Neutral Citation: 2014 ONFSCDRS 91

FSCO A11-002629

BETWEEN:

TARA BASRA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Alec Fadel

Heard: December 17, 18, 19, 20, 2012, July 23 and August 12, 2013 at the offices of the Financial Services Commission of Ontario with written submissions received up to and including December 31, 2013

Appearances: Savannah Chorney and Nicole Chorney for Mr. Basra Julie N. Singh for Allstate Insurance Company of Canada

Issues:

The Applicant, Tara Basra, was injured in a motor vehicle accident on September 9, 2009 (the “accident”). Mr. Basra was driving his vehicle through an intersection when a third-party vehicle ran a red light colliding with Mr. Basra’s vehicle in a T-bone fashion on the drivers’ side. The impact from the accident caused Mr. Basra’s vehicle to spin and strike a signpost that was located in the medium. Property damage documentation confirms that over $12,000 in damage was sustained to Mr. Basra’s 2007 Ford Freestyle.

Mr. Basra applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ An income replacement and housekeeping benefit were paid up until February 3, 2010 and an attendant care benefit was paid for an unspecified period of time. The parties were unable to resolve their disputes through mediation, and Mr. Basra 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:

Is Mr. Basra entitled to a weekly income replacement benefit, pursuant to Part 2 of the Schedule at the rate of $400.00 per week from February 4, 2010 to date and ongoing?
Is Mr. Basra entitled to housekeeping and home maintenance expenses, pursuant to s. 23 of the Schedule, at the rate of $100.00 per week from February 3, 2010 to September 9, 2011?
Is Mr. Basra entitled to the following medical benefits: $2,597.79 for physiotherapy as set out on a treatment plan dated November 16, 2009; $1,851.48 for massage and pool therapy as set out on a treatment plan dated December 9, 2009; $964.36 for assistive devices as set out on a treatment plan dated January 4, 2010; and, $4,232.20 for psychological counselling as set out on a treatment plan dated November 26, 2010?
Is Mr. Basra entitled to the following cost of examinations: $110.00 for the OCF-3 dated February 18, 2011; $700.00 being the outstanding balance of a TMJ assessment as set out on an OCF-22 dated February 17, 2010; $1,383.00 for a functional capacity evaluation as set out on an OCF-22 dated September 7, 2010; and, $2,301.97 for an orthopaedic assessment as set out on an OCF-22 dated March 12, 2010; $2,250.00 for an orthopaedic assessment as proposed on the OCF-22 of March 12, 2010; $713.72 for a follow-up job-site assessment as set out on an OCF-22 dated March 26, 2010; and, $2,373.49 for a neurological assessment as set out on an OCF-22 dated April 15, 2010?
Is Mr. Basra entitled to interest for overdue payments?
Is Allstate required to pay a special award because it unreasonably withheld or delayed payment of accident benefits to Mr. Basra?
Is Mr. Basra entitled to his expenses of the arbitration proceeding?
Is Allstate entitled to its expenses of the arbitration proceeding?

Result:

Mr. Basra is entitled to a weekly income replacement benefit at the rate of $400.00 from February 4, 2010 to date and ongoing.
Mr. Basra is entitled to housekeeping and home maintenance at the rate of $100.00 per week from February 3, 2010 to September 9, 2011.
Mr. Basra is entitled to the following medical benefits: $1,851.48 for massage and pool therapy as set out on a treatment plan dated December 9, 2009; $964.36 for assistive devices as set out on a treatment plan dated January 4, 2010; and, $4,232.20 for psychological counselling as set out on a treatment plan dated November 26, 2010.
Mr. Basra is not entitled to the following medical benefits: any outstanding balance beyond what was approved for physiotherapy as set out on a treatment plan dated November 16, 2009.
Mr. Basra is entitled to the following cost of examinations: $110.00 for the OCF-3 dated February, 18, 2011; $1,383.00 for a functional capacity evaluation as set out on an OCF-22 dated September 7, 2010; and, $2,301.97 for an orthopaedic assessment as set out on an OCF-22 dated March 12, 2010; $713.72 for a follow-up job-site assessment as set out on an OCF-22 dated March 26, 2010; and, $2,373.49 for a neurological assessment as set out on an OCF-22 dated April 15, 2010.
Mr. Basra is not entitled to the following cost of examinations: $700.00 being the outstanding balance of a TMJ assessment as set out on an OCF-22 dated February 17, 2010; $2,250.00 for an orthopaedic assessment as proposed on an OCF-22 of March 12, 2010.
Mr. Basra is entitled to interest on overdue payments found owing.
Allstate is not liable to pay a special award.
There is no order on the issue of expenses. I remain seized should the parties be unable to resolve this issue on their own.

EVIDENCE AND ANALYSIS:

At the scene of the accident, Mr. Basra refused service from the paramedic and stated that later that evening he began to experience pain in his neck which radiated down his right shoulder and pain in his lower back.

Mr. Basra attended at the emergency department in Halton on September 11, 2009 as a result of increasing pain. Dr. Healey who ordered diagnostic imaging of his C-spine and diagnosed musculoskeletal strain examined him. A c-collar was applied and Mr. Basra was discharged and instructed to follow up with his family physician.

He attended at his family doctor, Dr. Amar Sharma, on September 17, 2009 who recorded that Mr. Basra complained of neck, lower back pain, increased pain to the right shoulder, headaches and tenderness in the chest.

Background:

Mr. Basra was born in India and was 56 years old at the time of the accident. He came to Canada in May 1972 and in August 1972, secured employment with Ford Motor Company where he worked until his early retirement in August 2008. By early May 2009, Mr. Basra contacted Automotive Specialty, a company that was hiring and looking specifically for Ford retirees. At the end of May 2009, Mr. Basra began employment as an inspector with Automotive Specialty.

Mr. Basra had medical issues that pre-existed the accident, including issues with lower back pain that dated back to a workplace incident in the 1980s; a massive tear to his right rotator cuff which dated back to a slip and fall incident at work in January 2007. Dr. Sharma’s pre-accident clinical notes also mention chronic bilateral leg swelling and right foot pain in the months leading up to the accident.

Despite these pre-existing issues, Mr. Basra submits that he was fully functioning in all aspects of his life prior to the accident. He submits that he worked unencumbered in a physical job, cared and supported his family, completed housekeeping chores as part of a functioning household and was an active member of his community. It was only as a result of the accident, he submits, that he is unable to continue in his or any employment, why he cannot complete the housekeeping chores to the full extent that he did prior to the accident and why he needs various medical benefits and assessments.

Allstate submits that if I find that Mr. Basra does continue to suffer from a disability that prevents him from engaging in his daily activities, that same is as a result of other injuries, namely his pre-existing issues as well as depression secondary to his chronic right shoulder pain, all of which are unrelated to the accident.

For the following reasons, I find that Mr. Basra has proven, on a balance of probabilities, that he sustained injuries in the motor vehicle accident and went on to develop a chronic pain disorder and depression as a result of the accident. I am persuaded by the evidence surrounding Mr. Basra’s functioning at the time of the accident which supports that he was fully participating in all aspects of his activities of daily living. I find that Mr. Basra was unable to return to his employment despite his efforts to do so and was prevented from completing his regular household activities.

Credibility:

I find Mr. Basra to be a credible witness on his own behalf. He gave his evidence in a clear and straightforward manner answering the insurer’s concerns with responses I found to be an honest explanation of his situation before and after the accident. His evidence was also substantially corroborated by the medical information, the testimonies of Dr. Sharma, Mr. Angelone (his employer) and Ms. Radwhana (his daughter). From all indications, Mr. Basra was a hard-working, family man at the time of the accident who was able to function in all aspects of his life. He sustained injuries in his long career at Ford Motors and continued to work, though at times in pain.

There is no evidence before me that Mr. Basra is not trustworthy or that he purposely mislead assessors. Dr. Edward Mah, a chiropractor who conducted an insurer examination, testified that he detected exaggerated pain responses, inconsistent tenderness and overreaction when there was nothing physical to explain Mr. Basra’s pain. However, in cross-examination, he agreed that pain amplification could be a descriptor of chronic pain disorder and clarified that he did not test Mr. Basra for chronic pain.

Dr. Mark Mandel, who conducted a insurer’s psychological assessment, clarified in cross-examination that he did not conclude that Mr. Basra was a malingerer in that he was not intentionally pretending to have symptoms and there was no conscious motivation to show a psychiatric disorder. He also testified that Mr. Basra’s behaviour did not lend to exaggeration.

Following this accident, multiple physicians across various disciplines have diagnosed Mr. Basra as suffering from chronic pain disorder, depression and anxiety. A large part of said diagnoses are dependent upon some element of self-reporting by Mr. Basra. Dr. Sharma testified that he has been treating Mr. Basra for over 11 years, and that he has no reason to doubt the sincerity of Mr. Basra’s pain complaints, and believes the complaints to be genuine.

I find that Mr. Basra has done his best to report and to provide the various medical assessors with an accurate history of his pre-accident medical health. I find that at times when Mr. Basra reported full resolution of his pre-accident issues, he was referring to the impact of those injuries on his life before the accident, which was minimal. However, subsequent to this accident, Mr. Basra has been consistent in reporting the following physical and psychological impairments: neck, lower back, right shoulder, left side of head, headaches, depression, sleep distress, anxiety.

Causation:

The issue of causation has been the subject of much jurisprudence. The extent of coverage for the consequences of a motor vehicle accident is governed by the “as a result of” test, which requires proof that the accident materially or significantly contributed to the disability or impairment that gives rise to the claim for benefits.²

It is uncontested by Mr. Basra that he presented with pre-accident pain complaints, specifically related to his lower back and right shoulder. Yet, despite these pre-existing issues, the evidence supports that he was fully functioning in all realms of his normal life just prior to the motor vehicle accident. For the following reasons, I find that the evidence shows that Mr. Basra’s pre-existing issues do not fully explain his current disability and that as a result of the accident, he displays new medical conditions and has suffered physical impacts beyond those he might have had due to his pre-existing conditions.

The Lay Witnesses

The lay evidence, including the testimony of Mr. Basra, supports that prior to the accident he was able to perform his personal care and housekeeping duties, he worked in a physically demanding job, and he enjoyed his family, and was actively engaged in many social and recreational pursuits.

Ms. Rupinderjit Randhawa, Mr. Basra’s daughter testified at the hearing. Her credible evidence supported that Mr. Basra was fully functioning in all aspects of his life before the accident. Through observation, she marked his present decline to the date of the accident. She confirmed that she lived with her parents at the time of the accident. She noted an increase in his pain complaints the day after the accident. She stated that prior to the motor vehicle accident her father was very active, taking care of his grandchildren, going to the gym, fixing things around the house and grocery shopping. She stated that despite having some back or shoulder problems they did not affect what he would do around the house. In addition, Ms. Randhawa stated that the applicant was a happy type of person before the accident, involved in everyone’s life, very caring, looking after his wife, with a very high energy level. She stated that he was a different person before the accident being energized and motivated. Ms. Randhawa stated that since the accident Mr. Basra gained a lot of weight and became “Mr. Grumpy”. She stated he was depressed and angry, always remaining in his room and losing patience easily with his grandchildren.

Mr. John Angelone, who was Mr. Basra’s direct supervisor at Automotive Specialty, testified that there were no physical restrictions placed on him during the time that he worked there (from May 2009 up to the accident).³ He confirmed that Mr. Basra never had any issues with lifting totes for rims, sorting through thousands of rims in an eight-hour shift, noting that there was a lot of lifting. He testified that Mr. Basra never complained and did a lot of “yard campaigns” (walking on asphalt and climbing in and out of vehicles). However, contrasted to after the accident, Mr. Angelone stated that it was about an hour into his one-day shift that he started to find accommodations for Mr. Basra by offering a softer chair and two different table heights. Mr. Angelone stated that he observed Mr. Basra fidgeting, he was very quiet but could not sit still. He stated that Mr. Basra was doing sorting of small fasteners that day which was a typical job. He observed that Mr. Basra was not carrying the completed boxes of fasteners which weighed around 15 pounds and instead another worker was doing the lifting. He stated that before the accident Mr. Basra met his work expectations but on his one-day return to work after the accident, he did not meet his expectations.

The Medical Evidence

Dr. Sharma’s clinical notes and records chronicle the injuries and impairments that Mr. Basra sustained in the accident and the development of depression and a chronic pain syndrome. Dr. Sharma testified that in the seventy-nine pages of pre-accident clinical notes and records there were no notations of Mr. Basra suffering from pre-accident neck pain. Dr. Sharma also confirmed that prior to the accident there was no diagnosis of chronic pain disorder. Dr. Sharma testified that Mr. Basra’s pre-accident prognosis with respect to his shoulder and lower back pain was “quite good,” as Mr. Basra has continued to work and continued to function with respect to his daily activities.

Dr. Darrell Ogilvie-Harris, orthopaedic surgeon, conduced two orthopaedic assessments on behalf of Mr. Basra. In his report of July 17, 2012, Dr. Ogilvie-Harris acknowledged Mr. Basra’s pre-existing conditions including problems in the cervical and lumbar spine, with no evidence of direct trauma-related damage to the spine, disc bulges and herniations consistent with age-related degenerative change, right shoulder issues including a full thickness tear of the rotator cuff with degenerative changes from as far back as 2007. However, despite these pre-existing conditions, Dr. Ogilvie-Harris wrote:

Despite the degenerative changes, he was working in 2009. He was carrying out his job as an inspector of trucks. There is no indication therefore that he was deteriorating at that time. In other words, the physical work that he was doing was within his capabilities, taking into account the degenerative changes in the spine and rotator cuff tear of the right shoulder.

Dr. Ogilvie-Harris concluded that as a result of the accident Mr. Basra suffered soft tissue injuries to the neck and back, an aggravation of pre-existing degenerative changes which, following the accident, had gone on to develop the features of chronic pain syndrome with central sensitization. He stated that from an orthopaedic point of view the condition was serious because the ongoing pain and functional limitations interfered with Mr. Basra’s activities.

Allstate submits that I should disregard the evidence of Dr. Ogilvie-Harris given that the applicant informed him that his issues had totally resolved before the accident and that he was not taking prescription medication. It submits that because Tylenol 3 was prescribed to him months before the accident, as referenced in the clinical notes of Dr. Sharma, I should conclude that he was taking it on a consistent basis and therefore Dr. Ogilvie-Harris’ opinion was uninformed. Dr. Ogilvie-Harris when confronted with this scenario on cross-examination stated that regular use of Tylenol 3 would suggest that the accident aggravated an already existing injury. Further, I accept Mr. Basra’s evidence that he took Tylenol 3 only when he needed to and on an irregular basis. This is supported by the fact that it is not noted as being prescribed on a regular basis in the pre-accident clinical notes of Dr. Sharma.

In her report of December 16, 2010, following an in-person assessment, Dr. Judith Pilowsky, psychologist, diagnosed Mr. Basra with Posttraumatic Stress Disorder, identified clinical symptoms of depression as well as pain disorder associated with both psychological factors and a general medical condition. She related these impairments to the accident based on her interview with Mr. Basra.

Allstate suggests that I give no weight to Dr. Pilowsky’s opinion as it was based on self-reports and because she did not review any medical records in preparation of her report. However, there is no evidence that Mr. Basra was not being truthful. In fact under “Current Psychological Status”, Dr. Pilowsky records how Mr. Basra was affected since the accident all of which is supported by the clinical notes and testimony of Dr. Sharma.

I reject the suggestion that Mr. Basra had a history of pre-accident psychological issues. Allstate points to a clinical note dated August 20, 2008 by Dr. Antowan, who practices at a walk-in clinic which Mr. Basra attended. The note suggests that Mr. Basra attended that day complaining of anxiety and depression. The OHIP summary for Mr. Basra shows an entry for attendance with Dr. Antowan on this date. When this note was put to Dr. Sharma on cross-examination, he testified that he was unsure if said note pertained to Mr. Basra, as the note referred to the patient as a female, and Dr. Sharma questioned why a walk-in clinic would request a fecal sample, something usually ordered by a family doctor. Assumedly, this note was produced by the clinic after a request for the clinical notes pertaining to Mr. Basra, however, this one page note does not specifically show that it relates to Mr. Basra while other notes from that same clinic clearly label Mr. Basra at the top of each page. The insurer points out that Mr. Basra was being treated for tinnitus at the time and in this note the patient was speaking to Dr. Antowan about tinnitus, but I question why Mr. Basra would go to a walk in clinic to speak about this issue when he is already being treated for same by his family doctor who had just referred him to a specialist approximately 4 months earlier. In addition, if Mr. Basra was experiencing anxiety and depression, I find that in all likelihood he would have mentioned it to Dr. Sharma at some point even if he spoke about it to Dr. Antowan. Dr. Sharma’s notes have no reference to this issue pre-accident, contrasted with numerous references in his notes after April 6, 2010 documenting depression, headache complaints, sleep distress, anxiety.

The question before me is whether or not the motor vehicle accident caused or materially contributed to Mr. Basra’s current condition and complaints. The general test for causation is the “but for” test and requires that the applicant show on a balance of probabilities that but for the motor vehicle accident, his current condition would not have occurred. The Supreme Court of Canada in Athey v. Leonati stated that when the “but for” test is unworkable causation can be established where the applicant shows, on a balance of probabilities, that the accident “materially contributed” to the current condition. The Supreme Court stated that:

The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury . . . A contributing factor is material if it falls outside the de minimis range . . .

In Snell v. Farrell, [supra], this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision . . . it is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.⁴

I find that the preponderance of evidence indicates that Mr. Basra was injured as a result of the accident and currently suffers from medical conditions and physical limitations that did not exist pre-accident. I find that as a result of the accident, Mr. Basra sustained injury to his back and neck, exacerbated an already existing injury to his right shoulder and lower back, and went on to develop depression and anxiety.

I am persuaded by the lay evidence that Mr. Basra was fully functioning just prior to the accident and that immediately following the accident his life significantly changed. Mr. Basra has provided reliable medical evidence, consistent with his testimony, that as a result of this accident, he continues to suffer from ongoing chronic pain, physical limitations, emotional and cognitive difficulties. Despite his pre-accident history, I find that Mr. Basra was functioning at work and at home and immediately after the accident he was unable to function to the same degree. I also accept the evidence of Drs. Sharma, Pilowsky and Ogilvie-Harris that as a result of the accident, Mr. Basra went on to develop chronic pain and depression which was materially caused by the accident.

Income Replacement Benefit:

At the time of the accident, Mr. Basra had retired from Ford Motors and had commenced a job with Automotive Specialty.

Part 2 of the Schedule deals with income replacement benefit and s. 4 outlines the eligibility criteria for the first 104 weeks after the accident. Mr. Basra was employed at the time of the accident, therefore the relevant part of s. 4 states that he is entitled to an income replacement benefit if he suffers a substantial inability to perform the essential tasks of his employment.

In his report of November 9, 2012, Dr. Ogilvie-Harris assessed Mr. Basra and reviewed additional medical information. Dr. Ogilvie-Harris confirmed that Mr. Basra had ongoing pain with functional limitation and a chronic pain syndrome with central sensitization. Mr. Basra was examined for Waddell’s signs and Dr. Ogilvie-Harris concluded that they indicated the presence of a chronic pain syndrome with central sensitization. Dr. Ogilvie-Harris stated that it was his opinion that Mr. Basra had a complete inability to engage in any form of employment. He noted that he did not have the physical capability of returning to either his pre-accident employment or returning to the labour market on a consistent basis.

In a report dated September 16, 2010, Dr. Michael West, orthopaedic surgeon, assessed Mr. Basra. Despite his opinion being counter to that of Dr. Ogilvie-Harris with regard to Mr. Basra’s disc herniation at L5-S1, in response to the question of whether or not the applicant’s accident-related injuries prevent him from returning to his pre-accident employment as an inspector, Dr. West responded:

Prior to the subject accident, Mr. Basra was employed full-time as a vehicle inspector for automotive specialists. Since the injuries of September 9, 2009, he has not recovered sufficiently that he would be able to meet the physical demands of this job, which involves sometimes being in awkward positions to inspect vehicles, kneeling, bending, turning and twisting. At the present time, he is unable to work.

Dr. Sharma, despite filling out the forms incorrectly, indicated on disability certificates dated August 10, 2010 and February 18, 2011 that Mr. Basra was unable to return to work for an anticipated duration of more than 12 weeks because of disability and pain from injuries sustained in the motor vehicle accident.

Allstate relies on the report and testimony of Dr. Mah, to support its termination of income replacement benefits. I find Dr. Mah’s evidence that Mr. Basra was no longer suffering from injuries from the accident to be unconvincing. Dr. Mah assessed the applicant in-person on January 14, 2010. He relied solely on the Mr. Basra’s reporting regarding his pre-accident condition. Despite being told about the two work-related injuries in 1982 and 2007, he did not request or review the pre-accident notes of Dr. Sharma. Although he recorded Mr. Basra as noting total symptom resolution from these incidents, it is unclear given the evidence as a whole, what Mr. Basra meant when he indicated this to Dr. Mah. Mr. Basra testified that prior to the accident he had no restrictions in using his right shoulder except for reaching above his head and that this pain was only occasional. He also testified that prior to the accident he had recovered from his back injury from 1982 but that he only occasionally had pain but he continued to do his normal duties.

Dr. Mah responded to the insurer’s question that Mr. Basra fell within the WAD II PAF Guidelines and concluded that he was no longer entitled to an income replacement benefit. However, without a better understanding of Mr. Basra’s pre-existing issues, I find that Dr. Mah did not fulfill his responsibility to take a prior history of injury, illness and/or disability, a prior history of neck problems and/or whiplash injury, and a prior history of assessment and treatment.

In addition, although Mr. Basra had not yet been diagnosed with chronic pain, Mr. Basra reported to Dr. Mah that his overall improvement from accident-related impairments was 20%. He also reported that his current pain was constant in the neck, right shoulder, and lower back with headaches. Dr. Mah also noted Mr. Basra’s reports that he was fully independent prior to the accident. Dr. Mah concluded in his report:

Based upon the reported mechanism of injury, document review and today's chiropractic musculoskeletal evaluation, it is my opinion that initially Mr. Basra sustained soft tissue injuries consistent with WAD 2, right shoulder contusion/ strain and lumbar strain/sprain. Today, in spite of Mr. Basra’s reported ongoing symptoms, other than findings of pain amplification, no valid indicators of accident-related physical impairment were identified. The clinical examination was technically difficult being hampered by inconsistencies secondary to reported pain without valid physical findings.

However, in cross-examination, Dr. Mah admitted that pain amplification could be a descriptor of chronic pain and agreed that there could be a physical cause for chronic pain. However, at no time, according to Dr. Mah, did he test Mr. Basra for chronic pain. Dr. Mah confirmed on cross examination that he has never authored a single article on the subject of chronic pain disorder and his last documented hours for chronic pain management were in February 2005. Subsequent to the assessment with Dr. Mah, Mr. Basra was diagnosed with chronic pain by Dr. Ogilvie-Harris. Dr. Ogilvie-Harris, who testified at the hearing, was qualified as an expert in orthopaedic surgery with a special interest in chronic pain. I prefer the expert evidence of Dr. Ogilvie-Harris with respect to Mr. Basra’s chronic pain and give little weight to Dr. Mah’s opinion regarding Mr. Basra’s ability to return to his employment.

I rely on the opinions of Drs. Ogilvie-Harris, Pilowsky and Sharma which support that Mr. Basra was unable to complete his pre-accident employment. In fact, I am persuaded by the totality of the evidence that Mr. Basra is substantially unable to complete the tasks of his pre-accident employment and he is therefore entitled to an income replacement benefit for the remainder of the 104-weeks from the date of loss.

The insurer is not required to pay an income replacement benefit for any period longer than 104-weeks from the accident, “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.”

The testimony of Dr. Sharma was compelling as he articulated Mr. Basra’s current level of function. Dr. Sharma testified specifically that he has not seen much improvement in Mr. Basra’s condition since the accident; rather he has witnessed a decline in Mr. Basra’s condition over time. Dr. Sharma stated that given Mr. Basra’s daily pain and depression and his current level of functioning with regard to neck, shoulder, and lower back, that it was his opinion that he was not employable. Dr. Pilowsky mirrored this sentiment when she testified that in her professional capacity Mr. Basra’s functioning was in a very severe range which she noted had worsened in her subsequent assessment. Dr. Ogilvie-Harris in his report of November 9, 2012, concluded that Mr. Basra did not have the physical capability of returning to the labour market on a consistent basis and concluded that the prognosis for a return to work in the future was guarded.

I accept the opinions of Drs. Sharma, Ogilvie-Harris, and Pilowsky that Mr. Basra has a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. Mr. Basra is therefore entitled to a weekly income replacement benefit beyond the 104-week mark on an ongoing basis.

Housekeeping and Home Maintenance:

Mr. Basra claims entitlement to housekeeping and home maintenance expenses pursuant to s. 23 of the Schedule, at the rate of $100.00 per week from February 3, 2010, to September 9, 2011 for services provided by Ms. Randhawa.

In his report of January 14, 2010, Dr. Mah denied Mr. Basra’s entitlement to housekeeping without having access to the in-home assessment of December 1, 2009 or the functional capacity evaluation dated December 17, 2009, both completed by Dr. Wong. I also note that Dr. Mah did not actually attend the Basra residence and conduct his own assessment. I therefore give Dr. Mah’s opinion about Mr. Basra’s housekeeping claim little weight.

The testimony of both Mr. Basra and his daughter pertaining to Mr. Basra’s substantial inability to engage in his pre-accident housekeeping and home maintenance activities was compelling. Allstate points to inconsistencies between the daughter, Ms. Randhawa’s testimony and the invoices, however, I accept that Mr. Basra incurred housekeeping and home maintenance in the amount of $100.00 per week for the specified time, based on the testimony of Mr. Basra and his daughter combined with the medical support for this need, evident in the notes and forms completed by Dr. Sharma, the report of Dr. Wong and report of Dr. Ogilvie-Harris. Given my findings surrounding causation, I find that Mr. Basra is entitled to this benefit as claimed.

Medical Benefits:

$2,597.79 for physiotherapy as set out on a treatment plan dated November 16, 2009:

The proposed goods and services as outlined in the treatment plan include: $63.72 for cost of completing the OCF-18, $94.09 for cost of assessment, $2,069.98 rehabilitation and $370.00 for tens unit. This treatment plan was denied on January 14, 2010, based on the report authored by Dr. Mah. Dr. Mah concluded that this treatment plan was partially reasonable and necessary at a total cost of $1,851.43. Dr. Mah did not agree with the proposed number of sessions and concluded that only 18 sessions were needed instead of the 22 sessions recommended in the treatment plan. In addition Dr. Mah denied the need for the tens machine.

In his interview, Dr. Mah had determined that Mr. Basra was attending physiotherapy 2 times per week. The proposed treatment plan indicated 4 sessions of physiotherapy per week. Dr. Mah testified that in his experience generally, a patient will not attend more than three times a week. Given that the information from Mr. Basra was that he was attending 2 times a week, I find the opinion of Dr. Mah reasonable that 3 sessions a week for the proposed time period was appropriate. As well, Mr. Basra offered no evidence that he needed a TENS machine at his home. Dr. Mah noted in his report that this was not reasonable or necessary because Mr. Basra reported to him that he did not receive significant benefit from prior treatment sessions that included electrotherapy. Since it is his onus, I find that Mr. Basra has not shown that the purchase of a TENS machine was reasonable and necessary.

$1,851.48 for massage and pool therapy as set out on a treatment plan dated December 9, 2009

Given my findings that Mr. Basra developed a chronic pain disorder as a result of the accident, I find that he has proven that this treatment plan was reasonable and necessary as supported by Dr. Sharma. I do not rely on Dr. Mah’s opinion since it was based on there being no existence of a physical impairment, orthopaedic or neurological.

$964.36 for assistive devices as set out on a treatment plan dated January 4, 2010

The treatment plan recommended the following assistive devices: cervical pillow, heating pad, long-handled shoe horn, obus form low back support. The treatment plan was denied based on a paper review conducted by Dr. Mah. The devices were recommended in the orthopaedic report authored by Dr. West dated September 16, 2010. The back brace was recommended by Dr. Sharma on July 8, 2011. Dr. Mah maintained his position with respect to the denial despite his previous acknowledgement that Mr. Basra required passive and active physiotherapy treatments. Given my findings on causation, I find that this treatment plan was reasonable and necessary.

$4,232.20 for psychological counselling as set out on a treatment plan dated November 26, 2010

Mr. Basra has proven, on a balance of probabilities that he suffered a psychological impairment as a result of the accident. Following the in-person assessment, Dr. Pilowsky recommended twelve sessions of psychological treatment to assist Mr. Basra in coping with his pain, disturbed sleep, fatigue, loss of energy, reduced memory and concentration and his anxiety when travelling in a motor vehicle.

Dr. Mandel conducted an in-person assessment of Mr. Basra on behalf of Allstate on January 13, 2011, and prepared a report dated January 27, 2011, in order to establish the reasonableness of Dr. Pilowsky’s treatment plan. Despite his testimony that he did not have the impression that Mr. Basra’s behaviour did not lend to exaggeration, he concludes in his report that the proposed treatment was not reasonable and necessary as “the veracity of Mr. Basra’s claims of dysfunction has been called into question due to the inconsistencies of data obtained.” Dr. Mandel concluded that based on his interview with Mr. Basra, his subjective self-report was inconsistent with the reports of dysfunction listed on the treatment plan. However, Dr. Mandel had not been provided with relevant portions of Dr. Sharma’s clinical notes which document depression at the six month mark after the accident. Dr. Mandel agreed on cross-examination that this was important information. In addition, Dr. Mandel admitted in cross-examination that Mr. Basra’s Personality Assessment Inventory and Pain Patient Profile scores suggested depression and he was also aware that he was taking depressive medications.

Despite the opinion of Dr. Mandel, and given my findings on causation I find that there is ample evidence to support that the proposed treatment plan of Dr. Pilowsky is reasonable and necessary.

Cost of Examinations

$110.00 for an OCF-3

The parties reference Allstate’s refusal to pay $110.00 for a disability certificate denied on May 16, 2011. The actual date of the disability certificate was never identified by the parties. A disability certificate of February 18, 2011 appears to be the only one prepared around that period. I find that this is payable under s. 35 of the Schedule. Although Mr. Basra was not making a “new” application for an income replacement benefit, it was always known that he was claiming same. The disputed disability certificate identified chronic pain syndrome as being developed since the accident but not related to the accident. Despite Dr. Sharma’s clarification in his testimony that he incorrectly filled out this part of the form, Allstate states in closing that the incorrectly completed form should signify that there is no entitlement. I find that the disability certificate, despite being completed incorrectly, was reasonable as it identified a new and relevant diagnosis that supported Mr. Basra’s ongoing claim for income replacement benefits.

$700.00 being the outstanding balance of a TMJ assessment as set out on an OCF-22 dated February 17, 2010

A treatment plan for a TMJ assessment in the amount of $1,900.00 was submitted by Mr. Basra. After an insurer’s examination, it was determined that the assessment was reasonable but that an amount of $1,200.00 was more appropriate, leaving the outstanding balance of $700.00 being claimed.

Mr. Basra did not present any evidence to support that the amount that was approved, being $1,200.00 was inappropriate and that the proposed $1,900.00 was more reasonable. Therefore I find that Mr. Basra is not entitled to the outstanding balance.

$1,383.00 for a functional capacity evaluation as set out on an OCF-22 dated September 7, 2010

An FCE was conducted on behalf of Mr. Basra on December 17, 2009, by Dr. Jonathon Wong. The OCF-22 dated August 30, 2010 proposes a further FCE, this is 8 months after the last assessment was conducted. Since the initial assessment, Mr. Basra was diagnosed with chronic pain and depression. Given my finding that this was a result of the motor vehicle accident, I find it reasonable that another assessment be completed in order to assess Mr. Basra’s needs at the time.

$2,301.97 for an orthopaedic assessment as set out on an OCF-22 dated March 12, 2010:

Dr. West completed this assessment with a report dated September 16, 2010. Dr. Zalzal, an orthopaedic surgeon, conducted a paper review on behalf of Allstate. It is important to note that Dr. Zalzal had in his possession the clinical notes and records of Dr. Sharma from September 26, 2006 to January 6, 2010, which reveal the pre-existing medical problems; specifically a torn right rotator cuff for which surgical intervention was proposed. Despite this, Dr. Zalzal erroneously concludes that there was no objective medical evidence of any significant ongoing traumatic impairment or any outstanding orthopaedic surgical issues. I also note in his clinical note dated March 8, 2010, that Dr. Sharma independently concluded that an orthopaedic assessment was both reasonable and necessary and he initiated a referral through OHIP to Dr. Naumetz. I find that this assessment is reasonable.

$2,250.00 for an orthopaedic assessment as proposed on the OCF-22 of March 12, 2010:

No submissions were provided concerning this proposed assessment. Given that I have found that an orthopaedic assessment in the amount of $2,500.00 pertaining to an OCF-22 of the same date, I find that this proposed assessment is not reasonable and necessary.

$713.72 for a follow-up job-site assessment as set out on an OCF-22 dated March 26, 2010

Mr. Basra attempted a return to work in October 2010. Despite this being a failed attempt, it is evidence of Mr. Basra’s desire to return to work. Prior to this attempt to return to work, Mr. Basra requested a follow-up job-site assessment. This request was reasonable given his injuries and the fact that he did attempt a return to work approximately 6 months later. The assessment was denied after a paper review authored by Dr. Mah dated April 13, 2010. Given my finding concerning the injuries sustained in this accident, I do not rely on the opinion of Dr. Mah and find that the proposed assessment was reasonable.

$2,373.49 for a neurological assessment as set out on an OCF-22 dated April 15, 2010:

A pre-screen interview was conducted on April 13, 2010, where Mr. Basra reported daily headaches, referral of pain from the neck to the bilateral shoulder, referral of pain from the low back to both legs, numbness and tingling to the ankles, concentration difficulties and decrease of memory. Dr. Prigozhikh reported that “taking into consideration that reasonable time has passed since the date of the MVA, the patient still experiences headaches that are multi-factorial in nature as they seem to occur in connection with different events. This is one of the issues that require immediate attention at this point in time as there is a risk of it becoming chronic.”

The purpose of the assessment was to determine if there was an accident-related neurological impairment affecting a return to activities of daily living. In addition, the assessment was proposed to address if further investigations or treatment was reasonably required. The assessment was denied with an insurer fax back dated April 15, 2010, likely as a result of the incorrectly completed disability certificate. However, given my findings on causation, I find that the proposed assessment was reasonable.

Special Award

Mr. Basra feels that he is entitled to a special award based on Allstate’s conduct. On its face, it appears as if Allstate closed its mind to the idea that Mr. Basra’s injuries resulted from the motor vehicle accident and continually pointed to his pre-accident issues.

The insurer is liable to pay a special award if I find that it unreasonably withheld or delayed payment of the benefits that I have found owing as set out in s. 282(10) of the Insurance Act. The main issue for me in examining whether or not a special award should be ordered in this case is the disability certificates completed by Dr. Sharma dated August 10, 2010, February 18, 2011 and July 4, 2012. Each of these disability certificates indicate that Mr. Basra’s injuries were not related to the motor vehicle accident on page 3. It is clear now, after hearing Dr. Sharma’s testimony, that he had been misreading that section of the form and thought he was indicating that the chronic pain and depression issues were a result of the accident. I believe his testimony and made my findings accordingly, however, I do not see why the adjuster when receiving these forms would feel a need to allow for examinations or look to pay an income replacement or other various benefits when the family doctor is indicating that Mr. Basra’s issues were not related to the accident, especially given the existence of pre-accident issues. While there were other indicators in the file linking the accident to Mr. Basra’s current complaints, I cannot find that the insurer’s conduct was “unreasonable” given the aforementioned disability certificates.

I therefore find that Allstate did not act unreasonably and a special award is not warranted.

Surveillance

At the outset of the hearing, Mr. Basra made a motion that I exclude the surveillance evidence. He referred to correspondence since the pre-hearing where he continually requested the surveillance evidence. Allstate did not provide the surveillance documentation until 32 days before the hearing and did not include still photographs or a copy of the investigators’ notes. The remainder of the surveillance evidence, namely the still photographs and investigators’ notes were not delivered to Mr. Basra until November 28, approximately 20 days before the hearing.

The Dispute Resolution Practice Code (DRPC) deals with surveillance at Rule 40 which states:

40.1 If a party intends to rely on any portion of surveillance or investigative evidence, including videotapes, photographs, reports, notes and summaries of surveillance observations or investigations, at least 30 days before the hearing, the party shall provide:

(a) the names and qualifications of the persons who secured the investigative or surveillance evidence, the dates, times and places where any surveillance or investigation was undertaken; and

(b) copies of all videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute.

Rule 40 allows a party to deliver the surveillance evidence “at least 30 days” from the date of hearing. The Rule is specific on what is to be provided to the other party. If an insurer is going to wait until the last moments to deliver its surveillance evidence, it is incumbent upon it to ensure that it provides everything set out in the Rule, if it exists. The Rule states that failure to do so means that they may not rely on any portion of the surveillance or investigative evidence. I note that Rule 39 which deals with evidence as a whole, allows for the delivery of documentation less than 30 days before a hearing in “extraordinary circumstances” whereas there is no such allowance in Rule 40. Even if Rule 39 applied to this situation, I find that there was no extraordinary circumstance that would have allowed for the delivery of this documentation less than 30 days before the hearing. Therefore, I excluded the surveillance evidence.

EXPENSES:

If the parties are unable to reach an agreement on expenses, they may request an appointment before me in accordance with Rule 79 of the DRPC.

June 5, 2014

Alec Fadel Arbitrator

Date

Financial Services Commission of Ontario