Cathy Roberts v. Gore Mutual Insurance Company, 2014 ONFSCDRS 61

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 61

FSCO A11-003986

BETWEEN:

CATHY ROBERTS

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Edward Lee

Heard: May 14, 15, 16, and 17, 2013 in Kingston

Appearances: Frank Van Dyke for Ms. Roberts

Dana R. Spadafina for Gore Mutual Insurance Company

Issues:

The Applicant, Cathy Roberts, was injured in a motor vehicle accident on February 19, 2007. She claims the accident caused her to sustain an impairment that resulted in a class 4 impairment (marked impairment) due to a mental or behavioural disorder and, as a result, she is catastrophically impaired pursuant to section 2(f) of the Schedule.¹ She also claimed other statutory accident benefits from Gore Mutual Insurance Company (“Gore Mutual”). On October 26, 2010 and April 11, 2013, she applied to Gore Mutual for determinations of catastrophic impairment. Gore Mutual has concluded that Ms. Roberts was not catastrophically impaired as a result of the accident.

The issues in this hearing are:

1. Has Ms. Roberts suffered a catastrophic impairment?

2. Is Ms. Roberts entitled to attendant care benefits in the amount of $334.45 per month from December 10, 2009 to date on ongoing?

3. Is Ms. Roberts entitled to payments of $100.00 per week from February 19, 2009 to date and ongoing for housekeeping and home maintenance services?

4. Is Ms. Roberts entitled to Income Replacement Benefits of $400.00 per week from June 10, 2009 to date and ongoing?

5. Is Ms. Roberts entitled to the four massage therapy treatment plans of $1,150.00, $1,150.00, $722.10, and $1,200.00?

6. Is Ms. Roberts entitled to receive physiotherapy treatment in the amounts of $998.55, and $2,431.68?

7. Is Ms. Roberts entitled to receive occupational therapy services of $1,536.94?

8. Is Ms. Roberts entitled to payment for the costs of examinations in the amounts of $3,500.00 to $5,000.00 for a neuro-psychological assessment?

9. Is Ms. Roberts entitled to $456.51 and $4,665.83 for speech therapy services?

10. Is Ms. Roberts entitled to payment of $6,000.00 for a service dog recommended by Dr. Harris in a treatment plan dated August 10, 2010?

11. Is Ms. Roberts entitled to receive a medical benefit of $1,000.00 and $2,000.00 for the psychological therapy?

12. Is Ms. Roberts entitled to $23.70 for prescription medication?

13. Is Ms. Roberts entitled to a special award?

14. Is Ms. Roberts entitled to interest on the overdue payment of benefits?

15. Which party is entitled to the expenses in respect of the arbitration?

Result:

1. Ms. Roberts has not suffered a catastrophic impairment.

2. Ms. Roberts is not entitled to attendant care benefits in the amount of $334.45 per month from December 10, 2009 to date on ongoing.

3. Ms. Roberts is not entitled to payments of $100.00 per week from February 19, 2009 to date and ongoing for housekeeping and home maintenance services.

4. Ms. Roberts is not entitled to Income Replacement Benefits of $400.00 per week from June 10, 2009 to date and ongoing.

5. Ms. Roberts is entitled to the four massage therapy treatment plans of $1,150.00, $1,150.00, $722.10, and $1,200.00.

6. Ms. Roberts is entitled to receive physiotherapy treatment in the amounts of $998.55, and $2,431.68.

7. Ms. Roberts is not entitled to receive occupational therapy services of $1,536.94.

8. Ms. Roberts is entitled to payment for the costs of examinations in the amounts of $3,500.00 to $5,000.00 for a neuro-psychological assessment.

9. Ms. Roberts is entitled to $456.51 and $4,665.83 for speech therapy services.

10. Ms. Roberts is not entitled to payment of $6,000.00 for a service dog recommended by Dr. Harris in a treatment plan dated August 10, 2010.

11. Ms. Roberts is entitled to receive a medical benefit of $1,000.00 and $2,000.00 for the psychological therapy.

12. Ms. Roberts is entitled to $23.70 for prescription medication.

13. Ms. Roberts is entitled to a special award for the unreasonable delay or denial of payments for the neuro-psychological assessment and psychological therapy.

14. Ms. Roberts is entitled to interest on the overdue payment of benefits.

15. This item will be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code, if necessary.

OVERVIEW ON CATASTROPHIC IMPAIRMENT:

The determination as to whether Ms. Roberts suffered a catastrophic impairment as a result of the accident was complicated by her numerous pre-existing conditions and because she had significant functional limitations before the accident.

Ms. Roberts claimed she suffered a mental or behavioural disorder because of her car accident, which markedly impaired her activities of daily living, her activities at work, and her social functioning. As a result, she could no longer perform her job, many of her housekeeping and home maintenance functions, and other activities. She developed severe depression, agoraphobia, post traumatic stress disorder, and difficulties with concentration, word loss, memory, numerical calculation, and sleep. She also lost control of her fine motor skills and could no longer enjoy many of her pre-accident leisure activities.

In response, Gore Mutual claimed that Ms. Roberts had already been diagnosed for a mental or behavioural disorder before her 2007 car accident, and her current problems were not caused by this accident. At the time of the accident, Ms. Roberts was receiving treatment from a psychotherapist, and her work situation, activities of daily living, and home life had already been negatively impacted by her many pre-accident mental and physical health conditions, which may have been caused by two car accidents that occurred in 2000, and at least one previous work-related accident.² Finally, Gore Mutual also argued that even if the 2007 accident caused Ms. Roberts to develop a mental or behavioural disorder, any impairment she suffered was moderate, and not marked, and therefore did not meet the definition of catastrophic impairment.

(1) Is Ms. Roberts catastrophically impaired as a result of the accident?

Test to be Met:

Under section 2(2.1)(g) of the Schedule, a catastrophic impairment is an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (“Guides”) results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.

The jurisprudence has also held that a determination of catastrophic impairment may be made if a person is assessed to have a marked impairment in one of the four categories of functional limitation set out in the Guides.³

The dispute can thus be distilled to the following questions:⁴

i. Does Ms. Roberts suffer from a mental or behavioural disorder?

ii. Was this mental or behavioural disorder caused by the accident?

iii. If yes, what is the impact of the mental or behavioural disorder(s) on her daily life?

iv. In view of the impact, what is the level or severity of impairment?

i. Does Ms. Roberts suffer from a mental or behavioural disorder?

I am convinced that Ms. Roberts suffers from a mental or behavioural disorder. This was the opinion of almost every medical examiner.⁵

ii. Was the mental or behavioural disorder caused by the accident?

An applicant need not prove that the accident was the sole cause of her injuries. The applicant needs only prove that the accident was a material contributor to her injuries.⁶

In the present case, Ms. Roberts had been diagnosed with fibromyalgia⁷ and General Anxiety Disorder before the 2007 accident.⁸ It was also indisputable that Ms. Roberts had a very significant pre-2007 medical history and that many of her present complaints were no different from those documented as early as 2000. The persistence of those complaints in her medical record convinces me that many of the medical and psychological sequaelae from her pre-2007 accidents and conditions have never completely resolved. This conclusion is supported by Dr. O’Donnell, Ms. Roberts’ family doctor since 1994, who stated that it was not possible to distinguish how much of her current symptomology was due to her previous conditions.⁹

Despite this, I am not convinced that all of Ms. Roberts’ current symptomology is attributable to the sequaelae from her past car accidents, work-related accident, other medical problems, and psychological issues. Some of her impairments are exacerbations of previous injuries and symptoms or appear to have emerged only since the 2007 car accident.

Dr. O’Donnell makes this comment:

Ms. Roberts has a long-standing history of generalized anxiety disorder and was receiving treatment for this prior to the MVA. However, she exhibited symptoms including cognitive changes tinnitus and sleep disturbances including sleep walking and nightmares following the accident and clearly related to it.

It is not possible for me to say how much bearing her generalized anxiety disorder has on her cognitive symptoms. However these symptoms were not present prior to her accident and are clearly related to it. They are no doubt further exacerbated by her post traumatic stress disorder.

I feel that Ms. Roberts’ musculoskeletal symptoms and her cognitive dysfunction are a direct result of the motor vehicle accident. [italics mine]¹⁰

Moreover, I note that most examiners, including Dr. Brian Hines, who prepared a catastrophic assessment report for the insurer, diagnosed Ms. Roberts with depression (in addition to other conditions), either a Major Depressive Episode, or an Adjustment Disorder with Mixed Anxiety and Depressed Mood.¹¹

This is significant because Ms. Roberts had not been diagnosed with depression before the 2007 accident.

Dr. Duncan Day, psychologist, conducted a psychological assessment and testing at the request of the Insurer on September 6, 2012. He diagnosed Ms. Roberts with mental and behavioural disorders and concluded that she had suffered a psychological impairment as a result of the injuries sustained in the accident. The diagnoses were as follows:

Pain Disorder Associated with Both Psychological factors and a general medical condition (headaches)

Post-traumatic Stress disorder, chronic

Generalized anxiety disorder

Panic disorder with agoraphobia

Major Depressive Episode, severe without Psychotic features

1. Has the claimant suffered a psychological impairment as a result of the injuries sustained in the motor vehicle accident? If so, what is the impairment?

Yes. Please see the description of finding and the DSM IV diagnoses offered in the Clinical Formulation section above.¹²

Dr. James Muirhead, psychologist, also examined Ms. Roberts at the request of the Insurer on October 20, 2010. He made the following conclusions:

Her symptom presentation is consistent with a previous diagnosis of Post-Traumatic Stress disorder, Mild Acquired Brain injury, Generalized Anxiety Disorder, panic Disorder with Agoraphobia and Depression… It is clear from this psychological assessment that Ms. Roberts continues to suffer from PSTD. She has developed a serious anxiety disorder with compulsive ritualistic behaviours and agoraphobia. She describes a significant sense of loss of worth and embarrassment from her decline in cognitive function. All are the result of the MVA of February 19, 2007 [emphasis mine]¹³

Dr. Irwin Altrows, psychologist, assessed Ms. Roberts at the request of the Insurer on March 24, 2009. He made the following conclusions:

1. Has the claimant suffered impairment as a direct result of the motor vehicle accident? If so, what is your diagnosis?

Yes, she has suffered significant impairment in the areas of work, socialization, and activities of daily living as a direct result of the motor vehicle accident. My diagnoses are:

F43.1 Post-traumatic stress disorder, Chronic

F41.1 Generalized Anxiety Disorder

F40.01 Panic Disorder with Agoraphobia

F32.2 Major Depressive Episode, Single Episode, Severe without Psychotic features¹⁴

Although for reasons I will detail later, I do not accept every conclusion in these reports, I find they support a conclusion that the 2007 accident was a material contributor to her depression, whether classified as a major depressive episode¹⁵, or as an Adjustment Disorder with Anxiety and Mixed Depressed Mood.¹⁶

In testimony, Ms. Roberts spoke of her feelings of helplessness and worthlessness after the 2007 accident. I found this part of her testimony credible, and I am convinced that she became depressed or more depressed following the 2007 accident, partially because of actual or perceived cognitive difficulties she experienced following that accident.

I therefore find the 2007 accident was the cause of this mental or behavioural disorder.

iii. What is the impact of the mental or behavioural disorder on her daily life?

The Guides direct the assessment of the impact of the mental or behavioural disorder in the following four areas of function:

(1) activities of daily living;

(2) Social functioning;

(3) Concentration, persistence and pace; and

(4) Deterioration or decompensation in work or worklike settings.

In the present case, the medical examiners were unanimous in determining that Ms. Roberts’ mental or behavioural disorder had an impact on at least one, if not more, of these four areas. The only question was whether the impact of the disorder was marked or moderate.

iv. In view of the impact, what was the severity of the mental or behavioural disorder on Ms. Roberts?

To determine the level of impact, it is necessary to examine Ms. Roberts’ usual and normal life activities before and after the 2007 accident.

The evidence presented at the hearing included Ms. Roberts’ testimony, her work history, evidence from treating and examining practitioners, and that of her children, Heather and Colin.

(a) Ms. Roberts’ testimony:

Overall, I found Ms. Roberts unreliable and not credible as a witness. Her testimony was that her mental and behavioural disorder impacted on virtually every aspect of the four areas of function, but I found she inaccurately described the nature and level of her usual and normal activities before the 2007 accident. She minimized or discounted her pre-accident limitations and problems. She did not remember or seemed to have little or no objective understanding of her physical and mental state before her 2007 accident.

(i) Work related activities

She had been employed as a public servant with the Government of Ontario for over twenty years. In her most recent position as a financial officer, she worked with spreadsheets, balance sheets, invoices, and reconciled expenses and purchases. She dealt with contracting and negotiations. She stated that after her accident, she “lost her numbers”, suffered from memory loss, loss of words, and developed difficulties with verbal communication. She became unable to perform her work, which was re-assigned to other employees.

At the hearing, Ms. Roberts had little or no problem with verbal expression. She testified at length, and was permitted breaks when needed to refresh or compose herself. I found that Ms. Roberts spoke fluidly and expansively without undue direction or coaching. There was no sign of memory loss or the loss of words, which she complained were results of the 2007 accident.

Only in cross-examination did Ms. Roberts seem to suffer loss of memory. She often did not remember, or had no intelligible response when presented with questions, evidence, or testimony that apparently contradicted her testimony-in-chief, especially in regard to her work history.

For instance, although Ms. Roberts spoke at length about her exemplary job performance, functions, and duties, she had no answer and provided little or no detail about the many long periods during which she could work only modified or part-time work hours, her long and frequent absences from work, her work-related accident (for which she filed a WSIB claim), and the grievances¹⁷ in which she had been involved at her work place.

In fact, in the period before September 2006, Ms. Roberts had been working only mornings at the Ministry of the Environment. Further accommodations were then sought, supported by medical evidence provided by her family practitioner, Dr. O’Donnell, who made the following statements:

Although Ms, Roberts is undergoing treatment for her condition(s) prognosis for significant improvement is poor even in the long term

As a result of Ms Roberts medical conditions accommodations at her workplace as needed:

-Modified work hours working mornings only

-No reception work

-Workplace accommodation requires a separate office which does not a cubicle(sic)

Limitations

Pain—not sitting for prolonged periods of time without the ability to move around. Bending twisting lifting limited needs to be able to close off noise from outside work environment

Is the employee’s medical condition(s) permanent or temporary in nature?

Permanent

Is the employee receiving any type of treatment for the medical condition(s)?

Yes. Treatment required for a life-long period. [Italics mine]¹⁸

Ms. Roberts received further modifications of her work as result of this report, and commenced working from home, four hours a day. Significantly, she was not required to work the full 7.25 hours/day (as she was already working only half days), despite being away from the noise of which she complained at her place of work.

Thus it is clear that as of September 2006, some five or six months before her February 2007 accident, Ms. Roberts’ family practitioner had already concluded Ms. Roberts was suffering from medical conditions that were “permanent” with a “poor prognosis in the long term”, and had a significant impact on her ability to perform full-time work. Her physical status, including the ability to bend, lift and twist, were “limited.” She would need treatment for a “life-long period.”

I will discuss Ms. Roberts’ work performance in further detail in the section dealing with her claim for Income Replacement Benefits.

(ii) Physical and mental health and activities:

In regard to her pre-2007 health, Ms. Roberts described herself as having been “in good shape, because I had balance.” She testified that she had been swimming 2-3 times a week for an hour a session, and had been doing volunteer work, and raising two kids. She had been singing in a choir. She had purchased new books for fun, quilted, played basketball and swam competitively. Further, the psychological issues she had commenced to address immediately before her 2007 accident had had no impact on her mental health or functioning. In sum, the physical and mental problems she had suffered pre-2007, including Generalized Anxiety Disorder, and fibromyalgia, with which she had been diagnosed well before the accident, had not upset her “balance.”

I found that Ms. Roberts exaggerated or mischaracterized the state of her pre-2007 mental and physical health. For instance, she testified about her competitive swimming as though it had been a recent pastime curtailed by her 2007 accident, but on cross-examination it was revealed that she had not been a competitive swimmer since 1986. That was also the last time she had taught swimming to children.

Further, the medical evidence showed that as early as 2000, she had curtailed her swimming as a result of two previous car accidents.¹⁹ At that time, pain to her legs and low back also curtailed her roller blading, biking and skating, as well as her sewing and quilting. She was also unable to do gardening, housekeeping or home maintenance.²⁰

Although she returned to swimming in 2001,²¹ this activity and any exercise were again curtailed in March 2003 due to more complaints of low back pain, spinal stenosis, and bulging discs in her spine.²² There was no corroborating evidence that she ever again resumed swimming, except for indications that she had begun to consider swimming again in the fall of 2006 leading up to the February 2007 accident.²³ Nonetheless, the only record that suggests she ever swam again was made in March 2007, after the accident of February 2007.²⁴ Thus, I gave little or no weight to her statements that the 2007 accident had curtailed or reduced her swimming and other physical activities.

In addition, a non-exhaustive survey of Ms. Roberts’ pre-accident medical history (gleaned from the notes of her general practitioner, Dr. O’Donnell, disclosed from 2000 onward; and the notes of her treating psychologist) reveals persistent, and in many cases, long-term complaints and treatment provided for the following conditions: low back pain²⁵, pain in her neck²⁶, pain in right and left shoulders²⁷, hip, knees and legs²⁸, wrists²⁹, hands and forearms.³⁰ Ms. Roberts complained of carpal tunnel syndrome³¹, and made persistent complaints about fatigue³², headaches and migraines³³, nightmares, sleeplessness³⁴, and agoraphobia. She had been diagnosed with spinal stenosis³⁵, degenerative disc disease³⁶, bulging discs³⁷, post-traumatic stress disorder, and fibromyalgia³⁸. She suffered from anxiety³⁹, panic attacks⁴⁰, and stress⁴¹. Some of these injuries, symptoms, and conditions were attributed to two previous car accidents that occurred in 2000, and to a work-related accident for which she filed a WSIB claim.

In regard to her mental state, I did not accept her testimony that her recent psychological investigations had not affected her balance. During the ten months leading up to the 2007 accident (and for months after), she was undergoing intense psychotherapy to address difficult psychological issues arising from her childhood and from a previous relationship. A review of the notes of her psychotherapist shows that these sessions had led to further and continuing complaints about anxiety levels,⁴² worry, sleeplessness, sleepwalking, and nightmares.⁴³

(iii) Domestic and other Activities:

Ms. Roberts testified she could no longer perform housekeeping duties, and she needed help with buttons and dressing and undressing. She developed agoraphobia and seldom left her house. Sometimes she remained in her pyjamas or in bed all day. She did little cooking or shopping and usually relied on her daughter to perform these tasks. She slept only 2-3 hours per night, and was troubled by sleepwalking and nightmares.

She had once been an avid reader. She experienced severe headaches. She had lost her fine motor control and needed some help with self-care. She could not concentrate and was easily distracted. She developed a fear of driving and being in a car.

Again, I found much of this testimony was exaggerated or was no different from complaints she had made long before her 2007 accident. Although Ms. Roberts stated that she had agoraphobia and went out rarely and only to appointments when accompanied, she also regularly left the house on her own to deliver and pick up her children from their schools. In fact, she demonstrated little or no driving anxiety. On many occasions, she drove alone from Kingston to Toronto and back. Ms. Roberts was also able to go on vacation after her 2007 accident and had flown in a plane to Florida, although she had arranged a specified seat.

Although she stated she had lost her fine motor skills, she was able to use a push-button GPS, computer, email, telephone, IPad, and day planner.

The impact of the 2007 accident on her sleeping habits was also exaggerated. As stated, problems with sleeping, nightmare and headaches had been a consistent feature of her medical presentation for years,⁴⁴ and nightmares and sleeping difficulties had begun to intensify in the period well before the February 2007 accident, when Ms. Roberts had commenced the recovery of repressed memories from her childhood with the aid of her psychotherapist.⁴⁵

Further, although Ms. Roberts spoke of having been an “avid” reader who could no longer participate in this activity because of problems of concentration and distractibility due to the 2007 accident, her medical record proved that problems with concentration (an issue that was also related to her problems at work), distractibility, and reading long pre-dated 2007.⁴⁶ Some of her reading problems were attributed to a physical component; pain in her neck made reading difficult, and had commenced as early as 2000.⁴⁷ Problems with concentration were noted as early as October 2000.⁴⁸

In summary, I found that Ms. Roberts’ pre-2007 mental and physical health was much less robust than suggested by her own testimony. Her family doctor’s records and report of September 2006 revealed a person who was already struggling with persistent mental and physical issues that would require life-long treatment and modifications. Also, many of the activities about which Ms. Roberts testified had been curtailed long before the 2007accident. Her testimony that her recent psychological sessions had had no impact on her functioning or life was simply not credible. I found Ms. Roberts’ self-assessment, that she had been “doing well”, and had not been adversely affected by these pre-2007 conditions, was simply not believable or reliable.

As her own testimony about her level of impairment and the impact of the 2007 accident on her daily life was largely unreliable, I turn to the rest of the medical evidence and the lay witnesses.

LAY WITNESSES:

The two lay witnesses were Ms. Roberts’ children, Heather and Colin. While I found they were generally credible, I also found their evidence unhelpful as they had not been at the family home on a regular basis or had been away for school, and were largely ignorant of Ms. Roberts’ employment and work issues.

(a) Heather Roberts:

Ms. Roberts’ daughter, Heather, left for university in 2005 and was at Queen’s University in 2007. She testified she came home on weekends and in the summer. After the accident, her mother was “not her mom anymore”. Ms. Roberts did not do housework after the 2007 accident. Rather, she stayed home in her pyjamas and did not go out often. The fridge would be empty when Heather came home from university, and Heather would have to help with paying the bills and buying groceries. Ms. Roberts was frustrated at work, she forgot and became confused easily, and also didn’t sleep much.

In cross-examination, Heather stated that she did not recall if Ms. Roberts has been swimming immediately before her 2007 accident. She did not remember if Ms. Roberts had been working at home before her accident. She agreed that Ms. Roberts had gone on vacation to Arizona in 2008 and to Florida in 2012. She agreed that Ms. Roberts continued to drive them in her car, although she drove “more carefully now.”

(b) Colin Roberts:

Ms. Roberts’ son, Colin, was thirteen in 2007. He testified that at the present, his mother was the exact opposite of what she had been before the accident. She had done chores, including vacuuming and gardening. She had quilted, sewed and swam. Now she couldn’t manage the home. Although he did not know about her self-care, but he knew she stayed in bed, and that she only left the house for appointments or to take him and his sister shopping. Colin was currently away at university and was only home 4-5 months during the summer.

I found there were gaps in both Heather and Colin’s knowledge of their mother’s situation. Heather was away at university or attending university for much of the time after the 2007 accident and had little knowledge of her mother’s activities during those periods. Before the accident, Colin had been living in a shared custody arrangement with his father.

Both Heather and Colin confirmed Ms. Roberts did leave the house on occasion and participated in shopping for groceries and other items. Both confirmed that Ms. Roberts sometimes drove alone, and Colin stated she would travel regularly to and from Toronto and Kingston to pick him up and deliver him to university. Although they testified of Ms. Roberts’ sleepwalking and sleep problems, these had been part of Ms. Roberts’ pre-accident medical history.

MEDICAL EVIDENCE:

Despite the voluminous medical record produced by the parties, there was only one actual Catastrophic Assessment report which conformed to the requirements of the Guides. That report, prepared by Dr. Brian Hines on behalf of the Insurer,⁴⁹ was the most convincing of the medical opinions. The clinical notes of Dr. Patricia O’Donnell, Ms. Roberts’ family doctor, were also comprehensive and probative. Apart from these two exceptions, I found that most of the other medical documents and reports were less convincing, mainly because their authors had placed too great a reliance on Ms. Roberts’ self-reporting in regard to her pre-accident health, and because they had been ignorant or had little knowledge of Ms. Roberts’ employment history.

(a) Dr. O’Donnell, family practitioner:

Dr. O’Donnell provided the most complete picture of Ms. Roberts’ health. Her notes in the record date from 2000. Despite providing numerous letters in support of Ms. Roberts, she was not called to testify. Nor did Dr. O’Donnell ever unequivocally state that Ms. Roberts had been catastrophically impaired as a result of the 2007 accident. Dr. O’Donnell also did not complete any OCF-18 on behalf of Ms. Roberts.

Although Dr. O’Donnell stated that Ms. Roberts’ long history of neck and low back pain had settled and were not causing her problems at the time of the 2007 accident⁵⁰, this conclusion was contradicted by notations in Dr. O’Donnell’s own records (as noted above), which detailed Ms. Roberts’ many persistent and continuing complaints and medical problems. Dr. O’Donnell’s report of September 2006, (also described above) concluded that Ms. Roberts was suffering from a permanent medical condition(s), requiring life-long treatment and work modification, before the 2007 accident.

(b) Ms. Kay-Lee Pantony, psychotherapist:

Ms. Kay-Lee Pantony, Ms. Roberts’ treating psychotherapist since May 2006, testified before me. She also provided four reports⁵¹ at the request of Ms. Roberts, detailing her observations and conclusions. Ms. Pantony also completed an OCF-19 for Ms. Roberts wherein she referred to criteria seven and eight at Part IV, in affirming Ms. Roberts’ catastrophic impairment.⁵²

I found Ms. Pantony’s evidence was almost entirely unreliable and of little probative value.

I gave no weight to Ms. Pantony’s opinion that Ms. Roberts had suffered a catastrophic impairment, or that the level of the impairment was marked.⁵³ On cross-examination, it was clear that Ms. Pantony had little or no familiarity, understanding, and experience in the use of Chapter 14 and the Guides. In fact, she admitted she had not been qualified to make a conclusion of catastrophic impairment. She had not conducted psychological testing and was not qualified to do so. She admitted she possessed no specialized knowledge and had little experience with brain-injured persons. She was not a medical doctor. In fact, her background was an honours B.A. in psychology (focusing on children and addiction).

I also found that Ms. Pantony had little knowledge, apart from Ms. Roberts’ self-reporting, of Ms. Roberts’ pre-accident functioning. On cross-examination, she stated that she had not reviewed the ambulance reports or emergency room reports from Ms. Roberts’ accident. She did not recall reviewing any of Dr. Wee’s notes, and had not referred to any pre-accident clinical notes and records, including the extensive record of Dr. O’Donnell.

Further, Ms. Pantony did not know of Ms. Roberts’ pre-accident nightmares, neck and back pain and headaches. She had little or no independent knowledge of Ms. Roberts’ pre-accident work history. She did not know of the history of absences, difficulties, and grievances she had had with her employer. She did not know of the word-finding difficulties Ms. Roberts had experienced prior to her accident or of her issues with self-esteem.⁵⁴

It was not even possible to conclude, as Ms. Pantony suggested, that the 2007 accident had caused an increase of the frequency of Ms. Roberts’ consultations with Ms. Pantony. An examination of Ms. Pantony’s clinical notes and records showed that Ms. Roberts had consulted with Ms. Pantony as frequently or more frequently in the pre-accident period until some time in 2010.

Ms. Pantony incorrectly attributed Ms. Roberts’ tremors to the accident, a conclusion contradicted by all other medical practitioners including Dr. Wee.

Finally, although she indicated on her OCF-19 that Ms. Roberts had suffered “… an impairment or combination of impairments that, … results in 55 per cent or more impairment of the whole person” Ms. Pantony admitted that she had never made any such calculation.

(c) Doctor Joy Wee, physiatrist:

Dr. Wee, a physiatrist who treated Ms. Roberts at her neuro-rehabilitation clinic, testified before me. Dr. Wee completed two OCF-19’s for Ms. Roberts, neither of which was accompanied by a written report, although she produced a number of subsequent clinic notes at the request of Ms. Roberts.⁵⁵

Dr. Wee diagnosed Ms. Roberts with an acquired brain injury, leading to an impairment of her activities of daily living. She noted that Ms. Roberts had reported difficulties with buttons, finances, social functioning, and that she didn’t want to leave her house. Her anxiety had also impacted her ability to do tasks and to speak. It had affected her concentration and ability to abstract. Ms. Roberts had suffered nightmares and sleepwalking, which Dr. Wee stated were new and had only occurred after the 2007 accident.

I did not accept Dr. Wee’s conclusion that Ms. Roberts had a mental or behavioural disorder that caused her to suffer a marked impairment in one or more of the four spheres of function. The probative value of her opinion was lessened by the fact that she had no specialized psychiatric training other than what she had received in medical school, and because she had only passing familiarity with Chapter 14 of the Guides. When asked if she had examined all four spheres of function when preparing her OCF-19, Dr. Wee stated, “I had looked at all four as far as I could understand.”

Further, much of the factual basis on which Dr. Wee based her conclusions was unsupported by the medical evidence. For instance, Dr. Wee believed Ms. Roberts had lost consciousness during the 2007 accident, although both the ambulance and emergency room reports denied this occurrence. She agreed that the protocol followed at the hospital on Ms. Roberts’ admission (discharging her after four hours) suggested that she had not suffered a loss of consciousness. In addition, Dr. Wee had never seen the MRI of Ms. Roberts’ head⁵⁶ which was “unremarkable”. Dr. Wee agreed that had Ms. Roberts suffered even a mild traumatic brain injury, there would have been findings in the MRI.

Dr. Wee also had a poor understanding of Ms. Roberts’ pre-2007 mental and physical health, possibly due to an over-reliance on Ms. Roberts’ self-reporting. She did not know that Ms. Roberts had had sleep and nightmare problems for years before the 2007 accident.⁵⁷ She did not know much of Ms. Roberts’ pre-accident employment history, and incorrectly believed her previous diagnosis of General Anxiety Disorder had not affected her performance at her workplace.

(d) Dr. Renee Fitzpatrick:

Dr. Fitzpatrick, psychiatrist, assessed Ms. Roberts for anxiety symptoms in August 2008, and on two later occasions in September 2009 and October 2009. She prepared three clinic notes for Ms. Roberts⁵⁸ (none more than three pages long). None of these clinic notes fulfilled the criteria for catastrophic assessment reports required by the Guides.

Dr. Fitzpatrick’s first and most comprehensive note diagnosed Ms. Roberts with PTSD and a “premorbid anxious personality.”⁵⁹ The third and last report detailed the following diagnoses:

Major depression Post traumatic stress disorder

Fibromyalgia Degenerative Disc disorder

GERD

Migraine

GAF 50

Although she was a psychiatrist, Dr. Fitzpatrick never unequivocally stated that Ms. Roberts was catastrophically impaired as a result of a mental or behavioural disorder. Nor did she attend to testify on her behalf, although she did make the following comment: “Cathy continues to have significant impairment in her functioning which impacts her ability to work.”⁶⁰

Nonetheless, I was not swayed by this statement as it was apparent that Dr. Fitzpatrick relied almost entirely on Ms. Roberts’ self-reporting in the preparation of her clinic notes (no bibliography was included in any of her notes and there was no indication that any review of medical or employment history has taken place).

For instance, she made the following incorrect or inaccurate observations when assessing the impact of the 2007 accident: Ms. Roberts has always had “good relationships at work and performed well until the present situation”⁶¹. Ms. Roberts “… had a wide range of hobbies which were a great resource to her until her car accident.”⁶² Nor did I accept Dr. Fitzpatrick’s opinion that Ms. Roberts was “… functioning well before her accident and her anxieties had been quite well-controlled”.⁶³

For this reason, I give little weight to Dr. Fitzpatrick’s opinion as to the impact of the mental or behavioural disorder on Ms. Roberts.

Dr. Fitzpatrick did make the following comment some two-and-half years post-accident: “[Ms. Roberts] had no thought or perceptual difficulties. She had no suicidal ideation. Her anxiety level was very high. Her insight was fair … She reports significant cognitive impairment after the accident.”⁶⁴ [Italics mine]

This finding was similar to Dr. Hines’ conclusions, and contrasts Dr. Wee’s statements about Ms. Roberts’ lack of ability to abstract.

(e) Dr. Duncan Day, psychologist:

Dr. Day produced his report at the request of the insurer after an examination conducted on September 5, 2012. Dr. Day concluded as follows:

Her psychological problems continue to have a significant impact on her functioning in a number of important spheres of daily activities, including social life, vocation, and maintaining her home.⁶⁵

Dr. Day’s report, prepared to address a single treatment plan for psychological treatment, did not qualify as a catastrophic assessment report, but he found her impairment was significant in three spheres. Nonetheless, the value of the report was lessened due to an overreliance on Ms. Roberts’ self-reporting. Much of the pre-accident activity he described in his report had been curtailed long before the 2007 accident, and her activity level, volunteer work, swimming and athletic ability were exaggerated and outdated. I also noted that Dr. Day observed that Ms. Roberts tended to exaggerate her symptoms and to describe her problems using the most extreme terms available, although her test scores were valid.⁶⁶

(f) Dr. Brian Hines, psychiatrist:

Dr. Brian Hines, psychiatrist, prepared a Catastrophic Assessment Report, dated May 25, 2011, at the request of the Insurer.⁶⁷ He diagnosed Ms. Roberts with the following:

Adjustment Disorder with Mixed Anxiety and Depressed Mood-mild

Panic Disorder with Agoraphobia-mild

Specific Phobia-Situational Type-Claustrophobia-mild

He concluded that Ms. Roberts had a moderate impairment in each of the four spheres of functioning: activities of daily living, social functioning, and Concentration, persistence and pace, and Adaptation. As a result, he concluded that Ms. Roberts was not catastrophically impaired.

I found the opinion of Dr. Hines to be the most convincing of all the expert evidence adduced before me.

First, Dr. Hines was a psychiatrist, and the basis of the claim sought by Ms. Roberts was founded on a mental or behavioural disorder. Of the experts who appeared, he had the most experience and training in the diagnoses and treatment of such disorders, and he had the most understanding and expertise in the use and application of the Guides, the four spheres or aspects of function, and the Schedule.

Second, his report conformed to the requirements of the Guides in respect to assessments of catastrophic impairment. It was a full-fledged assessment of catastrophic impairment, unlike the reports⁶⁸ of Doctors Altrows, Muirhead, and Day, which were lesser in scope, did not directly and specifically address the issue of catastrophic impairment, and were responses to individualized treatment plans for Ms. Roberts.

Third, as a psychiatrist, Dr. Hines did not perform psychological testing, although he did not necessarily discount the benefits of such testing. Instead, he performed mental status evaluations through clinical evaluation of objective current indications and discussion with the patient. He did not diagnose Ms. Roberts with as serious a depression as some of the other experts, but he justified his opinion by pointing out the changes and range in affect he had directly observed in Ms. Roberts when discussing subjects other than the accident.

Dr. Hines had this to say about her cognitive abilities:

There was no objective evidence of any significant difficulty with her concentration. She was alert, focused, and attentive. There was no evidence of any preoccupations or distractibility. She was able to retain all my questions and none required repeating. She stated that her memory is poor. There was no objective evidence of any significant difficulties with her memory. She was able to provide an adequately detailed history and all of her responses were spontaneous. There was no evidence of any difficulty with recall or word finding. She stated her memory is low and she appeared slightly fatigued. There was no evidence of any further fatiguing as the interview progressed. She is less social than prior to the accident and she enjoys time with her son and daughter. she does not have any suicidal thoughts.⁶⁹

His observations about Ms. Roberts’ cognitive function were echoed by a number of examiners.⁷⁰

In cross-examination, Dr. Hines was questioned at length about the validity of his methodology in comparison with Doctors Altrows and Muirhead, who applied a battery of psychological tests and determined (amongst other findings) that Ms. Roberts was severely depressed.

In particular, he was asked about Ms. Roberts’ fear of driving. Dr. Altrows applied the Travel Anxiety Questionnaire (TAQ) and determined Ms. Roberts reported “severe driving anxiety for all listed driving situations …”⁷¹ , and concluded she suffered from “driving-related anxiety.”⁷² Dr. Muirhead (in the most recent of these reports), applied “the AFQ” (a test to assess vehicle-related anxiety) and concluded Ms. Roberts experienced “extreme anxiety with respect to road travel, and that [Ms. Roberts] would avoid driving at all if she could, and this is directly related to her fears since her MVA.”⁷³

Both these psychologists applied psychological tests to conclude that the accident had caused Ms. Roberts to be significantly impaired in the areas of work, social and activities of daily living.

Yet despite these driving test scores, the indisputable evidence was that Ms. Roberts had continued to drive after her 2007 accident, and had actually purchased a new car in 2011. Since her accident of 2007, she had driven regularly and often unaccompanied, to go shopping or to attend her many appointments. She used a GPS (the push-button model which she operated independently), and drove from Kingston to Toronto and back to pick up or deliver her adult children to university. She reported little anxiety when returning to the scene of her accident.

Dr. Hines stated that her ability to drive was important, given the many cognitive processes and decision-making required for this activity. The fact that Ms. Roberts performed this activity on a frequent and regular basis was simply proof that she was not as impaired as she suggested, or as she was determined to be through psychological testing (such as that applied by Dr. Altrows or Dr. Muirhead). The tendency to exaggerate the severity of her symptoms had also been noted by Dr. Day.⁷⁴

This was also consistent with Ms. Roberts’ complaints of agoraphobia and travel sensitivity. She reported she had taken trains and flown on a plane in the recent past, despite her phobia and anxiety. Therefore, the phobias were not as severe or as significant as reported. She also left the house on a regular basis, although she stated she did not wish to or was afraid to.

Dr. Hines was also not convinced that her problem with post-traumatic stress disorder was as significant as suggested by others, given that she did not present enough of the symptoms of PTSD. Dr. Hines also noted that Ms. Roberts was taking Clonazepam (a medication to treat anxiety) at the time of the examination. An anti-depressant, he testified, would have been more effective for panic attacks, which confirmed his opinion that her panic disorder was not as severe as suggested.

Overall, I found the assessment of Dr. Hines was more consistent with the totality of evidence. He spoke of how Ms. Roberts was largely independent in self-care, how she was able to self-groom, and how she could do almost all her own dressing and undressing. Ms. Roberts was able to go to a manicurist and hair salon to address those tasks where she was not independent.

Ms. Roberts spoke and dressed appropriately, and practiced good hygiene. Ms. Roberts took care of her pets, including one dog for which she expressed concern, due to its recent illness. Dr. Hines stated that a person who was suffering a marked impairment would not have been capable of performing in this manner.

Dr. Hines also noticed few signs of acquired brain injury which would be consistent with the evidence of the MRI and Dr. Wee’s comments about that MRI.

I agree with Dr. Hines’ opinion. In fact, it accorded with many of the observations in the Psycho-educational Assessment Report prepared by Queen’s University in June 2006. ⁷⁵ This report on Ms. Roberts’ pre-2007 health, commissioned by Ms. Roberts to investigate her difficulties with memory and distractibility in anticipation of her return to school, was highly probative because there was every incentive for Ms. Roberts to be as honest as possible to obtain an accurate assessment of her own abilities.

In this report, Ms. Roberts described the difficulties she experienced as early as her elementary school years in filtering out noise, test anxiety and understanding math concepts. Ms. Roberts stated that although she enjoyed reading, she became bored while reading and skimmed until she got to an interesting part. “She realizes that she sometimes misses information …”⁷⁶ Amongst other findings, that report summarized Ms. Roberts’ abilities as follows: “[her] areas of relative weakness include reading comprehension, memory for contextual information in both verbal and visual domains, and divided attention.”⁷⁷

The report also documented many of the problems she now attributes to the 2007 accident, including a long standing issue with “memory and distractibility”⁷⁸, the continuing sequealae from previous motor vehicle accidents in 2000, fibromyalgia, and also confirmed that Ms. Roberts had not been swimming since the 2000 accidents because of her deteriorating health.⁷⁹

Further, the report made little note of any social activity in her life. In regard to her workplace problems, the document detailed the following: “[Ms. Roberts] reported that when she is given a task or an assignment, she asks for the instructions for the task, then takes her work to her office, closes the door, and completes the task very carefully and very slowly, re-reading it several times to ensure there are no errors.”⁸⁰ This was significant in view of Ms. Roberts’ testimony about how her workplace manager wanted her to perform her duties at a faster pace.

In summary, although Ms. Roberts testified that the 2007 accident had led to a mental or behavioural disorder that caused a significant impairment in every one of her four spheres of activities, I found that the impact of the impairment was less than what she suggested. Instead, many of her social, leisure, and life activities had been greatly curtailed or had completely ceased well before the 2007 accident. Her problems with memory and concentration pre-dated the 2007 accident. Her work record demonstrated that she had had serious problems well before the accident. Anxiety, nightmares, and sleep problems were all in place well before the accident.

Overall, I agreed with the assessment of Dr. Hines, that while Ms. Roberts has a moderate impairment in all four spheres; she is not markedly impaired in any of the spheres. I find she is not catastrophically impaired as a result of the accident.

2) Is Ms. Roberts entitled to attendant care benefits in the amount of $334.45 per month from December 10, 2009 to date on ongoing?

Ms. Roberts would be entitled to this benefit as of the date claimed only if she had been determined to be catastrophically impaired. I did not find she was catastrophically impaired. Therefore she is not entitled to this benefit.

3) Is Ms. Roberts entitled to payments of $100.00 per week from February 19, 2009 to date and ongoing for housekeeping and home maintenance services?

Ms. Roberts would be entitled to this benefit as of the date claimed only if she had been determined to be catastrophically impaired. I did not find she was catastrophically impaired. Therefore she is not entitled to this benefit.

4) Is Ms. Roberts entitled to Income Replacement Benefits of $400.00 per week from June 10, 2009 to date and ongoing?

Ms. Roberts argued that even though she returned to work several weeks after her accident in February 2007, and remained continuously at work until June 10, 2009, she had, in fact, been disabled from performing the essential tasks of her employment since her accident and she is currently entitled to IRBs.

Further, Ms. Roberts argues that after 104 weeks of disability she suffered a complete inability to engage in any employment for which she was reasonably suited by education, training and experience. Thus, by June 10, 2009, when Ms. Roberts stopped working, she was completely disabled and entitled to post-104 week IRBs as well.⁸¹

In the present case, Gore Mutual did not suggest any possible vocations that might be suitable for Ms. Roberts. Ms. Roberts relied on various arbitral decisions⁸² to argue that she was completely disabled from any employment (for which she was suited) because she was no longer competitively employable in the “real world.” She would be unable to work full-time on a consistent basis and to meet employer requirements.

I agree that Ms. Roberts would be unable to meet employer requirements and work full-time on a consistent basis. In her present state, she would not be employable in the “real world”. The problem with Ms. Roberts’ argument is that she has been in this state since long before the February 2007 accident. As noted previously, by September 2006, she was already working only half-days from home. She was not required to go to the office. She had then been excused from duties which had been part of her normal job description. Her problems with concentration prompted her office to construct a special office for her. Even before the 2007 accident, she was unable to resume full time working hours.

This was not an isolated period in Ms. Roberts’ work life. A non-exhaustive review of her work history revealed the following periods during which she was unable to work or could work only part-time hours due to physical or mental problems:

− from August 9, 2001 to March 12, 2002, she could work only half-days and ongoing.⁸³

− from July 23, 2002, she was unable to work at all during a strike period.⁸⁴

− from September 4, 2002, she received recommendation from Dr. O’Donnell for modified work hours for an indefinite duration.⁸⁵

− from March 17, 2003, Ms. Roberts would commence to work 5 hours a day on a trial basis.⁸⁶

− from September 30, 2003, Ms. Roberts was unable to work more than 6 hours per day inclusive of breaks. This would be a “permanent condition.”⁸⁷

− from October 15, 2003, Ms. Roberts would work 6 hours per day until further notice.⁸⁸

− in March 2004 a request from the employer to obtain further information regarding her continued work at 6 hours day.⁸⁹

− from July 13, 2005 to October 31, 2006, Ms. Roberts was unable to work at all.⁹⁰

− from October 31, 2005 and ongoing, a confirmation that she could only work part-time for the foreseeable future.⁹¹

− from September 2006 she would continue to work part-time as a “permanent condition.”⁹²

I find that Ms. Roberts had not been able to work competitively in a full time position in the “real world” for years before the 2007 accident. I find the 2007 accident was neither a cause nor a material contributor to Ms. Roberts’ inability to work at any position for which she is reasonably suited by education training or experience. Ms. Roberts is not entitled to Income Replacement Benefits.

5) Is Ms. Roberts entitled to the four massage therapy treatment plans of $1,150.00, $1,150.00, $722.10, and $1,200.00?

Ms. Roberts testified that the massage treatments provided her pain relief that usually lasted for approximately “half a day or to the night”. It brought her pain level down to a ‘6’.

Dr. Wee testified that massage treatments would be of assistance for Ms. Roberts’ “tight” muscles and would help speed up the loosening and recovery of such muscles.

Arbitral jurisprudence has held that pain relief, in and of itself can, in some circumstances, be a legitimate medical and rehabilitative goal, and therefore can be reasonable and necessary, even if it does not promote recovery.⁹³

I therefore find that these treatment plans were treasonable and necessary.

6) Is Ms. Roberts entitled to receive physiotherapy treatment in the amounts of $998.55, and $2,431.68?

Ms. Roberts testified the physiotherapy was helping her, and Dr. Wee agreed it could help stretch her tight muscles. Dr. Wee echoed her statement that the physiotherapy was reasonable and necessary. I therefore find that this treatment was reasonable and necessary.

7) Is Ms. Roberts entitled to receive occupational therapy services of $1,536.94?

At the hearing, Ms. Roberts submitted that half of this treatment plan had been approved. No evidence was presented to convince me that the remainder was reasonable and necessary.

8) Is Ms. Roberts entitled to payment for the costs of examinations in the amounts of $3,500.00 to $5,000.00 for a neuro-psychological assessment?

Many of the psychological assessors determined that a neuro-psychological assessment was reasonable and necessary for Ms. Roberts.⁹⁴ I therefore find she is entitled to $3,500.00 to $5,000.00 for a neuro-psychological assessment.

9) Is Ms. Roberts entitled to $456.51 and $4,665.83 for speech therapy services?

Speech pathology services were also determined to be reasonable and necessary by Dr. Wee and other medical examiners. Ms. Roberts is entitled to $456.61 and $4,665.83 for speech pathology services.

10) Is Ms. Roberts entitled to payment of $6,000.00 for a service dog recommended by Dr. Harris in a treatment plan dated August 10, 2010?

Ms. Roberts argued that such a dog would help reduce her stress. Ms. Pantony testified that she had had a graduate student who had done research with such animals. Nevertheless, Ms. Pantony had not done any research herself and had no first-hand knowledge of the value of such animals.

I agree with the opinion of Dr. Altrows, who stated that at present, the use of such animals in this form of treatment remains in the early stages and is only supported by anecdotal evidence.⁹⁵

I thus find that the use of such animals is still experimental in nature. Ms. Roberts is not entitled to the payment of $6,000.00 to purchase a service dog.

11) Is Ms. Roberts entitled to receive a medical benefit of $1,000.00 and $2,000.00 for the Psychological therapy?

I find that the medical evidence was that such services were reasonable and necessary for Ms. Roberts.⁹⁶ Therefore she is entitled to payment of these amounts.

12) Is Ms. Roberts entitled to $23.70 for prescription medication?

I am satisfied that these prescriptions were reasonable and necessary. Ms. Roberts is entitled to this amount.

13) Is Ms. Roberts entitled to a special award?

I find that Ms. Roberts is entitled to a special award for the unreasonable delay or denial of payment for two items: the neuro-psychological assessment and the psychological therapy. The Insurer’s own medical examiners were convinced these benefits were reasonable and necessary, and I found no reason why the payment of these benefits was delayed or denied. At the hearing, it was revealed that the neuro-assessment had been approved at some time before the date of the hearing, but the actual date of the payment was not given. I have not attempted to calculate the amount of the special award. The parties should determine the amount of the special award on their own, failing which they may contact me in accordance with Rule 79 of the Dispute Resolution Practice Code.

The issue of the speech language pathology treatments was withdrawn at the commencement of the hearing.

EXPENSES:

Gore Mutual had the greater degree of success in the outcome of this hearing, having been successful on the complex question of catastrophic impairment. If the parties are unable to agree on the quantum of expenses, they may contact me in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 10, 2014

Edward Lee Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2014 ONFSCDRS 61

FSCO A11-003986

BETWEEN:

CATHY ROBERTS

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. Roberts has not suffered a catastrophic impairment.

2. Ms. Roberts is not entitled to attendant care benefits in the amount of $334.45 per month from December 10, 2009 to date on ongoing.

3. Ms. Roberts is not entitled to payments of $100.00 per week from February 19, 2009 to date and ongoing for housekeeping and home maintenance services.

4. Ms. Roberts is not entitled to Income Replacement Benefits of $400.00 per week from June 10, 2009 to date and ongoing.

5. Ms. Roberts is entitled to the four massage therapy treatment plans of $1,150.00, $1,150.00, $722.10, and $1,200.00.

6. Ms. Roberts is entitled to receive physiotherapy treatment in the amounts of $998.55, and $2,431.68.

7. Ms. Roberts is not entitled to receive occupational therapy services of $1,536.94.

8. Ms. Roberts is entitled to payment for the costs of examinations in the amounts of $3,500.00 to $5,000.00 for a neuro-psychological assessment.

9. Ms. Roberts is entitled to $456.51 and $4,665.83 for speech therapy services.

10. Ms. Roberts is not entitled to payment of $6,000.00 for a service dog recommended by Dr. Harris in a treatment plan dated August 10, 2010.

11. Ms. Roberts is entitled to receive a medical benefit of $1,000.00 and $2,000.00 for the psychological therapy.

12. Ms. Roberts is entitled to $23.70 for prescription medication.

13. Ms. Roberts is entitled to a special award for the unreasonable delay or denial of payments for the neuro-psychological assessment and psychological therapy.

14. Ms. Roberts is entitled to interest on the overdue payment of benefits.

15. This item will be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code, if necessary.

April 10, 2014

Edward Lee Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Insurer’s Arbitration Brief, Page 248
3. 3Pastore and Aviva Canada Inc. (FSCO A04-002496, February 11, 2009), Aviva Canada Inc. v. Pastore, 2011 ONSC 2164, Rev’d on appeal - arbitrator’s and Director’s Delegate’s decisions restored.
4. 4The analysis employed borrows heavily from the scheme employed by the arbitrator in Mujku and State Farm Mutual Automobile Insurance Company (FSCO A10-002979, January 14, 2013)
5. 5Applicant’s Document Brief, Volume 2 Tab 65, Altrows, Muirhead Tab 66; Insurer’s Medical Brief Volume 1 Tab 17, Hines
6. 6Arunasalam and State Farm Mutual Automobile Insurance Company of Canada (FSCO P09-00025, Appeal, March 2, 2011)
7. 7Insurer’s Medical Brief, Vol. 2, Tab 27, Page 329
8. 8Ibid., Page 337
9. 9Applicant’s Document Brief, Tab 72, Page 746
10. 10Ibid.
11. 11Insurer’s Medical Brief, Vol. 1, Tab 17
12. 12Applicant’s Document Brief, Volume 2, Tab 63
13. 13Ibid., at Tab 65
14. 14Ibid., at Tab 66
15. 15See footnote 13, supra
16. 16See footnote 11, supra
17. 17Insurer’s Medical Brief Page 512; Insurer’s Arbitration Brief, Page 261
18. 18Insurer’s Medical Brief at Tab 27, Page 485
19. 19Medical Brief of Insurer, Page 1144
20. 20Ibid., at Page 1143
21. 21Ibid., at Page 1117
22. 22Ibid., at Page 1046
23. 23Ibid., at Page 343
24. 24Ibid., at Page 353
25. 25Insurer’s Medical Brief, Volume 4, Pages 1110, 1114 (2000), 1115, 1116, 1117, 1119, 1123 (2001), 1053, 1108, 1054, 1052, 1048 (2002), Pages 1045, 1046, 1047 (2003), 1044, (2004) p. 479 Insurer’s Medical Brief (2006)
26. 26Ibid at Pages 1110, 1114, 1115, 1116, 1117, 1123, 1119, 1048, P. 479 Insurer’s Medical Brief (2006)
27. 27Pages 1110, Pages 479 Insurer’s Medical Brief (2006)
28. 28Pages 1047, 1043, 1093, 1111, 1139, 1068, 1156, 1160, p. 491 Insurer’s Medical Brief
29. 29Pages 1042, 1114 , Pages 489 of Insurer’s Medical Brief
30. 30P.1114
31. 31Insurer’s Medical Brief, Pages 1115, 1157, and Page 479
32. 32Ibid., at Pages 1123, 1048
33. 33Ibid., at Pages 1111, 1115, 1123, 1119, 1048, 1165
34. 34Ibid., at Pages 1111, 1044, 1042, 1041,
35. 35Ibid., at Pages 1046, 1102
36. 36Ibid., at Pages 491
37. 37Ibid., at Pages 1046, 1102
38. 38Ibid., at Pages 1048
39. 39Ibid., at Pages 1039 and 1040
40. 40Ibid., at Pages 1040
41. 41Ibid., at Pages 1112, 1123, 1045, 1043
42. 42Pantony Insurer’s Medical Brief, Volume 2, Pages 342, 345, 438, 348, 351
43. 43Pantony, Insurer’s Medical Brief, Volume 2, Pages 351, 352, 347, 351 and 436
44. 44See Footnote 33 and 34 supra
45. 45Notes of Pantony, Insurer’s Medical Brief, Volume 2
46. 46Queen’s University Report, Medical Brief of Insurer, Volume 2, Page 328
47. 47Insurer’s Medical Brief, Volume 4, Page 1130
48. 48Ibid., at page 1044 and 1114
49. 49Brian Hines CAT report, see footnote 5 supra
50. 50Applicant’s Document Brief, Page 746
51. 51Applicant’s Documents Brief Vol. II, Tab 45, 47, 48 and 49
52. 52Applicant’s Documents Brief Vol. II, Tab 49 at Page 506
53. 53Ibid.
54. 54See footnote 46, supra
55. 55Applicant’s Documents brief Vol. II tabs 33, 34, 36, 37
56. 56Insurer’s Medical Brief Vol. II, page 447
57. 57Applicant’s Documents Brief , Tab 33
58. 58Applicant’s Documents Brief, Tabs 52, 53, 54 and 55
59. 59Ibid., at Page 549
60. 60Ibid., at Page 549
61. 61Ibid., at Page 545
62. 62Ibid., at Page 545
63. 63Ibid., at Pages 543 and 545
64. 64Ibid., at Page 545
65. 65Applicant’s Document Brief, Tab 63, Page 626
66. 66Ibid., at Page 624
67. 67Insurer’s Medical Brief Volume I, Tab 17
68. 68See Footnote 5 and 65, supra.
69. 69Insurer’s Medical Brief, page 185
70. 70Dr. Fitzpatrick’s Report, Applicant’s Document Brief, Tab 53, Page 545; Dr. Muirhead’s Report, Applicant’s Document Brief, Tab 65, page 655
71. 71Dr. Altrows, Page 671
72. 72Dr. Altrows, Page 673
73. 73Dr. Muirhead, Page 656
74. 74Dr. Day, Page 624
75. 75See footnote 46, supra
76. 76Ibid., Page 330
77. 77Ibid., Page 337
78. 78Ibid., Page 328
79. 79Ibid., Page 330
80. 80See footnote 46, supra, at Page 331
81. 81Section 5(2)(b) of the Schedule
82. 82Terry and Wawanesa Mutual Insurance Company (FSCO A00-000017, July 12, 2001), Passarello and Wawanesa Mutual Insurance Company (FSCO A08-000533, March 9, 2010), Wigle and Royal Insurance Company of Canada (OIC A-012312, January 12, 1996)
83. 83Insurer’s Arbitration Brief Pages 181, 121
84. 84Medical Brief of Insurer, Page 1052
85. 85Insurer’s Arbitration Brief, Page 183
86. 86Insurer’s Arbitration Brief, Page 189
87. 87Insurer’s Medical Brief, Page 1100
88. 88Insurer’s Arbitration Brief, Page 171
89. 89Insurer’s Medical Brief, Page 513
90. 90Insurer’s Medical Brief Pages 495-498
91. 91Insurer’s Medical Brief Page 495
92. 92Insurer’s Medical Brief, Page 486
93. 93General Accident Assurance Co. of Canada and Violi (FSCO P99-00047, September 29, 2000), Appeal
94. 94See Footnote 68, supra
95. 95Applicant’s Documents Brief, Volume 2, page 657
96. 96Ibid., page 626