Bhupinder Singh Grewal v. AIG Commercial Insurance Company of Canada, 2014 ONFSCDRS 126

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2014 ONFSCDRS 126

FSCO A09-002980

BETWEEN:

BHUPINDER SINGH GREWAL

Applicant

and

AIG COMMERCIAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: September 30, October 1, 2 and 3, 2013 at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received up to June 19, 2014.

Appearances: Frank Burns for Mr. Grewal

J. Claude Blouin for AIG Commercial Insurance Company of Canada

Issues:

The Applicant, Bhupinder Singh Grewal, was injured in a motor vehicle accident on January 18, 2009. He applied for and received statutory accident benefits from AIG Commercial Insurance Company of Canada (“AIG”), payable under the Schedule.¹ Disputes arose concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Grewal 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 the Applicant entitled to receive caregiver benefits in the amount of $300.00 per week from January 19, 2009 to July 7, 2009 (less amounts paid)?

2. Is the Applicant entitled to receive weekly income replacement benefits from July 8, 2009 onwards at the rate of $183.00 per week?

3. Is the Applicant entitled to receive payments for housekeeping and home maintenance services at the rate of $100.00 per week from January 19, 2009 onwards (less amounts paid)?

4. Is the Applicant entitled to attendant care benefits as follows:

a. $6,000.00 per month (less amount paid) from January 19, 2009 to August 18, 2009?

b. $1,582.55 per month from August 19, 2009 onwards?

5. Is the Applicant entitled to receive the following medical benefits:

a. $10,259.19 for the cost of an in-home assessment and treatment recommended by Nir Tamir of Functionability Rehabilitation Inc. in a plan dated August 21, 2012?

b. $5,530.00 for the cost of social skills training recommended by Nir Tamir of Functionability Rehabilitation Inc. and Esmaeli Senedjani of F.O.R.S. in a plan dated November 8, 2012?

c. $56,600.00 U.S. for the cost of assessment and treatment recommended by Dr. Connell in a plan dated September 26, 2012?

d. $323.30 for the difference between the cost ($776.72) of assistive devices recommended by Integris Health Care in a plan dated March 5, 2009 and the amount approved by the Insurer ($453.42)?

e. $1,936.40 for the difference between the cost ($3,415.32) of treatment recommended by Healthy Lifestyle in a plan dated April 15, 2009 and the amount approved by the Insurer ($1,478.92)?

f. $1,464.46 for the difference between the cost ($5,244.56) of treatment recommended by Healthy Lifestyle in a plan dated February 4, 2009 and the amount approved by the Insurer ($3,780.10)?

g. $954.80 for the cost of devices recommended by Fundamental Assessment Centre in a plan dated May 12, 2009?

h. $2,800.00 for TMJ oral treatment by Dr. Goldberg in a plan dated September 1, 2009?

i. $538.99 for the difference between the cost ($1,149.19) of a gym and lumosity membership recommended by Romy Berger of Beverlee C. Melamed & Associates Inc. in a plan dated November 21, 2012 and the amount approved by the Insurer ($610.20)?

6. Is the Applicant entitled to the following (re cost of assessments):

a. $1,541.00 for the cost of a social work assessment recommended by Progressive Social Reintegration in a plan dated July 9, 2009?

b. $1,000.00 for the difference between the cost ($1,800.00) of a TMJ assessment recommended by Dr. Goldberg in a plan dated July 8, 2009 and the amount approved by the Insurer ($800.00)?

c. $2,302.00 for a neurological assessment recommended by Specialist Group Inc. in a plan dated July 10, 2009?

d. $902.00 for the difference between the cost ($2,302.00) of an orthopaedic assessment recommended by Specialist Group Inc. in a plan dated July 10, 2009 and the amount approved by the Insurer ($1,400.00)?

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

8. Is the Insurer liable to pay the Applicant a special award pursuant to subsection 282(10) of the Insurance Act, because it unreasonably withheld or delayed payments to the Applicant?

9. Is the Insurer liable to pay the expenses of the Applicant in respect of the arbitration under s. 282(11) of the Insurance Act?

10. Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

Result:

1. The Insurer shall pay up to $5,244.56 for all goods and services provided to the Applicant pursuant to the treatment plan of Dr. Badhar from Healthy Lifestyle dated February 4, 2009 (less amounts, if any, already paid by the Insurer for goods or services pursuant to this treatment plan).

2. The Insurer shall pay interest on all overdue amounts in accordance with the Schedule.

3. The issue of the expenses of this proceeding is deferred.

4. All other claims of the Applicant are dismissed.

EVIDENCE AND ANALYSIS:

Overview

On the evening of January 18, 2009, the Applicant was driving a tractor trailer along Highway 401. He claims that his vehicle was side-swiped on the passenger side by another vehicle and then swerved left into a guardrail (i.e., the driver’s side of his truck collided with the guardrail). As a result, the Applicant struck his head on the window of the driver-side door. The impact of his head was forceful enough to smash out the window, fracture bones on the left side of the Applicant’s face and cause subdural bleeding and a mild to moderate brain injury. He was taken from the scene of the accident by ambulance to Guelph General Hospital. While under medical attention, he suffered a seizure. A few hours later (early in the morning of January 19, 2009), the Applicant was transferred to Hamilton General Hospital, where he remained until his discharge on January 22, 2009.

According to a test administered within a reasonable time after the January 18, 2009 accident by a person trained for that purpose, it appears that the Applicant sustained a brain impairment that resulted in a score of 9 or less on the Glasgow Coma Scale (“GCS”). By May 2009, the Insurer appears to have conceded that, based upon the GCS score, as a result of this accident, the Applicant had sustained a “catastrophic” impairment within the meaning of the Schedule. The Insurer has confirmed at this proceeding that it is not challenging that the Applicant has sustained a catastrophic impairment.

At the time of the accident, the Applicant was 34 years old and in good health. He came to Canada in 1997. He has a university-level education, and speaks Hindi, Punjabi and, with some limitations, English. The Applicant married his current wife, Mandeep Kaur, in 2000 and they have two sons: Sahil (born January 20, 2003) and Ruchit (born November 2, 2005). They live in a house in Brampton, together with the Applicant’s mother-in-law.

From 1998 until about 2004, the Applicant worked in a factory where he was promoted to a position of some authority. He was able to read and follow written instructions in English. In 2003, work at the factory began to slow down. In 2004, the Applicant obtained an AZ driver’s licence that permitted him to drive trucks that had air brakes and, in 2005, he began to earn a living as a truck driver. Shortly thereafter, he incorporated his own company (Grewal Motor Freight Inc.). This company would bill for transport services and would then pay the Applicant, as an employee of the company. This method of conducting business continued until the time of the accident on January 18, 2009. The Applicant testified that his annual gross income at the time of the accident was about $48,000.²

In general terms, the Applicant recovered reasonably well from his physical injuries, although he continues to complain of some chronic pain (especially headaches) and other symptoms. His more significant ongoing impairments, however, appear to be psychological and cognitive.

While, initially, the Insurer appeared willing to accept the Applicant’s claims at face value, around the summer of 2009 serious questions began to arise concerning the Applicant’s credibility. To many of the Insurer’s assessors, there appeared to be significant discrepancies between the Applicant’s reported and demonstrated level of function during formal testing and his level of functional ability as captured in surveillance videos. The Applicant also failed numerous tests for validity administered by a neuropsychologist (Dr. Trepanier); he failed to such an extent that Dr. Trepanier concluded that the Applicant was likely deliberately trying to make himself appear more impaired than he was. These suspicions were later exacerbated by evidence of inconsistencies in what the Applicant was telling different assessors and by his failure to disclose crucial information to the Insurer.³

During this proceeding, the Applicant did not adequately address these concerns about his credibility. His case was significantly weakened by his failure to explain these inconsistencies and his failure to produce important documents (especially those concerning post-accident employment and income). The Applicant’s case was further weakened by his failure to produce witnesses at the hearing such as members of his household who could describe and compare the Applicant’s level of function and usual activities (such as housekeeping and caregiving activities) both before and after the accident and who could provide particulars of any services they (or others) may have provided to the Applicant.

Caregiver Benefits

The Applicant has claimed caregiver benefits in the amount of $300.00 per week from January 19, 2009 to July 7, 2009 (less amounts that have already been paid by the Insurer). The Insurer paid $300.00 per week in caregiver benefits from January 19, 2009 through May 10, 2009 (a total of $4,800.00). Thus, the period in dispute is from May 11, 2009 through July 7, 2009 (i.e., there is less than two months of caregiver benefits in dispute).

Pursuant to section 13 of the Schedule, to be eligible for caregiver benefits, an applicant must prove that:

• at the time of the accident, he or she was residing with a person in need of care

• at the time of the accident, he or she was the primary caregiver for the person in need of care, and

• as a result of (and within 104 weeks after) the accident, he or she suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

The Applicant’s claim for caregiver benefits is dismissed because he has failed to prove both that he was the primary caregiver of his children at the time of the accident and that, during the period in question, he suffered a substantial inability to engage in the caregiving activities in which he engaged at the time of the accident.

For about six months prior to the accident, the Applicant was driving a transport truck on behalf of Trans 4 Logistics.⁴ He drove mainly between Michigan and Toronto and was working approximately 70 hours per week. His wife also worked outside the home, about 40 hours per week. The Applicant testified that his mother-in-law was primarily responsible for looking after the children during this period but that he would help out on weekends (when he was in town) by: taking the children to a park; driving them to swimming classes on Sundays; or taking them shopping. Neither the Applicant’s wife nor his mother-in-law testified at the hearing. Based upon the evidence presented, I find that the Applicant’s childcare responsibilities at the time of the accident were extremely limited and that he has failed to prove, on a balance of probabilities, that he was the primary caregiver.

Even if, however, the Applicant had proven otherwise, his claim for caregiver benefits would still have to be dismissed because he has failed to prove that, during the period in question (May 11, 2009 through July 7, 2009), he suffered a substantial inability to engage in the caregiving activities in which he engaged at the time of the accident. By his own testimony, his usual pre-accident caregiving activities related primarily to transporting his children to and from school, appointments, activities and shopping. Surveillance of May 8, 11 and 14, 2009 shows the Applicant driving his older son to and from school and taking his younger son shopping. It also shows the Applicant lifting and carrying his younger son and moving with ease: running after a shopping cart, bending, walking briskly, twisting, lifting and carrying. In short, the surveillance shows the Applicant without any obvious physical limitations and engaged in caregiving activities similar to his purported pre-accident caregiving activities.

Counsel for the Applicant has suggested that the Applicant’s psychological and/or cognitive impairments may have made it unsafe for the Applicant to be left alone supervising his children during the period in question. The surveillance does show some conduct that could be considered unsafe (for example, failing to properly supervise his younger son in the parking lot of the grocery store). Unfortunately, I have no basis for comparing the Applicant’s supervisory skills and judgment pre- and post-accident since no evidence was led on this issue from those who would have first-hand knowledge (such as the Applicant’s wife and mother-in-law). The Applicant may have been just as careless before the accident as after the accident. Therefore, I find that the Applicant has failed to prove that, as a result of the accident, he has suffered a substantial inability to engage in the caregiving activities in which he was engaged at the time of the accident.

For these reasons, the Applicant’s claim for caregiver benefits is dismissed.

Income Replacement Benefits

The Applicant has claimed income replacement benefits in the amount of $183.00 per week from July 8, 2009 onwards.

Re-election

Under the Schedule (as it read at the time of this accident), an applicant could choose (i.e., elect) to claim only one of three weekly benefits. In this case, the Applicant initially (in March 2009) elected to claim caregiver benefits.

On July 7, 2009, the Applicant’s lawyer wrote to the Insurer, enclosing a new form OCF-10 and explaining why the Applicant wished to change his election (i.e., re-elect) and claim income replacement benefits from that date onwards.

Case law⁵ suggests that, under the Schedule as it was in 2009, an applicant might be permitted to change his or her election, depending upon:

• the time that had passed since the initial election

• the reasons for the delay

• the reasons for seeking re-election

• the effect of the re-election and potential prejudice to the insurer

In this case, the explanation given by the Applicant’s lawyer in her letter of July 7, 2009 (which is the only explanation provided to me) was that, when the Applicant initially made his election on March 6, 2009, he had not yet filed his income tax return for 2008 and so was unable to decide which type of benefit was most advantageous to him. Furthermore, it is pointed out that there is only a four month delay between the election and the re-election and it is suggested that there is no prejudice to the Insurer.

The reason given by the Applicant’s counsel for seeking to re-elect seems weak to me and the timing is suspicious. Both the Applicant and his counsel were aware at the time of the original election (i.e., in March 2009) that, at the time of the accident, the Applicant had been working about 70 hours per week as a truck driver and had purportedly been earning gross business income of about $48,000 annually. This was not new information in July 2009. They also knew in March 2009 that he had not worked since the date of the accident. Little new information was available in July 2009 that had not been available earlier, except for a draft statement of business activities (included with this letter of July 7, 2009). As for the timing of this re-election, it is sought around the time that caregiver benefits were terminated when the Applicant was caught on surveillance video engaging in caregiving activities (including driving the older child to school and taking the younger child shopping) at a time he was claiming to be substantially disabled from engaging in such activities and at a time he was telling at least one assessor⁶ that he had not yet returned to driving (due to anxiety) and that he was unable to drive due to physical limitations.

Nevertheless, there was very little delay in this re-election and the Insurer has adduced no evidence of prejudice to it in permitting this re-election.⁷ In light of the short delay in making the re-election and the lack of any evidence of prejudice to the Insurer, I shall therefore permit the re-election but I shall also consider the circumstances surrounding this re-election when assessing the credibility of the Applicant.

Eligibility -- Criteria

Pursuant to Part II of the Schedule, an insurer shall pay an insured person an income replacement benefits if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

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 is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

Calculation of Amount of Benefit -- Methodology

For an accident in 2009, pursuant to subsection 6(1) of the Schedule, the amount of income replacement benefit is typically⁸ calculated as follows:

(a) for each of the first 104 weeks of disability, 80 per cent of the insured person’s net weekly income from employment determined in accordance with s. 61 of the Schedule;

(b) for each week after the first 104 weeks of disability, the greater of the amount specified in clause (a) and $185.

From the income replacement benefit that would otherwise be payable, an insurer may deduct (amongst other things) 80 per cent of the net income received by the insured person in respect of any employment subsequent to the accident (s. 6(2)). Post-accident employment may not only speak to the insured person’s level of function (and, thus, eligibility for income replacement benefits) but will also usually generate income that will reduce (possibly to zero) the amount of income replacement benefits payable to the insured person. Thus, it is critical that an insured person be honest and forthcoming with detailed information concerning both their pre-accident income from employment as well as any income received by the insured person in respect of any employment subsequent to the accident.

Pre-accident Employment and Income

Before coming to Canada in 1997, the Applicant assisted his father on the family farm. In addition to other responsibilities on the farm, the Applicant would repair and maintain farm machinery such as plows and a tractor. He has a university-level education and speaks Hindi, Punjabi and, with some limitations, English.

After moving to Canada, he studied English for a few months and then, in 1998, obtained a job working in a plastics factory. He worked on the line, packing plastic bags. After about 2 years, he was promoted to “lead” which involved setting up the machines for different size bags, supervising one or more assistants and doing quality control (ensuring that the plastic bags coming out of the machine were the right size). He was able to read and follow written instructions in English.

In 2003, work at the plastics factory began to slow down. In 2004, the Applicant obtained an AZ driver’s licence that permitted him to drive trucks that had air brakes (i.e., tractor trailers) and, in 2005, he began to earn a living as a truck driver. Shortly thereafter, he incorporated his own company (Grewal Motor Freight Inc.). This company would bill for transport services and would then pay the Applicant, as an employee of the company. This method of conducting business continued until the time of the accident on January 18, 2009.

In 2005, the Applicant drove for Triple Bull Logistics, doing long hauls to the U.S. He would drive for up to 11 hours continuously. He would have a co-driver with him and would be away from home for 5 to 6 days at a time. He did this work for about 8 months. In 2005, his reported net income from employment was $15,206.00.

From mid-2006 through mid-2008, the Applicant (through his corporation), drove a tractor trailer for Airtime Express, moving cargo mainly between Chicago and New York. He drove alone. His reported personal net income for 2006 was $14,965.00 and for 2007 was $12,000.00.

In the summer of 2008, again through his corporation, the Applicant began driving full-time on behalf of Trans 4 Logistics, moving auto parts between Michigan and Toronto (a two-day round trip). He worked up to 70 hours each week. He would typically start work in the afternoon or evening and do approximately two runs each week (i.e., be absent from home for 4 or 5 days each week). This continued until the time of the accident in January 2009.

The Applicant testified that his annual gross income at the time of the accident was about $48,000 (and he estimated that his net income was about half that amount). The Applicant produced few records for his corporation (Grewal Motor Freight Inc.). The unaudited statement for 2008 shows total revenue for this company of $23,456 and expenses of $23,184, for a net income of $272; it also shows that it paid wages of $13,000. The Applicant’s personal income tax return for 2008 (filed in or about September 2009), shows that he reported net business income (from self-employment) of $13,000 which, after deductions for CPP contributions, resulted in net personal income of $12,529.75. It is undisputed that the Applicant’s income (as reported by the Applicant to Canada Revenue Agency) would, at best, entitle him to an income replacement benefit of $183.00 per week.⁹

Post-accident Employment and Income

The Applicant has admitted to working extensively after the accident of January 2009 but has provided virtually no documentation to verify the details of his post-accident employment and income.

There is some indication that the Applicant may have returned to full-time work by the summer of 2009 (if not earlier).¹⁰

The Applicant stated that he tried to work in a factory in late 2009 but has provided no other details concerning that work.

He admitted that, at some point in 2009 he began to drive his truck again (this time for Pro-X Logistics) and this continued until 2012. He testified that he worked about 8 hours per day, three or four days per week and earned about $2,000 to $2,500 per month.

The Applicant’s income tax return for 2009 reports net personal income of about $2,858. His reported gross business income for 2010 was $12,840, which, after deductions for CPP contributions, resulted in net personal income of $12,377.67 (i.e., virtually identical to his reported net personal annual income at the time of the accident).

According to the Applicant, after February 2011, he reduced his hours at Pro-X but continued to work there regularly, as well as driving for M.T.S.

In August 2011, due to the concerns of some of the Applicant’s doctors that it might be unsafe for him to continue driving tractor trailers, his licence was suspended by the Ministry of Transportation for about two and a half months. He was then referred by his family doctor (Dr. Dhillon) to a psychiatrist (Dr. Dhaliwal) to be assessed to determine if it was safe for him to continue truck driving. The Applicant was cleared by Dr. Dhaliwal to return to truck driving and his licence was reinstated on November 16, 2011.

The Applicant reported driving for M.T.S. in Brampton for 25-30 hours per week from the summer of 2012 to the summer of 2013.

No personal income tax returns were provided by the Applicant for 2011, 2012 or 2013. No documentation was provided by the Applicant to verify his hours of work or income earned for these years. He did report to Dr. Kumar in December 2012 that he was still driving his truck around the Toronto area and was working at least 50 hours per week but he also apparently reported to Dr. Vigna (also in December 2012) that he had not worked for the past 8 or 9 months). It is difficult to reconcile these two statements. The Applicant reported to Marjorie Green, O.T., that he worked (truck driving) approximately 6 months in 2010, 6 months in 2011, 5 months in 2012 and 5 months in 2013. Again, the Applicant has provided few details and no documentation concerning his post-accident employment and income other than one tax return for 2009 and another for 2010.

First 104 Weeks

In the absence of any submissions to the contrary, I will assume that the Applicant is taking the position that 104 weeks of disability in this case is the same as the first 104 weeks immediately following the accident.

The onus is upon the Applicant to establish both that he meets the threshold level of impairment to qualify for the benefits claimed (i.e., a substantial inability to perform the essential tasks of the pre-accident employment) and also the quantum of the benefit to which he is entitled. In this case, where the Applicant has admitted working extensively after the accident, this requires credible and sufficient evidence of post-accident earnings to permit quantification of the Applicant’s loss of income, if any, and to permit calculation of any income replacement benefit to which he might be entitled (after appropriate deductions for post-accident income); I find that the Applicant has failed to meet this onus.

During the first six months following the accident (January 18, 2009 to July 7, 2009), the Applicant chose to claim caregiver benefits. Commencing July 8, 2009, the Applicant purported to re-elect and claim income replacement benefits. For the period from July 8, 2009 to December 31, 2009, even if I were to assume that the Applicant met the requisite test for disability, I am unable to calculate an income replacement benefit in the absence of credible and sufficient evidence as to the income earned by the Applicant during this period.

I am not satisfied that I can rely upon the tax return for 2009 provided by the Applicant (showing income from employment of $2,858.70). No supporting documentation (such as T4s) has been provided and no Notice of Assessment for 2009 has been submitted. The evidence demonstrates that the Applicant did some work in a factory in 2009 and also began driving his truck again (earning up to $2,500 per month) at some point in 2009 but no documentation concerning those jobs or the income generated has been provided. As previously stated, there is some indication (from Dr. Badhwar) that the Applicant may have returned to full-time work by the summer of 2009 (if not earlier). Given the fact that the Applicant has testified that the income he earned prior to the accident was substantially greater than the income he reported to Canada Revenue Agency, I find that I cannot rely upon the Applicant’s 2009 income tax return without further supporting documentation and further particulars, which the Applicant has simply failed to produce without any explanation.

As for 2010, once again, I have difficulty relying solely upon the 2010 tax return without supporting documentation and further particulars. Nevertheless, even if I take the 2010 income tax return at face value, the Applicant’s reported income for 2010 was virtually identical to his reported annual income at the time of the accident. Limited as it may be, the Applicant’s own evidence suggests that he sustained no loss of income in 2010.

The Applicant’s counsel argues that it was reckless and unsafe of the Applicant to have been driving a truck after the 2009 accident because of lingering cognitive and psychological impairments and that, as a result, he ought to be found to be substantially disabled from truck driving regardless of the fact that he has been doing that type of work since the accident. Given my finding that the Applicant has failed to adduce sufficient evidence of loss of income to permit calculation of any income replacement benefit, I find it unnecessary to make a finding on the issue of whether the Applicant sustained the requisite level of impairment to qualify for income replacement benefits during the period of July 18, 2009 to January 17, 2011.

Post-104 Weeks

For the period from January 18, 2011 onwards, the onus is upon the Applicant to prove that he meets the threshold level of impairment to qualify for the benefits claimed (i.e., a complete inability to engage in any employment for which he is reasonably suited by education, training or experience) and to establish the quantum of the benefit to which he is entitled. Once again, I find that the Applicant has failed to meet his onus.

The Applicant has adduced no documentation concerning his income for 2011, 2012 or 2013. Statements made by the Applicant to health care professionals as to the extent of his work during this period have varied greatly. Based upon these various statements by the Applicant, during 2011, 2012 and 2013, the Applicant drove his truck between 25 and 50 hours per week, from 6 to 12 months each year.

The Applicant’s position is that he is still nervous when driving, especially on the highway, and that his cognitive and emotional impairments make it difficult for him to drive a truck for extended periods and long distances as he did prior to the accident of January 18, 2009. Nevertheless, the test for income replacement benefits after 104 weeks of disability is more stringent and is not necessarily tied to the work the Applicant was doing at the time of the accident.

From 2011 through 2013, the Applicant (according to his own reports) may have been working 50 hours each week, more or less continuously. According to other reports by the Applicant, at the very least, he worked 25 to 30 hours per week for 5 or 6 months each year. Given the conflicting reports of the Applicant, his vague testimony on this topic at the hearing and the lack of any documentation from either the Applicant or third parties regarding the Applicant’s post-accident employment, I am unable to get a clear picture of the Applicant’s work history subsequent to the January 2009 accident.

By 2011, the Applicant’s own assessor, Dr. Dhaliwal, concluded that the Applicant “... can work on any job he is qualified for ... [and] does not have any major psychiatric issues to prevent him from doing his previous job.”¹¹

The Applicant possesses education, training and experience in: agriculture; working with machinery; driving smaller as well as larger vehicles and making deliveries within the Greater Toronto Area; and factory work (including supervising others and doing quality control). Despite some lingering impairments, I find that the Applicant has demonstrated sufficient functional ability, motivation and endurance to work at a job that would pay at least as much as his reported pre-accident income. The Applicant has failed to prove that he has suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

Furthermore, the Applicant’s failure to provide particulars and documentation concerning his employment and income for 2011, 2012 and 2013 means that I am unable to determine whether he has sustained any loss of income or calculate an income replacement benefit. I am therefore unable to find that he is entitled to any income replacement benefit during this period.

IRBs -- Conclusion

For all of the foregoing reasons, the Applicant’s claim for income replacement benefits is dismissed.

Housekeeping and Home Maintenance Benefits

The Applicant has claimed payments for housekeeping and home maintenance services at the rate of $100.00 per week from January 19, 2009 onwards (less amounts paid).

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

The preponderance of the evidence suggests that the housekeeping and home maintenance services that the Applicant normally performed before the accident were extremely limited. His wife and mother-in-law were the household members who were primarily responsible for housekeeping prior to the accident. The Applicant’s usual responsibilities involved such things as cutting the grass, shovelling the snow and occasionally vacuuming, doing occasional repairs or otherwise helping his wife or mother-in-law if and when he was home and able.

It appears from the documents filed that the Insurer paid this benefit at the rate claimed ($100 per week) from January 19, 2009 through June 7, 2009. This benefit was terminated by the Insurer in June 2009 based upon:

1. the video surveillance of May 2009 (showing the Applicant on various dates, in various situations, moving with apparent ease and fluidity);

2. the report of Nanisa Kazim, O.T. dated June 1, 2009 (after her in-home assessment); and

3. the report of Dr. Trepanier (dated June 16, 2009), who found that the Applicant’s exaggeration of his symptoms made it impossible to validly assess his need for (amongst other things) housekeeping assistance.

Dr. Badhwar, chiropractor, issued a Disability Certificate on August 10, 2009 that indicated that the Applicant still required assistance with housekeeping and home maintenance. He wrote: “Patient has some difficulty with daily house chores and ADL’s, especially after a long day at work, due to his injuries creating pain and physical limitations”. On September 11, 2009, Dr. Langer (orthopaedic surgeon) also recommended housekeeping and home maintenance assistance but he relied entirely upon what he was told by the Applicant and apparently did not have access to any of the other existing reports or the surveillance evidence. In October 2009, Dr. Mossanen (neurologist) also suggested that the Applicant was unable to do his normal housekeeping and home maintenance chores. None of these medical professionals quantified a reasonable number of hours or value for this benefit.

In a report dated November 30, 2010, Nir Tamir, O.T., recommended 6 hours per week of housekeeping and home maintenance assistance. However, this time included some activities that either the Applicant demonstrated (in surveillance) that he was capable of doing around the time of this assessment (like grocery shopping) or which the Applicant has subsequently denied were part of his usual pre-accident duties.

In June 2012, Romy Berger, O.T., suggested that the Applicant required approximately 3 hours per week of housekeeping assistance with things such as vacuuming and snow removal as the Applicant reported being in too much pain to move a vacuum or shovel snow.

Surveillance evidence (including video recordings from May 2009, August 2010 and January 2011), however, clearly show the Applicant engaged in numerous, demanding physical activities, without any apparent difficulties or limitations. These activities include shovelling snow, attaching a tractor trailer to a cab, lifting his child with both arms and carrying him for a prolonged period in one arm and running after a runaway shopping cart. Having watched all of the surveillance evidence, I have no difficulty in concluding that, at all relevant times, the Applicant was capable of vacuuming, cutting the grass, taking out the trash or shovelling snow.

At the hearing, the Applicant did not testify as to the assistance (if any) that he required after the accident with housekeeping and home maintenance. He provided no particulars of the chores he was incapable of doing, who did those chores for him, what he had paid or promised to pay for those services and whether and in what way the situation may have changed over time. There was no evidence presented from any members of the Applicant’s household regarding the Applicant’s need for assistance in housekeeping and home maintenance. There was no testimony from anyone who provided housekeeping and home maintenance services to the Applicant.

Based upon the evidence before me, I find that the Applicant has failed to prove, on a balance of probabilities, that subsequent to June 2009, he sustained a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident. Therefore, this claim is also dismissed.

Attendant Care Benefits

Pursuant to section 16 of the Schedule, an insurer is required to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant (or services provided in a long-term care facility). The monthly amount payable for the attendant care benefit shall be determined in accordance with Form 1 (assessment of attendant care needs form).

The Applicant has claimed attendant care benefits as follows:

a. $6,000.00 per month (less amount paid) from January 19, 2009 to August 18, 2009 (in accordance with the Form 1 of Lyudmyla Havrylechko, R.N.); and

b. $1,582.55 per month from August 19, 2009 onwards (in accordance with the Form 1 of Dr. Pilowsky).

From the documents filed in this application, I conclude that the Insurer paid $6,000 per month in attendant care benefits for the period from January 19, 2009 through April 12, 2009 and $3,000 for the period of April 13, 2009 through May 10, 2009. The Insurer formally terminated payment of this benefit effective June 29, 2009, based upon:

1. the video surveillance of May 2009;
2. the report and Form 1 of Nanisa Kazim, O.T. dated June 1, 2009 (in which she concluded that no attendant care was required); and
3. the report of Dr. Trepanier (dated June 16, 2009), who found that the Applicant’s exaggeration of his symptoms made it impossible to validly assess his need for (amongst other things) attendant care.

The Insurer indicated that, based upon the surveillance evidence, it appeared that the Applicant did not require the level of supervision and assistance being claimed. It advised the Applicant that this type of benefit is meant to reimburse him for the expenses he has incurred and that if, for the period up to June 29, 2009, he was claiming any amounts over and above what the Insurer had already paid, the Applicant would have give to the Insurer details of the services provided to him during this period. I have no evidence that the Applicant ever provided those details to the Insurer.

On August 19, 2009, Dr. Pilowsky, psychologist, issued a Form 1 in the amount of $1,528.55 per month, together with a report explaining her conclusions. She diagnosed the Applicant with

post-traumatic stress disorder and major depressive disorder (moderate to severe) and recommended a neurological assessment. It is unclear what documentation, if any, was available to Dr. Pilowsky at the time of this assessment or whether she actually viewed the video surveillance of May 2009. There is no indication that she attended at the Applicant’s home or spoke with members of his household. From her report, it appears that Dr. Pilowsky relied entirely upon the subjective complaints of the Applicant. Dr. Pilowsky did not testify at this hearing. As pointed out in the written submissions of Insurer’s counsel, it appears that Dr. Pilowsky also made mathematical errors within the Form 1 so that the actual value of the services she was recommending ought to have been $1,229.88 per month.

In a report dated August 31, 2009, Dr. Trepanier criticized Dr. Pilowsky’s methodology, her failure to review available medical documentation, her failure to obtain valid and reliable psychological evidence or address the test results obtained by Dr. Trepanier, her failure to make behavioural observations, her reliance solely upon the Applicant’s subjective reports, her failure to utilize an interpreter and so on. In light of this report from Dr. Trepanier, the Insurer maintained its denial of attendant care benefits.

The Applicant then underwent a neurological assessment by a doctor of his choosing, Dr. Mossanen. The Applicant’s solicitor’s specifically requested Dr. Mossanen to provide a medical opinion as to whether attendant care services were reasonable and necessary for the Applicant. In Dr. Mossanen’s report of October 15, 2009, Dr. Mossanen responds as follows:

“It is my opinion that the client does not require attendant care services.”

In November 2010, the Applicant was seen by another occupational therapist, Nir Tamir to assess, amongst other things, his need for attendant care. Mr. Tamir concluded that due largely to cognitive deficits, the Applicant required $701.02 of monthly attendant care, as per the Form 1 of Mr. Tamir dated November 11, 2010.

The Insurer then had the Applicant assessed by Lori Foofat, O.T. The Applicant reported to Ms. Foofat being independent with respect to virtually all personal care tasks. Based upon this, and the Applicant’s refusal to participate in a number of functional tests, she was unable to conclude that any attendant care was reasonably required by the Applicant and she issued a report and Form 1 to this effect in February 2011.

In August 2011, one of the Applicant’s staunchest supporters, Dr. Connell, concluded that “there is no immediate need to provide attendant care...” In September 2011, another assessor of the Applicant’s choice, Dr. Dhaliwal, wrote that the Applicant had no major psychiatric disorder, that he was not depressed, that he was sleeping well, eating well and had good energy, that he had no problems with focus, communication or memory and that his wife said that he was functioning well at home.

In June 2012, the Applicant was assessed by another occupational therapist of his choice, Romy Berger, who prepared a report and Form 1 recommending monthly attendant care benefits in the amount of $492.78. This was later supported by Tanya Beatty, R.N. (in February 2013). It does not appear that the Insurer responded to this latest Form 1 or arranged for its own assessment of the Applicant’s attendant care needs (since its last assessment in February 2011).

There are several problems with the Form 1 prepared by Romy Berger. First, the allowance of 42 minutes per week to assist in walking is, according to the accompanying report, actually meant to cover the time someone might have to drive the Applicant to and from medical appointments that are approximately 80 kilometres from his home. I do not believe that such a transportation expense is properly claimed as an attendant care expense under the “mobility” heading of the Form 1. Second, it is suggested that the Applicant needs to have someone with him 2 hours per day to supervise and ensure his comfort and safety. This is claimed on the Form 1 under Part 2, Level 2, Hygiene, Bedroom. Once again, this appears to me to be a misclassification. This occupational therapist seems to be suggesting that the Applicant requires some sort of supervisory care. The problem is that none of the mental health professionals who have assessed the Applicant (including his own assessors) have concluded that he requires supervisory care. With respect to monitoring his medication intake and effect, neither the Applicant nor any member of his household testified concerning his need for assistance in this regard.

As noted at the beginning of this section, the Applicant’s counsel framed this claim for attendant care benefits as being a claim for $6,000.00 per month (less amount paid) from January 19, 2009 to August 18, 2009 and $1,582.55 per month from August 19, 2009 onwards. In reality, since there are four Form 1’s that were submitted to the Insurer, the Applicant’s claim for attendant care benefits ought to be framed as follows:

1. $6,000.00 per month (less amount paid) from January 19, 2009 to August 18, 2009 (in accordance with the Form 1 of Lyudmyla Havrylechko, R.N.);
2. $1,229.88 per month from August 19, 2009 to November 10, 2010 (in accordance with the Form 1 of Dr. Pilowsky, adjusted for computational errors);
3. $701.02 per month from November 11, 2010 to June 25, 2012 (in accordance with the Form 1 of Nir Tamir, O.T.); and
4. $492.78 per month from June 26, 2012 onwards (in accordance with the Form 1 of Romy Berger, O.T.).

Medical opinions as to the Applicant’s need (or lack thereof) for attendant care have been highly inconsistent. This is true even amongst the Applicant’s own assessors. This may reflect the different information being provided by or on behalf of the Applicant to the various assessors or may reflect the biases of those assessors.

For instance, the occupational therapists utilized by the Insurer (Ms. Kazim and Ms. Foofat), tended to focus on the Applicant’s physical functional capacity and perhaps failed to appreciate the subtle but significant impact that the Applicant’s brain injury may have had on his day-to- day functioning (especially the executive functions of his brain that impact on initiation, organization, persistence, etc.). This oversight appears later to have been recognized by Ms. Kazim.¹²

On the other hand, based upon his testimony before me (in particular, during his cross-examination), I conclude that Mr. Tamir assumed that the Applicant would require a considerable amount of attendant care simply because the Applicant had sustained a brain injury. Mr. Tamir had little evidence of the Applicant’s actual attendant care needs and relied upon subjective reports by the Applicant and test results that lacked validity measures. Mr. Tamir also testified that he would, for instance, recommend attendant care assistance for meal preparation even if an applicant had never done meal preparation prior to the accident; in other words, he either made no inquiry into the Applicant’s usual pre-accident activities and level of function or made his attendant care recommendations without any regard to the Applicant’s usual pre-accident activities and level of function.

In the light of the conflicting information and expert opinions concerning the Applicant’s need for attendant care and the problems I have identified with the various attendant care assessments, it would have been critical for me to hear cogent and credible testimony from the Applicant and members of his household as to the Applicant’s attendant care needs since the accident. In fact, there was no testimony during this hearing from the Applicant that suggested the Applicant required any attendant care during the period in question. No one else from the Applicant’s household testified.

In all the circumstances of this case and based upon the evidence before me, I find that the Applicant’s claim for attendant care benefits must be denied. He has simply failed to prove, on a balance of probabilities, the exact nature and extent of any attendant care services he reasonably required beyond what has already been provided for by the Insurer.

Medical Benefits

1. $10,259.19 for the cost of an in-home assessment and treatment recommended by Nir Tamir of Functionability Rehabilitation Inc. in a plan dated August 21, 2012

With respect to the treatment plan (Form OCF-18) by Nir Tamir, occupational therapist, dated August 21, 2012, recommending occupational therapy and assisted home exercises in the total sum of $10,259.19, the Insurer arranged for an occupational therapy in-home assessment by Nanisa Kazim on October 4, 2012. Based upon the opinion of Ms. Kazim, the Insurer denied this plan.

Ms. Kazim correctly pointed out that, by 2012, the Applicant had physically recovered from his accident-related injuries and that he was physically able to perform all or virtually all activities of daily living.

By the summer of 2012, the Applicant’s impairments were largely cognitive (problems with memory, concentration, speech, initiation, etc.). I cannot see how extensive in-home exercise, directed by an occupational therapist, was reasonable and necessary. Both the Applicant and Mr. Tamir testified during this proceeding but neither specifically addressed this treatment plan or the Applicant’s need, in the summer of 2012, for this type of physical rehabilitation.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed treatment was reasonable and necessary and this claim is dismissed.

2. $5,530.00 for the cost of social skills training recommended by Nir Tamir of Functionability Rehabilitation Inc. and Esmaeli Senedjani of F.O.R.S. in a plan dated November 8, 2012

The OCF-18 by Nir Tamir, occupational therapist, and Esmaeli Senedjani, social worker, dated November 8, 2012, recommends 12 two-hour sessions with a social worker at a total cost of $5,530.00. According to the proposal, these sessions were primarily meant to assist the Applicant with relaxation techniques and to assist with pain management.

The Insurer arranged for an assessment by Matt Viro, occupational therapist, who conducted an examination of the Applicant and authored a report dated December 13, 2012. In his report, Mr. Virro states as follows (at pages 8 and 9):

...When asked if he felt that could benefit from social skills training and if he would like the service, Mr. Grewal replied clearly that he thought not, that he does not feel he needs this service...

In my interview, there appeared to be no significant social work issues at play that are currently interfering with adjustment. There was no mention of adjustment issues to illness that warrant counselling or cognitive difficulties that interfere with day to day living. There are no family or psychosocial issues given what I heard was a stable family situation. There are no issues of personal abuse or neglect or social isolation or complex mental health issues...

The Social Worker, Ms. Senedjani, in her F.O.R.S. OCF-18 application says that Mr. Grewal has suffered 'much physical pain' following the accident. I found much less evidence for this in my interview and document review. He appears to be doing much better than four years ago. He is not taxed by pain and manages most activities of daily living without issue despite his ongoing anxiety and depression. Mr. Grewal’s self-rating of pain was three on a ten-point scale during my interview...

There is no expressed wish for the service from the claimant. There is no clear medical diagnosis as noted in Dr. Walsh’s Psychiatric Insurer Examination from November 6, 2012, that guides the proposed social work intervention. There is evidence that this man has been improving on a number of levels over the past year in terms of cognitive strengths, participation with activities of daily living and improved pain profile. He does not present in an interview with significant pain that would otherwise support a need for pain management. There are no compelling social work issues from my review that indicate psychotherapeutic intervention in the form of social skills training is reasonable and necessary. The Application provides insufficient explanation as to what would be provided in the 12, 2 hour sessions and what rationale supports the social work request beyond “improving current life experiences”.

Dr. Walsh in his Psychiatric Insurer Examination from November 2012, sets out recommendations that address this man’s current therapeutic needs. There are no references to social skills training needs in his recommendations.

Thus, Mr. Virro concluded that the treatment in question was not reasonable and necessary. Based upon this opinion, the Insurer denied this treatment plan.

There is no rebuttal to Mr. Virro’s report. Ms. Senedjani did not testify during this proceeding. Both the Applicant and Mr. Tamir testified before me but neither specifically addressed this treatment plan or the Applicant’s need, in late 2012, for the type of treatment recommended in this plan. No submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed treatment was reasonable and necessary and this claim is dismissed.

3. $56,600.00 U.S. for the cost of assessment and treatment recommended by Dr. Connell in a plan dated September 26, 2012

Dr. Stephen Connell, psychiatrist, met and assessed the Applicant in the summer of 2011. About one year later, Dr. Connell was provided with some additional documentation as to the Applicant’s current status and, based upon that documentation and a bit of research, Dr. Connell wrote a Supplementary Psychiatric Report dated August 14, 2012 in which he recommended intensive (45-day), residential, multidisciplinary neurorehabilitation to treat the Applicant’s co‑morbid traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD). Dr. Connell recommended treatment at the Sierra Tucson facility in the United States and submitted a treatment plan, dated September 26, 2012, in accordance with this report, at a total estimated cost of $56,655 USD.

The Applicant, during his testimony, did not address this proposed treatment. I do not know, for example, whether the Applicant has any interest in participating in the program at the Sierra Tucson facility.

Dr. Connell testified during this hearing. He stated that he was not aware of the existence in Canada of an integrated, customizable program designed to deal with multiple disorders similar to the one offered at the Sierra Tucson facility. He had heard of this facility through continuing education programs. Dr. Connell acknowledged in cross-examination that there are good chronic pain programs and acquired brain injury programs in Canada but, of the ones with which he is familiar, none can specifically deal effectively with both TBI and PTSD.

Dr. Connell has no personal experience with this facility and has never had a patient actually attend this facility (although he has recommended it). He has no hard data on the success rate of this facility. He relies upon the information available on the website for this facility and upon e‑mail communications he has had with this facility (appended to his report of August 14, 2012). He feels that, especially since the Applicant did not get the type of aggressive treatment for his brain injury that he probably ought to have received shortly after the accident, such an integrated, multi-disciplinary program is the last, best hope to maximize the Applicant’s recovery from his co-morbid PTSD and TBI.

The Insurer referred this issue to Dr. Walsh, psychiatrist, who met with the Applicant and authored a report dated November 16, 2012. Dr. Walsh felt that it was premature to send the Applicant for an intensive, residential program until there is a “firm diagnosis with respect to a traumatic brain injury.” Dr. Walsh suggested that, first, there ought to be an assessment by a neuropsychiatrist at one of the teaching hospitals’ Acquired Brain Injury Programs. Following such an assessment, the “matter of appropriate therapeutic intervention could then be revisited.” Based upon the report of Dr. Walsh, the Insurer denied this treatment plan.

In the face of this denial, the Applicant did not proceed with this proposed treatment.

According to the written submissions of Mr. Blouin, the Insurer is taking the position that the recommended treatment either is not reasonable and necessary or, in the alternative, that it is “experimental in nature” (and, therefore, is not payable pursuant to s. 14(3) of the Schedule).

The fact that Dr. Connell may not have personal experience with the program at Sierra Tucson does not mean that the services they provide are experimental in nature and there is no expert evidence before me to that effect. I therefore reject this argument advanced on behalf of the Insurer. The real issue here is whether the proposed treatment was reasonable and necessary at the time the plan was submitted.

I do not believe that Dr. Walsh is questioning whether the Applicant sustained a traumatic brain injury. Rather, I believe that Dr. Walsh is questioning the magnitude of that injury and the level of continuing impairment attributable to that injury. Unfortunately for the Applicant, the test results obtained by Dr. Trepanier were considered to be invalid (i.e., he failed to pass validity tests so the results from these tests cannot be relied upon). The test results obtained by Dr. Trepanier could not be explained by other experts, including Dr. Connell. These results, together with inconsistent reporting by the Applicant to various assessors could reflect a deliberate attempt by the Applicant to manipulate the assessors. On the other hand, it could also be a symptom of the Applicant’s cognitive and psychological impairments.

Dr. Walsh and other assessors have been looking for consistent and valid test results before deciding on an appropriate course of treatment. Dr. Walsh recommended an assessment by a neuropsychiatrist at one of the teaching hospitals' Acquired Brain Injury Programs. This seems to me to be a reasonable proposal.

I accept the opinion of Dr. Walsh that, before further, extensive treatment such as that proposed by Dr. Connell be undertaken, it is crucial to obtain current, valid neuropsychological test results for the Applicant.¹³ Once reliable results from such an assessment are obtained, the Applicant is free to submit a new treatment plan to the Insurer for whatever treatment his expert(s) deems to be reasonable and necessary.

4. $323.30 for the difference between the cost ($776.72) of assistive devices recommended by Integris Health Care in a plan dated March 5, 2009 and the amount approved by the Insurer ($453.42)

With respect to the OCF-18 by Luda Havrylechko, nurse, dated March 5, 2009, recommending various assistive devices, the Insurer approved all of the devices but found that the cost was not reasonable, in light of the cost of similar devices in the marketplace (specifically, as found on www.agtahomecare.com).

During this arbitration proceeding, no evidence (other than the form OCF-18) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to more than the amount approved by the Insurer.

5. $1,936.40 for the difference between the cost ($3,415.32) of treatment recommended by Healthy Lifestyle in a plan dated April 15, 2009 and the amount approved by the Insurer ($1,478.92)

With respect to the OCF-18 by Dr. Badhar, chiroprator, dated April 15, 2009, proposing physiotherapy, chiropractic treatment and other forms of rehabilitation, the Insurer referred the request to Dr. Milne, chiropractor, who conducted a physical examination of the Applicant and authored a report dated July 20, 2009. Dr. Milne expressed the opinion that the treatment plan in question was partially reasonable and necessary, favouring the active over passive modalities since passive therapy was “enabling this patient’s pain focus and not progressing this patient subjectively or objectively”. The Insurer partially approved the plan, agreeing to pay $1,478.92, in accordance with the advice of Dr. Milne.

During this arbitration proceeding, no evidence (other than the form OCF-18) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to more than the amount approved by the Insurer.

6. $1,464.46 for the difference between the cost ($5,244.56) of treatment recommended by Healthy Lifestyle in a plan dated February 4, 2009 and the amount approved by the Insurer ($3,780.10)

With respect to the OCF-18 by Dr. Badhar, chiropractor, dated February 4, 2009, proposing physiotherapy, chiropractic treatment and other forms of rehabilitation (at a total cost of $5,244.56), the Insurer approved, in principle, all of the proposed goods and services (except transportation). However, the amount approved by the Insurer was based on the maximum hourly rates for treatment of non-catastrophic impairments. Thus, the Insurer partially approved this plan in the total amount of $3,780.10.

The adjuster’s explanation for denying the cost ($432.00) of the Applicant taking a taxi to and from treatment sessions is that “transportation costs are paid at $0.34 per km after the first 50km and therefore transportation for this Treatment Plan will not be considered” (emphasis added). It therefore seems that transportation costs were denied because the round-trip distance was less than 50 kilometres and the Insurer was applying the 50 kilometre “deductible” set out in clauses 14(6)(b), 15(12)(b) and 24(4)(b) of the Schedule (as further described in the Revised Transportation Expense Guideline (No. 03/06)).

With respect to this transportation expense, the 50 kilometre “deductible” does not apply to an insured person who has sustained a catastrophic impairment. Once it was determined that the Applicant had sustained a catastrophic impairment, the Insurer ought to have revisited this issue. Given the extent of the Applicant’s injuries, the fact that he had suffered a seizure and was being advised not to drive and that this plan was being proposed within weeks of the accident, it seems reasonable to me to suggest that the Applicant be transported by taxi rather than using his own vehicle. The transportation expense therefore seems reasonable to me and payable under the Schedule for a person, such as the Applicant, who sustained a catastrophic impairment.

With respect to the hourly rates approved by the Insurer, once again the Insurer erred by using rates that were applicable to non-catastrophic cases. Different, higher maximum rates are established for persons who sustain catastrophic impairments. These are set out in the Professional Service Guideline (Superintendent’s Guideline No. 01/08) and apply “whether such services are rendered before or after such determination [that the impairment is a catastrophic impairment] is made.”

Based upon the maximum rates permitted for treating a person who has sustained a catastrophic impairment and allowing for the reasonable transportation expense claimed, I find that the amount that ought to have been approved by the Insurer is $5,244.56 (i.e., the amount set out in the treatment plan).

Therefore, the Insurer must pay up to $5,244.56 for all goods and services provided pursuant to this treatment plan. Interest will run on any overdue amounts pursuant to sections 38(17.2) and 46 of the Schedule.

7. $954.80 for the cost of devices recommended by Fundamental Assessment Centre in a plan dated May 12, 2009

Dr. Jonathan Wong, chiropractor, conducted an in-home assessment on May 11, 2009. On May 12, 2009, he issued a report as well as a treatment plan (OCF-18). The treatment plan recommended further assistive devices (cervical water pillow, electric heating pad, long-handled shoe horn, Obus form low back support, step stool and ergonomic laundry bag) as well as an education session and other associated expenses. The total proposed cost was $954.80. The Insurer referred the request to Ms. Nanisa Kazim, occupational therapist, who conducted an in-home assessment on June 1, 2009.

Ms. Kazim noted that the Applicant already possessed a cervical pillow and back support cushion. Based upon her observations of him in person and after observing him on surveillance footage she concluded that his reaching and bending was not compromised to the point that he required a step stool. She agreed that a heating pad to manage pain, a long-handled shoe horn to enable independent dressing and an ergonomic laundry bag to facilitate doing laundry were all reasonable. She noted, however, that these were simple devices that did not require setup or instruction; therefore, in her opinion, no education session would be required. In accordance with Ms. Kazim’s recommendations, the Insurer partially approved the plan for the specific items that Ms. Kazim found to be reasonable.

During this arbitration proceeding, no evidence (other than the form OCF-18 and report of Dr. Wong dated May 12, 2009) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to any compensation with respect to this treatment plan.

h. $2,800.00 for TMJ oral treatment by Dr. Goldberg in a plan dated September 1, 2009

With respect to the OCF-18 treatment plan by Dr. Y.K. Goldberg, dentist, dated September 1, 2009 in the sum of $2,800.00, the Insurer referred this matter to Dr. Eli Shem-Tov, dentist, who examined the Applicant on October 21, 2009. Dr. Shem-Tov, concluded as follows:

It is my opinion based on my review of the extensive documentation, my clinical examination, panoramic x-ray, the verbal history of Mr. Grewal [through a Punjabi interpreter] and his denial of any pain or discomfort to his T.M. joints that the OCF 18 Treatment Plan by Dr. Y.K. Goldberg dated September 1, 2009 is not reasonable and necessary as a result of the MVA January 18, 2009.

In short, the Applicant denied any pain or other symptoms associated with a TMJ problem and there was no objective evidence of any TMJ abnormality that required treatment. Based upon the opinion of Dr. Shem-Tov, the Insurer denied this treatment plan.

During this arbitration proceeding, no evidence (other than the form OCF-18) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed treatment was reasonable and necessary and this claim is dismissed.

i. $538.99 for the difference between the cost ($1,149.19) of a gym membership and Lumosity membership recommended by Romy Berger of Beverlee C. Melamed & Associates Inc. in a plan dated November 21, 2012 and the amount approved by the Insurer ($610.20)

In a plan dated November 21, 2012, Romy Berger, occupational therapist recommended one year’s membership at LA Fitness ($540.00), a lifetime on-line membership to Lumosity.com (to stimulate the Applicant’s cognitive functioning -- $299.99) and $200.00 for documentation. The total cost of this plan was $1,149.19. The Insurer referred the request to Ms. Nanisa Kazim, occupational therapist, who conducted a paper review. Ms. Kazim supported the idea of the Applicant being provided with a membership to a gym ($540.00 plus HST = $610.20). She, however, did not support the membership to Lumosity.com due largely to lack of scientific evidence that engaging in such “brain games” was more beneficial to a person with mild to moderate brain damage than engaging in normal real-world activities.

In accordance with the opinion of Ms. Kazim, the Insurer partially approved this plan in the amount of $610.20.

During this arbitration proceeding, no evidence (other than the form OCF-18) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to more than the amount approved by the Insurer.

Cost of Assessments

1. $1,541.00 for the cost of a social work assessment recommended by Progressive Social Reintegration in a plan dated July 9, 2009

Sharleen Cainer, social worker, in a plan dated July 9, 2009, proposed a social work assessment and submitted an application for approval of this assessment. The proposed cost of this assessment was $1,541.00.

The Insurer had a different social worker, Matt Viro, review this proposal (OCF-22) by way of paper review. Matt Viro found that the proposal did not provide any particulars of social or family issues being experienced by the Applicant at that time that would justify a social work assessment. He also noted that there was no indication that Ms. Cainer had communicated in any way with the Applicant in order to gather relevant information through some sort of pre-assessment screening or interview. For these reasons, Mr. Viro found that the proposed assessment was not reasonable and necessary and, based upon his opinion, the Insurer denied this claim.

During this arbitration proceeding, no evidence (other than the form OCF-22) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed assessment was reasonable and necessary and this claim is dismissed.

2. $1,000.00 for the difference between the cost ($1,800.00) of a TMJ assessment recommended by Dr. Goldberg in a plan dated July 8, 2009 and the amount approved by the Insurer ($800.00)

With respect to the OCF-22 by Dr. Y.K. Goldberg, dentist, dated July 8, 2009, proposing a comprehensive dental assessment, the Insurer referred the request to Dr. Albert Taliano, dentist, who conducted a paper review and authored a report dated July 22, 2009. Dr. Taliano expressed the opinion that, while the assessment was reasonable, the cost was not, and that a reasonable cost would be in the range of $700.00 to $800.00. As a result, the Insurer approved up to $800.00 for that assessment.

During this arbitration proceeding, no evidence (other than the form OCF-22) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to more than the amount approved by the Insurer.

3. $2,302.00 for a neurological assessment recommended by Specialist Group Inc. in a plan dated July 10, 2009

In a Form OCF-22 dated July 10, 2009, Dr. Lance Majl requested approval for a neurological assessment of the Applicant at a cost of $2,302.00. This request was referred by the Insurer to Dr. Tyndel, neurologist for an independent opinion. Dr. Tyndel noted that the results of a neurological examination by Dr. Ozkowski on June 2, 2009 were normal. Dr. Tyndel also pointed out that a private neurological examination was unnecessary at that time (July 2009) as the Applicant was still being followed by neurologists from Hamilton General Hospital who were planning to obtain an MRI and do a further follow-up neurological examination. As a result, the Insurer denied this plan as not being reasonable and necessary at the time.

During this arbitration proceeding, no evidence (other than the form OCF-22) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that the disputed assessment was reasonable and necessary and this claim is dismissed.

4. $902.00 for the difference between the cost ($2,302.00) of an orthopaedic assessment recommended by Specialist Group Inc. in a plan dated July 10, 2009 and the amount approved by the Insurer ($1,400.00)

With respect to the OCF-22 by Dr. Fred Langer, orthopaedic surgeon, dated July 10, 2009, proposing an orthopaedic examination, the Insurer referred the request to Dr. Samuel Soriano, orthopaedic surgeon, who conducted a paper review and authored a report dated July 29, 2009. Dr. Soriano expressed the opinion that, while the assessment was reasonable, the cost was not, and that a reasonable cost for such an assessment would be $1,400.00. As a result, the Insurer approved an orthopaedic assessment, at a cost of up to $1,400.00.

During this arbitration proceeding, no evidence (other than the form OCF-22) was led by the Applicant with respect to this issue and no submissions were made concerning this issue by counsel for the Applicant.

I find that the Applicant has failed to adduce sufficient evidence to prove, on a balance of probabilities, that he is entitled to more than the amount approved by the Insurer.

SPECIAL AWARD:

The Applicant has claimed a special award in this case. Pursuant to subsection 282(10) of the Insurance Act, an insurer can be ordered to pay a special award where the insurer unreasonably withheld or delayed payments to the applicant. The maximum amount of a special award is based both upon the amount of benefits that were unreasonably withheld or delayed and the length of time that payment of the benefits was withheld or delayed. It is within the discretion of the presiding arbitrator to decide the appropriate quantum of any special award, up to the maximum amount permitted by law.

In this case, the Applicant was only successful on one issue. I found that the Insurer was wrong to have approved, at only the non-catastrophic rates, the goods and services recommended in the plan from Dr. Badhar of Healthy Lifestyle dated February 4, 2009. I also found that the Insurer erred in denying the request for expenses related to transporting the Applicant by taxi to and from treatment. While the Insurer’s position may have been reasonable at the time the plan was submitted, it was wrong of the Insurer not to have revisited this issue once it was determined that the Applicant had sustained a catastrophic impairment (which ought to have been clear to the Insurer based upon reports from its own assessor, Dr. Trepanier, in May and September 2009). Ultimately, the Insurer ought to have approved this treatment plan for the full amount, as submitted.

The Applicant made no submissions specifically concerning this treatment plan or why, in all the circumstances of this case, the Insurer’s partial (as opposed to complete) approval of this treatment plan would justify the granting of a special award. Although I have found that the Insurer was wrong on this issue, I am not satisfied based upon the scant evidence presented that, with respect to this plan, the Insurer unreasonably withheld or delayed payments to the Applicant. I do not even know if any invoices related to this plan were ever submitted to the Insurer.

For these reasons, no special award shall be granted in this case.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request to me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

August 7, 2014

Richard Feldman

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2014 ONFSCDRS 126

FSCO A09-002980

BETWEEN:

BHUPINDER SINGH GREWAL

Applicant

and

AIG COMMERCIAL 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. The Insurer shall pay up to $5,244.56 for all goods and services provided to the Applicant pursuant to the treatment plan of Dr. Badhar from Healthy Lifestyle dated February 4, 2009 (less amounts, if any, already paid by the Insurer for goods or services pursuant to this treatment plan).

2. The Insurer shall pay interest on all overdue amounts in accordance with the Schedule.

3. With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request to me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

4. Except as provided above, all other claims of the Applicant are dismissed.

August 7, 2014

Richard Feldman

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2although the unaudited financial statements from this company show a considerably smaller annual gross income and the Applicant's income, as reported to Canada Revenue Agency, was smaller still.
3. 3like the fact that he had returned to work as a truck driver some time in 2009 (which the Insurer only discovered in May 2010, through further surveillance).
4. 4although, according to the Applicant, his corporation billed Trans 4 Logistics for his services and he was an employee of his corporation and not of Trans 4 Logistics.
5. 5RBC General Insurance Company and Antony (FSCO Appeal P03-00023, July 22, 2004) and Gadacz and ING Insurance Company of Canada (FSCO A07-000276, September 21, 2007).
6. 6his own assessor, Dr. Pilowsky, psychologist, in May 2009.
7. 7In fact, this re-election may put the Insurer in a better position. First, the weekly amount being claimed by the Applicant effectively decreases from $300.00 per week to $183.00 per week (since the actual tax return for 2008 shows the Applicant's gross income for 2008 was only $13,000 and not $48,000, as he advised the Insurer only a few months earlier). Second, the timing and circumstances surrounding this re-election may raise further questions about the Applicant's credibility.
8. 8Net income from self-employment is calculated in a somewhat different fashion (s. 6(4)).
9. 9Until two years of impairment, at which time, if the Applicant continues to qualify for income replacement benefits, the minimum amount payable is $185.00 per week (para. 6(1)(b) of the Schedule).
10. 10Dr. Badhwar, chiropractor, issued a Disability Certificate on August 10, 2009 that indicated that the Applicant still required assistance with housekeeping and home maintenance. He wrote: "Patient has some difficulty with daily house chores and ADL's, especially after a long day at work, due to his injuries creating pain and physical limitations." (emphasis added)
11. 11Report of Dr. Dhaliwal, dated September 21, 2011.
12. 12In her report of November 27, 2013, Ms. Kazim notes that she observed the Applicant experiencing problems with attention, engagement and mental fatigue.
13. 13In October 2012, the Insurer approved a plan for a new neuropsychological assessment by Dr. Young. Dr. Young, however, did not prepare a report until September 10, 2013. The Insurer objected to the introduction of this report into evidence at this proceeding because this report was not delivered to the Insurer at least 30 days prior to the commencement of this hearing (as required by Rule 39.1 of the Dispute Resolution Practice Code). The Applicant was unable to demonstrate extraordinary circumstances justifying the admission of such late evidence (pursuant to Rule 39.2 of the Dispute Resolution Practice Code). I therefore did not grant permission to the Applicant to file the report of Dr. Young as evidence in this proceeding.