “strictly psychological” factors, that limited his ability to engage in his previous activities. As noted, the assessors who found that Mr. Mougan was not disabled as a result of the motor vehicle accident, either did not comment on, or rejected, the connection of Mr. Mougan’s back problems to the accident. I have found this to be incorrect. The Insurer, in fact (and rightly in my view) paid Mr. Mougan income replacement benefits for almost two and a half years after the accident, on the basis that he was substantially disabled as a result of the accident from returning to his heavy work as a glazier.

I find that, at the two-year mark, when the test under the legislation changed to whether Mr. Mougan could return to reasonably suitable alternative employment, Mr. Mougan met this test. The Insurer only had two assessments done after the two-year mark, by Dr. Soriano and Ms. Billet. While Dr. Soriano reported that Mr. Mougan did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training or experience, Dr. Soriano only stated that it was reasonable for Mr. Mougan to “try to return to work on a graduated basis” and that it would be “interesting to see how he copes.” In my view, this is not the equivalent of saying that Mr. Mougan is, in fact, capable of returning to alternative employment. Similarly, while Ms. Billet listed various occupations to which Mr. Mougan might be able to return, she qualified this in various ways, saying that it depended on the completion of a current functional abilities examination, the possible need for workplace modifications, the need for medical clearance for the jobs suggested, a comparison of the anticipated wages with those Mr. Mougan earned before the accident, and the provision of support and guidance for what would be a significant career change for Mr. Mougan, given his previous physical job as a glazier. Again, I do not find this to be evidence of Mr. Mougan’s ability to return to suitable alternative employment.

I find that Mr. Mougan’s evidence, in conjunction with the assessors he relied on, establishes that he was completely incapable of returning to suitable alternative employment. Dr. Super reported that Mr. Mougan was unable to engage in any suitable employment, and would have to retrain to enter a less physically demanding job than his pre-accident work as a glazier. Similar to Ms. Billet, Mr. Winch reported that Mr. Mougan would likely have to work in a “compromised, reduced way” and required significant rehabilitation assistance to enter a new line of work. Mr. Winch also found that the accident had a “devastating impact” on Mr. Mougan’s earning capacity. This is consistent with Dr. Casella’s evidence that, because of his limited education, training and experience, Mr. Mougan suffered a complete inability to engage in reasonably suitable alternative employment. While Dr. Casella indicated that it would have been helpful to know the specific jobs Mr. Mougan has done since working at Green Island Irrigation, I do not find that this significantly undermines her opinion, given that it is consistent with the other evidence of the extent of Mr. Mougan’s disability, including that of Dr. Gladstone, who also indicated that Mr. Mougan suffered from chronic pain and was unable to work.

Mr. Mougan has, of course, not been bedridden since the accident. He was able to engage in some physical activity and attempted to engage in some remunerative employment. However, I accept his evidence that the injections he received from Dr. Lakhani provided some relief for him, and that he did as much physical activity as he could. I also do not find that his participation in hockey after the accident suggested that he was capable of returning to any type of physical work. I accept Mr. Mougan’s evidence that he only played parts of games, that it was very low-level, non-contact hockey and that he required assistance putting his equipment on. I also accept that this activity was one way in which Mr. Mougan tried to remain active and maintain his fitness level. And even if Mr. Mougan was capable of some physical activity, as he was in playing hockey, and helping his friends and relatives move some materials, I do not find that he was capable of returning to full-time physical employment. I accept the medical and rehabilitation evidence that he needed to retrain for an entirely different line of work, and that this would require significant support and guidance. Mr. Mougan has also attempted to work following the accident, but this has only been temporary, part-time and intermittent work, unlike his full-time employment prior to the accident. I accept that he has found that he is not capable of, or suited to, the work that might be available to him. I, therefore, conclude that Mr. Mougan is completely incapable of engaging in any employment for which he would reasonably be suited by reason of education, training and experience.

(c) The Application of Section 55

Pursuant to section 55 of the Schedule, an insured person entitled to an income replacement benefit is required to participate in such rehabilitation as is reasonable, available and necessary to permit the insured person to engage in suitable employment, and if the person does not participate, the insurer may notify them that the insurer intends to stop, and may stop, payment of the benefit if at least 10 business days have elapsed after the notice was given, and the insured person has not participated in the rehabilitation. Pursuant to section 55(7), if the insurer has stopped the payment of benefits, and the insured person subsequently participates in the rehabilitation, the insurer is required to resume payment of the benefit in respect of periods after the insured person complied.

On June 18, 2008, the Insurer terminated Mr. Mougan’s benefits on the basis that he had failed to participate in a “gradual return program, work hardening program.” On July 10, 2008, Dr. M. Gonneau, a chiropractor at Scarborough Physiotherapy and Rehabilitation, submitted a treatment plan for an 18 session work-hardening program. Mr. Mougan began this program on August 7, 2008. On November 7, 2008, the Insurer wrote Dr. Gonneau to determine the status of the work-hardening program. On November 13, 2008, Dr. Gonneau reported to the Insurer that Mr. Mougan was “very compliant with the work hardening program” although he did complain of pain while performing the required exercises. Dr. Gonneau reported that Mr. Mougan completed the work-hardening program over the course of 18 weeks. The Insurer did not subsequently reinstate Mr. Mougan’s income replacement benefits.

At the hearing, the Insurer submitted reports from Dr. M. Devlin, a physiatrist, and Mr. Nicholas Livadas, an occupational therapist, in part on the question of whether Mr. Mougan had “successfully completed” a work-hardening program. Both assessors provided their opinions based on the documentation available from Scarborough Physiotherapy, and concluded that Mr. Mougan had not successfully completed the program. Dr. Devlin reached this conclusion on the basis of “the length of time that it took to complete” the program, and the “numerous no-shows indicated.” Mr. Livadas also reached this conclusion on the basis that Mr. Mougan’s “attendance in the program was poor, having attended only a few sessions.”

The material from Scarborough Physiotherapy is somewhat unclear as to how many times Mr. Mougan attended the program. A “Patient Attendance Report”, dated November 16, 2011, and a “Patient Statement”, dated April 8, 2009, indicate that Mr. Mougan attended the work-hardening program 11 times. A hand-written note in the file states “17 sessions completed.” A “Chiro Daily Visit Form” indicates 1 attendance, 2 occasions where the “patient left without chiro tx exercise and modality only”, and 9 “no-shows.”

I find that Mr. Mougan participated in the work-hardening program, within the meaning of section 55 of the Schedule. In my view, Dr. Devlin and Mr. Livadas were asked, and responded to, the wrong question. The issue is not whether Mr. Mougan “successfully completed”, but whether he “participated” in the program.² I note that Mr. Mougan and Drs. Lakhani, Super and Gonneau, all indicated that Mr. Mougan experienced pain while undergoing rehabilitation, and I find that Mr. Mougan participated in the work-hardening program to the best of his ability. The documentation is also unclear as to whether the chiropractic sessions were considered an integral part of the program, given that Mr. Mougan is noted as having attended the “work-hardening program” 11 times, and given that the chiropractic sessions would have increased the total number of sessions to well over the 18 work-hardening sessions requested in the Treatment Plan. Dr. Gonneau considered Mr. Mougan to have been “very compliant with the work-hardening program.” Dr. Devlin indicated that the program was not a “true work hardening program”, but only by virtue of Mr. Mougan having done the program over 18 weeks, when it should have taken less time. Mr. Livadas felt that Mr. Mougan had not completed a true work-hardening program, but this was only in respect of his non-attendances for chiropractic treatment, and without commenting on his attendances for work-hardening. While Mr. Mougan did not attend many of the chiropractic sessions, and missed some of the work-hardening sessions, I am satisfied, on the preponderance of evidence, that he participated in the work-hardening program. I note, as well, that the Insurer did not provide any evidence that Mr. Mougan’s failure to “complete” the work-hardening program “impacted the ability of the insured to engage in employment.”³ I, therefore, find that Mr. Mougan participated in rehabilitation, and that the Insurer ought to have reinstated payment of income replacement benefits, pursuant to section 55(7) of the Schedule.

2) Mr. Mougan’s Claim for Attendant Care Benefits

Mr. Mougan claimed attendant care benefits, from March 10, 2006 to July 31, 2007, at a rate of $776.06 per month, and from August 1, 2007 to March 10, 2008, at a rate of $112.62 per month. Pursuant to section 16 of the Schedule, an insurer is required to pay reasonable and necessary expenses, as a result of an accident-related impairment, incurred by a person for an attendant. Pursuant to section 16(1.1), no attendant care benefit is payable to an insured person whose impairment is a Grade I or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline (“PAF” Guideline). Pursuant to section 16(4), the monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

Mr. Mougan maintained that, as a result of the injuries he suffered in the accident (which took him out of the PAF Guideline), he required and was entitled to attendant care assistance for the first two years following the accident. The Insurer maintains that Mr. Mougan’s injuries were not serious, that he did not suffer from chronic pain, and that he did not require the attendant care assistance claimed.

(i) The Evidence

Mr. Mougan testified that, in the first month after the accident, his wife, Cathy, helped him get in and out of the bathtub, wash his hair and feet, since he could not reach up with his arms or bend over. He said that, after the first month, Cathy helped him putting on his socks. He said that, after five to six months post-accident, he could get into the shower by himself and needed less attendant care, and that after two years post-accident, he did not need as much help.

On March 17, 2006, Dr. Nayeri completed an Assessment of Attendant Care Needs (Form 1), in which he reported that Mr. Mougan required assistance with dressing, shaving, bathing, preparing meals, mobility, and some housekeeping tasks, at a rate of $776.06 per month.

On April 11, 2006, Ms. Navneet Rayat, an occupational therapist at ARSI, prepared an Assessment of Attendant Care Needs (Form 1), in which she stated that Mr. Mougan was not in need of any attendant care assistance. On April 19, 2006, Dr. Fielden reported that Mr. Mougan did “not suffer an impairment that requires attendant care assistance” and that he is “perfectly capable of looking after himself despite his presentation and his tendency to over protect his motions.” On April 20, 2006, Dr. Moddel reported that Mr. Mougan did not suffer from “an impairment as a direct result of injuries sustained in the accident that would result in the need for…Attendant Care Assistance.” On September 20, 2006, Dr. Challis reported that Mr. Mougan did not suffer from “an impairment with regard to attendant care benefits.”

On August 8, 2007, Dr. Sole, a chiropractor who conducted an in-home and attendant care assessment at the request of Mr. Mougan’s counsel, reported that Mr. Mougan required personal care assistance for lower body dressing, at a rate of 10.3 hours per month.

On November 27, 2007, Dr. Soriano reported that Mr. Mougan did “not suffer a substantial inability to perform his pre-accident self-care needs.” On December 29, 2007, Dr. Rom reported that Mr. Mougan was not disabled from his pre-accident self-care needs.

On May 21, 2008, Dr. Super reported that Mr. Mougan was “unable to perform his activities of daily living as he did prior to his accident….” On August 10, 2008, Dr. Sole completed an Assessment of Attendant Care Needs (Form 1), in which he reported Mr. Mougan as requiring assistance dressing and undressing, at a rate of $112.67 per month.

(ii) Findings

I find that Mr. Mougan is entitled to attendant care benefits, but not to the extent claimed. I find that he is entitled to attendant care benefits from March 10, 2006 to August 10, 2006, at a rate of $776.06 per month, and from August 11, 2006 to March 10, 2008, at a rate of $112.62 per month.

I do not agree that Mr. Mougan’s injuries fell into the PAF Guideline. On April 19, 2006, in response to whether treatment proposed for Mr. Mougan fell within the PAF Guideline, Dr. Fielden stated that he felt that “unless there is some specific diagnosis that requires specific treatment, that a few days of heat and gentle range of motion exercises is all that is reasonable and necessary and beyond that the patient should be well on his way to recovery from the muscle exertion strains of the accident.” Dr. Fielden also stated that there were “no findings to demonstrate a cause” for Mr. Mougan’s symptoms. On April 20, 2006, Dr. Moddel also found that Mr. Mougan’s injuries fell within the PAF Guideline. However, these assessments took place before the CT scan on June 2, 2006, as well as the later MRIs, showing objective injuries to Mr. Mougan’s spine, that were found to be attributable to the motor vehicle accident, and that resulted in significant, chronic pain. Mr. Mougan also suffered psycho-emotional problems as a result of the accident. I, therefore, find that Mr. Mougan’s injuries fell outside the PAF Guideline, and that he is not disentitled to attendant care benefits on this basis.

Mr. Mougan claimed attendant care benefits for approximately 16 months following the accident, at a rate of $776.06 per month (based on Dr. Nayeri’s March 17, 2006 Form 1), and for the balance of the two years following the accident, at a reduced rate of $112.62 (based on Dr. Sole’s August 8, 2007 report and August 10, 2008 Form 1). The difficulty with these claims is that Mr. Mougan, himself, claimed that he only needed significant attendant care assistance for a month following the accident, and that he needed less assistance after five to six months following the accident. Mr. Mougan’s girlfriend and then wife, Cathy, was not called to give evidence on the attendant care assistance she provided. I also note that a number of the assessors at ARSI, including Dr. Soriano in November 2007, found that Mr. Mougan did not suffer a substantial inability to perform his pre-accident self-care needs.

In these circumstances, I am not prepared to award Mr. Mougan attendant care benefits to the extent claimed. I find that Mr. Mougan’s symptoms were more acute shortly after the accident, and that the physicians from ARSI who assessed Mr. Mougan at this time were not aware of the nature and severity of his injuries. However, based on Mr. Mougan’s own evidence, I find that he should only be entitled to attendant care benefits at the higher rate until August 10, 2006, five months after the accident. While Drs. Soriano and Rom reported in November and December, 2009, that Mr. Mougan was not substantially unable to perform his pre-accident self-care needs, I find that these were only comments on Mr. Mougan’s general ability to do his previous self-care tasks. Based on Dr. Sole’s more specific August 2007 report and Dr. Super’s May 2008 report (that Mr. Mougan was unable to perform his pre-accident activities of daily living), as well as Mr. Mougan’s own credible evidence concerning his ongoing pain and limitations, and difficulties dressing and undressing, I find that he is entitled to attendant care benefits at the lower rate, from August 11, 2006 until the two-year mark.

3) Mr. Mougan’s Claim for Housekeeping Benefits

Mr. Mougan claimed housekeeping and home maintenance benefits, from March 10, 2006 to March 10, 2008, at a rate of $100 per week, less amounts paid. Pursuant to section 22 of the Schedule, an insurer is required to pay for reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

The substantive test of entitlement for housekeeping benefits is set out in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006):

…the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.

(i) Evidence

Mr. Mougan testified that he lived on his own in a basement apartment before the accident and that he did cooking and cleaning there. He also took his two dogs on lengthy walks. Within a week of the accident, his then girlfriend, Cathy, helped him with cooking, cleaning, laundry, grocery shopping and walking the dogs. Cathy did this four to five hours per day, six to seven times a week, for roughly two months following the accident. Mr. Mougan said that he paid Cathy when he could and promised to pay the rest. For the next two to three months, Cathy helped three to four hours per day, three to five days a week, since Mr. Mougan said that he had begun to do smaller things at home, such as carrying smaller bags of garbage and putting the recycling items away on the counter top. After five or six months post-accident, Cathy and her son moved in with Mr. Mougan. Mr. Mougan and Cathy eventually married in September 2009, having a daughter approximately a year later. Mr. Mougan says that his wife still does the housework, but that he looks after their daughter during the day, with the help of his step-son (who is ten years old), when his wife is at work. Mr. Mougan said that he also relies on his parents and in-laws to take care of his daughter, since his back often goes out, and he can be in bed for two weeks.

On March 17, 2006, Dr. Nayeri completed an Assessment of Attendant Care Needs (Form 1), in which he reported that Mr. Mougan required assistance with some housekeeping tasks. On March 29, 2006, Dr. Nayeri completed a Disability Certificate, in which he reported that Mr. Mougan was substantially disabled from performing his normal housekeeping tasks, such as vacuuming, laundry, ironing and grocery shopping.

On April 19, 2006, Dr. Fielden reported that Mr. Mougan does not suffer a substantial inability to perform his normal pre-accident housekeeping and home maintenance duties, and that “in point of fact resuming these activities and taking them on himself would bring about a much more rapid return to normal and would be considered part of the rehabilitation treatment.” Dr. Fielden reiterated these views in a supplementary report on May 5, 2006. On April 20, 2006, Dr. Moddel reported that Mr. Mougan did not suffer from “an impairment as a direct result of injuries sustained in the accident that would cause a substantial inability to perform the housekeeping and home maintenance service that he normally performed before the accident.” On May 24, 2006, Dr. Challis reported that Mr. Mougan was not disabled from his housekeeping activities. Dr. Challis reiterated this on September 20, 2006.

On August 8, 2007, Dr. Sole reported that Mr. Mougan required housekeeping assistance of approximately 18 hours per week, in relation to an estimated 15 hours per week for the various housekeeping tasks Mr. Mougan did before the accident.

On November 27, 2007, Dr. Soriano reported that Mr. Mougan was “able to perform housekeeping and home maintenance activities.” On December 29, 2007, Dr. Rom reported that Mr. Mougan was not disabled from his pre-accident housekeeping tasks.

On March 5, 2008, Dr. Swain reported that Mr. Mougan did not suffer a substantial inability to perform his pre-accident housekeeping tasks, but would reasonably require a “degree of assistance with heavier tasks that would be potentially harmful to [his] current condition, such as snow removal and heavier lifting tasks.”

On May 21, 2008, Dr. Super reported that Mr. Mougan was “unable to perform his activities of daily living as he did prior to his accident….”

(ii) Findings

As with Mr. Mougan’s claim for attendant care benefits, I find that Mr. Mougan is entitled to housekeeping benefits, but not to the extent claimed. Despite the findings of the ARSI assessors who saw Mr. Mougan shortly after the accident, I find that he suffered significant spinal injuries in the accident that resulted in an acute period of disability with respect to his pre-accident housekeeping tasks. Based on Mr. Mougan’s evidence, I find that this period lasted for five months after the accident. Mr. Mougan indicated that, at that point, he did not require assistance with lighter tasks around his home and that he only needed assistance approximately three times per week. The difficulty is that Mr. Mougan also stated that his then girlfriend, Cathy, moved into the house with him at that point and did the housework, which would undermine Mr. Mougan’s statement that he required housekeeping assistance three times a week at that point. Nevertheless, given the nature of Mr. Mougan’s injuries, his own evidence, as well as that of Dr. Sole in August 2007 and particularly that of Dr. Swain in March 2008, I accept that Mr. Mougan required assistance with the heavier tasks around the house. Based on Dr. Sole’s August 2007 report, and Mr. Mougan’s evidence, a rough estimate of the time for these tasks would be two hours per week. I, therefore, find that Mr. Mougan is entitled to housekeeping benefits, from March 10, 2006 to August 10, 2006, at a rate of $100 per week, and from August 11, 2006 to March 10, 2008, at a rate of $20 per week, less amounts already paid by the Insurer.

4) Mr. Mougan’s Claim for the Cost of Treatment Plans

On August 8, 2007, Dr. Sole conducted an in-home and attendant care assessment, and reported that Mr. Mougan required various assistive devices, including an ObusForme lumbar support, cervical pillow and ergonomic housekeeping devices. Dr. Sole stressed that these devices “should serve to assist his return to functional independence but are not meant to imply functional independence with use.” Dr. Sole reported Mr. Mougan as saying that he had “received previously recommended devices that he has not found to be helpful.” Dr. Sole submitted a Treatment Plan (OCF-18) for these devices on September 7, 2007, in the amount of $1,054.54.

On September 29, 2007, at the request of the Insurer, Dr. Swain reviewed the request for assistive devices, and noted that the examination conducted by Dr. Sole on August 8, 2007, provided “very little detail as to the functional testing and observation of actual task performance”, and that Dr. Sole stated that the devices should “not be implemented until further therapeutic progress has been made.” Dr. Swain, therefore, concluded that the devices should not be approved “until such time that actual implementation is considered necessary.” Dr. Swain also noted that the examination by Dr. Gladstone on August 16, 2007, “did not appear to involve substantial functional testing of any nature, or actual testing of the low back or lower limb concerns” and did not contain any recommendations for devices. On December 29, 2007, Dr. Rom reported that Mr. Mougan “should be able to perform most [of his self-care] activities with the use of appropriate assistive devices such as a long handle brush, etc.”

I find that the evidence establishes that Mr. Mougan would benefit from the use of assistive devices. However, as Dr. Swain points out, Dr. Sole did not seem to believe that they should be used until further therapeutic progress was made. Nevertheless, as Dr. Sole states, some of the devices, namely, the back supports and cervical pillow, are to assist Mr. Mougan with proper posture and to ease his pain. This would also apply to the recommended heating pad. I, therefore, find that Mr. Mougan is entitled to those devices, in the amount of $438.65.

On January 31, 2008, Dr. N. Raffi, a chiropractor, submitted an OCF-18 for Mr. Mougan to undergo spinal decompression, in the amount of $2,563.72. On February 26, 2008, Dr. Swain assessed Mr. Mougan in connection with Dr. Raffi’s treatment plan, and on March 5, 2008, reported that, if Mr. Mougan had disc problems prior to the accident, they were either asymptomatic or did not hinder his activities, and that “it would be reasonable to consider aggravation as a result of the accident related forces to the degree presented on this date.” Dr. Swain reported that Mr. Mougan’s reported symptoms “were supported by objective clinical findings with respect to his low back condition”, but not in relation to his left shoulder and hand complaints. Dr. Swain reported (and reiterated in a supplementary report of July 21, 2008) that Dr. Raffi’s recommendations were not reasonable and necessary, pending the outcome of a consultation with an orthopaedic surgeon.

I find that Dr. Raffi’s Treatment Plan is reasonable and necessary. I note that, on August 16, 2007, Dr. Gladstone, a neurologist, reported that Mr. Mougan required an “urgent referral to an orthopaedic or neurosurgeon to decompress his lumbosacral discs….” Dr. Soriano, an orthopaedic surgeon himself, expressed a similar view in his November 27, 2007 report. In my view, this is sufficient to address Dr. Swain’s concern about the need for an orthopaedic consultation.

5) Mr. Mougan’s Claim for the Cost of Examinations

On January 10, 2007, Dr. Mandel reported that Mr. Mougan “continues to struggle to cope effectively with the physical, cognitive and emotional consequences of his motor vehicle accident, including his…fear of driving….” Dr. Mandel reported that it was “necessary to provide psychological treatment to Mr. Mougan at this time to help his re-establishing his functioning in so far as possible to pre-injury levels” and that treatment sessions would include “implementation of systemic desensitisation to reduce fears associated with activities that engender anxiety, such as driving.” Dr. Mandel submitted an Application for Approval of an Assessment or Examination (an OCF-22) on January 26, 2007 for a driver evaluation. The materials before me do not appear to contain a response to this Treatment Plan by the Insurer. I note, however, that, on August 8, 2007, Dr. Sole also recommended a “psychological evaluation for unresolved fear of driving.” While Mr. Mougan did do some driving after the accident, this is consistent with his reporting to Dr. Challis in the May 5, 2006 assessment, that he experienced anxiety and discomfort when doing so, and while riding as a passenger. On the evidence before me, I find Dr. Mandel’s proposed evaluation to be reasonable and necessary.

On January 29, 2007, Dr. M. Indech, an orthopaedic surgeon, submitted an OCF-22 for an orthopaedic assessment. On February 13, 2007, Dr. Fielden conducted a paper review of the proposed examination, reiterated his findings of April 2006 and concluded that the requested examination was not reasonable and necessary.

On February 22, 2007, Dr. Fielden was asked to comment on the CT scan report, which as he stated, showed “some changes in the lower two discs.” Dr. Fielden reported that “these disc problems, which undoubtedly were there before the accident, are the source of [Mr. Mougan’s] ongoing complaints” and that “unless there develops some clinical evidence of disc herniation that is creating a clinical situation, then no further treatment or investigation of this claimant is necessary.” As indicated earlier, I find that Mr. Mougan suffered significant objective back injuries as a result of the accident. I have further found that Mr. Mougan developed, in Dr. Fielden’s words, a “clinical situation.” I, therefore, find the proposed orthopaedic assessment to be reasonable and necessary, particularly in light of Dr. Swain’s February 2008 view that Mr. Mougan needed to see an orthopaedic surgeon before undergoing a spinal decompression.

On June 7, 2007, Dr. Sole recommended that Mr. Mougan undergo an in-home and attendant care needs assessment. On June 20, 2007, Dr. Swain conducted a paper review of this request, and found that, in light of the examinations conducted by Drs. Fielden and Moddel, as well as the attendant care assessment performed by Ms. Rayat, there appeared to be “much evidence to refute the performance of yet another in home examination at this point in time” and that the proposed examination would “not…provide any new or useful information that could be used to benefit the claimant and/or overall management of his case.”

I find that Dr. Sole’s proposed assessment was reasonable and necessary. The examinations noted by Dr. Swain had occurred more than a year earlier, and immediately following the accident. New evidence had come to light about the nature and severity of Mr. Mougan’s injuries, and his need for housekeeping and attendant care assistance was still very much at issue. I find that he was entitled to seek a new in-home assessment.

Special Award

Pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, where an insurer has unreasonably withheld or delayed payments, an Arbitrator can, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. Mr. Mougan sought a special award on the basis that the Insurer ought to have reinstated income replacement benefits upon his participating in the work-hardening program at Scarborough Physiotherapy and Rehabilitation.

I have found that the Insurer ought to have reinstated Mr. Mougan’s benefits on the basis of his participation in the work-hardening program. This is particularly the case once the Insurer received Dr. Gonneau’s November 2008 report that Mr. Mougan had complied with the program. However, the Insurer did not reinstate his benefits, and did not inquire further about the extent or nature of his participation at Scarborough Physiotherapy until the hearing stage. It was only at that point that additional documentation was obtained and the reports of Dr. Devlin and Mr. Livadas were generated. The Insurer also only had two very questionable reports from Dr. Soriano and Ruth Billet as to Mr. Mougan’s ability to return to reasonably suitable alternative employment. As noted, both Dr. Soriano’s and Ms. Billet’s reports were extremely tentative as to whether Mr. Mougan could engage in any other employment for which he was reasonably suited by reason of his education, training and experience. The Insurer also did not appear to rely on these reports to deny Mr. Mougan income replacement benefits at the two-year mark. Nor did it engage in the type of assessments suggested by Ms. Billet to determine if the potential careers for Mr. Mougan were medically, financially or vocationally feasible for him. The Insurer, in fact, continued to pay Mr. Mougan income replacement benefits until it considered him not to be co-operating in his rehabilitation, and did not revisit its position once it had received Dr. Gonneau’s report. I, therefore, find that the Insurer unreasonably withheld benefits from Mr. Mougan, particularly in light of the additional evidence he provided concerning his inability to return to alternative employment, once the two-year mark had passed. In all of the circumstances, I find that Mr. Mougan is entitled to a special award.

Mr. Mougan sought the maximum special award of 50%, as determined under section 282(10) of the Insurance Act. The Insurer pointed to the fact that it had issued a series of OCF-9’s concerning Mr. Mougan’s entitlement to benefits, as a factor mitigating against a special award. While the Insurer did appear to properly respond to the other requests Mr. Mougan made for benefits and assessments, no evidence was called to explain the reason that the Insurer did not respond to Dr. Gonneau’s November 2008 report, or whether the Insurer considered Dr. Soriano’s or Ms. Billet’s reports to be sufficient to maintain a denial of Mr. Mougan’s income replacement benefits. In the absence of any other evidence in this regard, I find that the maximum special award in respect of Mr. Mougan’s entitlement to income replacement benefits is warranted in these circumstances. However, given that the quantum of Mr. Mougan’s entitlement to income replacement benefits and interest must still be worked out by the parties, I am unable to determine the amount owing for the special award at this time. If required, I will remain seized of this issue, pending the parties’ calculation of the income replacement benefits and interest owing.

Interest

Finally, pursuant to section 46(2) of the Schedule, an insurer is required to pay interest on any amounts found to be overdue for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. Mr. Mougan sought interest on the amounts ordered to be paid. The Insurer did not dispute this. I see no basis for not awarding interest in this case. I find that Mr. Mougan is entitled to interest on all of the benefits to which I have found him entitled.

EXPENSES:

Both parties sought their costs of the arbitration. However, they did not make detailed submissions on this point. I would encourage the parties to work to resolve this issue. Should they be unable to agree, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

October 31, 2013

Eban Bayefsky Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 138

FSCO A09-001311

BETWEEN:

SEAN MOUGAN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Allstate shall pay to Mr. Mougan income replacement benefits, from August 7, 2008, onward, at a rate of $351.86 per week.

2. Allstate shall pay to Mr. Mougan attendant care benefits, from March 10, 2006 to August 10, 2006, at a rate of $776.06 per month, and from August 11, 2006 to March 10, 2008, at a rate of $112.62 per month.

3. Allstate shall pay to Mr. Mougan housekeeping and home maintenance benefits, from March 10, 2006 to August 10, 2006, at a rate of $100 per week, and from August 11, 2006 to March 10, 2008, at a rate of $20 per week, less amounts already paid.

4. Allstate shall pay to Mr. Mougan the following medical benefits:

(a) the cost of assistive devices, as recommended by Dr. Sole, in the amount of $438.65

(b) the cost of a spinal decompression, as recommended by Dr. Raffi, in the amount of $2,563.72.

5. Allstate shall pay to Mr. Mougan the cost of the following examinations:

(a) a driver evaluation, as recommended by Dr. Mandel, in the amount of $1,366.34

(b) an orthopaedic assessment, as recommended by Dr. Indech, in the amount of $1,790.04

(c) an in-home and attendant care needs assessment, as recommended by Dr. Sole, in the amount of $1,205.46.

6. Allstate shall pay to Mr. Mougan a special award, in an amount to be determined.

7. Allstate shall pay to Mr. Mougan interest on the benefits ordered to be paid.

October 31, 2013

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2See, for example, Lisowecki and Dominion of Canada General Insurance Co. (FSCO A07-000610, May 5, 2008), upheld on appeal, in part, on other grounds, (FSCO Appeal P08-00019 and P08-00019C, May 7, 2009) and Marshall and Aviva Canada Inc. (FSCO A-05-001868, December 26, 2006).
3. 3Supra, note 2, Lisowecki and Dominion of Canada General Insurance Co.