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

Neutral Citation: 2015 ONFSCDRS 20

FSCO A12-006193

BETWEEN:

MIKHAIL GARMIDER

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

Before: Alec Fadel

Heard: October 20, 21, 22, 23, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Mikhail Garmider represented himself Bruce A. Keay for Co-operators General Insurance Company Russian Interpreter: Irina Filippova

Issues:

The Applicant, Mikhail Garmider, was injured in a motor vehicle accident on June 8, 2009 and received statutory accident benefits from the Insurer, Co-operators General Insurance Company (“Co-operators”), payable under the Schedule.¹ Co-operators denied entitlement to a non-earner and housekeeping benefits along with several treatment plans. The parties were unable to resolve their disputes through mediation, and Mr. Garmider 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. Garmider entitled to a non-earner benefit at the weekly rate of $185.00 from June 8, 2010 to date and ongoing?
Is Mr. Garmider entitled to a housekeeping and home maintenance benefit at the weekly rate of $100.00 from December 8, 2009 to December 8, 2011?
Is Mr. Garmider entitled to the following medical benefits:

i) $1,992.92 relating to a treatment plan dated January 8, 2010;

ii) $9,611.10 relating to a treatment plan dated July 12, 2010; and

iii) $7,377.47 relating to a treatment plan March 2, 2010?

Is Mr. Garmider entitled to interest on overdue benefits?
Is Mr. Garmider entitled to his expenses of this arbitration?
Is Co-operators entitled to its expenses of this arbitration?

Result:

Mr. Garmider is not entitled to a non-earner benefit.
Mr. Garmider is not entitled to housekeeping and home maintenance.
Mr. Garmider is not entitled to any of the claimed treatment or assistive devices set out on three treatment plans dated January 8, 2010, March 2, 2010, and July 12, 2010.
There is no interest payable.
The parties are encouraged to resolve the issue of expenses in respect of the arbitration under section 282(11) of the Insurance Act.

EVIDENCE AND ANALYSIS:

Introduction

In disputes regarding accident benefits at FSCO, the applicant bears the burden of proving his or her entitlement to the claimed benefits. The Schedule sets out various tests that an applicant must meet before he or she will be entitled to a benefit. For example, with regard to a claim for a non-earner benefit, an applicant must show that he or she has suffered “a complete inability to carry on a normal life” as a result of the motor vehicle accident before he or she can become entitled to the benefit.

In this case, Mr. Garmider claims that as a result of the 2009 accident he suffered lower back pain or an exacerbation of a previous injury concerning his lower back, radiating leg pain, left shoulder pain and neck pain that has had an ongoing debilitating effect on his day-to-day life. As a result of the lower back injury from the 2009 accident, Mr. Garmider claims that he had bouts of debilitating pain to the extent that he needed to be treated in hospital with morphine, became inactive, needed back surgery and was unable to perform his daily activities.

The insurer’s position is that the 2009 accident was minor in nature and resulted in soft-tissue whiplash associated disorder ("WAD") II injuries which have long since resolved. It relies primarily on the ambulance call and emergency record created on the day of the accident to support that Mr. Garmider did not injure his lower back in the 2009 accident. The insurer also submits that Mr. Garmider’s impairments long pre-dated the 2009 accident and are a result of two workplace injuries in 1996 and 1997.

For the reasons provided below, I find that the evidence does not support that Mr. Garmider is entitled to any of the claimed benefits because of injuries sustained in the motor vehicle accident of June 8, 2009. I find that, at most, he sustained soft-tissue WAD II injuries in the accident that did not provide any long-term complications. I find that there is overwhelming evidence that Mr. Garmider’s complaints pre-existed the 2009 motor vehicle accident and are unrelated to it. Specifically, long before the accident, Mr. Garmider was involved in a serious workplace accident where he suffered significant injuries that had an ongoing effect and for which he is still receiving Workplace Safety and Insurance Board ("WSIB") benefits. In examining the evidence, I find that Mr. Garmider has failed to prove that the 2009 accident caused or contributed to his ongoing physical and mental impairments.

The Accident of June 8, 2009

There was no full police report provided regarding the motor vehicle accident of June 8, 2009. The ambulance call report notes that Mr. Garmider was a belted driver, driving approximately 40 km per hour and was side swiped by a minivan taxi on the passenger side of his vehicle, causing some damage to the front wheel well. According to the ambulance call report, there was no internal compartment damage, the air bags did not deploy and both vehicles appeared to be at low speeds at the time of impact. Mr. Garmider complained of neck stiffness and left shoulder pain; he was ambulatory and there were no obvious signs of external trauma.

Mr. Garmider was taken by ambulance to Humber River Regional Hospital and the emergency record shows similar complaints. X-rays were ordered for the left shoulder, chest and cervical spine. The left shoulder x-ray showed an impacted fracture of the humeral neck and no dislocation, the x-ray of the chest was normal and the cervical spine showed moderate degenerative changes with alignment within normal limits. In cross-examination, Mr. Garmider stated that he did not complain of back pain at the hospital on the day of the accident. There was also no mention of leg or knee pain in either of these reports.

Mr. Garmider testified that the day following the accident he was out for his routine walk and as he was crossing a bridge he felt numbing pain in both legs, as if nails were being driven into them. He stated that he attended at hospital the same day and from that point on he stopped going for his walks. He testified that he gained weight because of his inactivity. He testified that prior to the 2009 accident he was always very active and needed to walk a lot as advised by his medical professionals.

Pre-Accident History

In 1996 while Mr. Garmider was working as a press operator, he hurt his back and was off work for approximately eight months. On August 13, 1997, the third day of a trial work assignment training as a tractor-trailer commercial driver, Mr. Garmider was involved in a serious accident when he was crushed between two transport trucks as he was unloading a trailer. As noted in the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") decision dated January 17, 2008, Mr. Garmider sustained the following injuries in that accident:

As a result of the accident the worker suffered a humeral neck fracture (broken shoulder) on the left side, bilateral soft tissue swelling and contusion of the anterior thigh compartments with no neurovascular compromise. Dermatologically, the worker’s legs were affected and he developed recurrent cellulitis. He developed a major depressive disorder. He developed a frozen shoulder. He suffered a myofascial injury to the lumbar spine. ²

Mr. Garmider testified that he had not returned to work since the accident of 1997 and continued to receive benefits from WSIB, even at the time of this hearing. A letter dated August 9, 2004, from WSIB to Mr. Garmider indicated that, on comparing information from the family doctor with the American Medical Association ("AMA") Guides, he was assessed with a 60% whole person impairment ("WPI"). As a result, Mr. Garmider began receiving a long-term benefit with a non-economic loss component from WSIB. Also in 2004, WSIB conducted a personal care assessment indicating that Mr. Garmider still needed help bathing, dressing, changing the bed, and looking after clothes, and six hours of weekly personal care was recommended. In February 2005, Mr. Garmider was receiving a monthly allowance for personal care in the amount of $276.14. On cross-examination, Mr. Garmider stated that he presently receives $356.00 each month for a personal care allowance from WSIB.

Dr. E. Light, psychiatry, treated Mr. Garmider on a near weekly basis for two years and in a report dated April 30, 2008, he noted that there had been little to no improvement in Mr. Garmider’s anxiety and constant pain related to the injuries to his neck, shoulder and legs. Dr. Light indicated that pain medication was not working and that Mr. Garmider had lost interest in outside activities. Mr. Garmider himself reported that his physical state was deteriorating, as set out in Dr. Light’s report. Dr. Light opined that Mr. Garmider had to be supervised constantly in order to maintain his emotional state.

Dr. B.K. Makos, who conducted a chiropractic assessment of Mr. Garmider at the insurer’s request, referred to Mr. Garmider’s medical file in his report dated August 12, 2010, noting that prior to the 2009 accident his lower back condition was “severe and disabling.” Dr. Makos wrote:

I also had the opportunity to review clinical notes and records from Dr. Livshin, the family physician, extending back to 2004 as well as Ministry of Health billing records. At least based on the records I was provided to review, Mr. Garmider has been receiving periodic injections for the treatment of his lower back from his family physician extending as far back as six years prior to the June 8, 2009 motor vehicle accident. Dr. Livshin provided a report several years ago to Mr. Garmider’s legal representative at the time, explaining that he was significantly disabled, could not work and could not be retrained to work. Also pertinent to my review are several comments made by the family physician over several years prior to the 2009 accident that Mr. Garmider’s back pain was disabling to the point where he could not perform personal hygiene functions and he could not walk.

Causation

Mr. Garmider was the only witness to testify on his own behalf and he provided little documentary evidence to support his claims that the 2009 accident contributed to his current condition or the difficulties that he has encountered since the accident. Mr. Garmider relies on his testimony, a bone scan from 1998, and two magnetic resonance imaging ("MRI") results that post-date the 2009 accident. He also provided a medical record from Sunnybrook Hospital ("Sunnybrook") that consisted mostly of documents from 2012 with the occasional subjective reference attributing lower back pain to the 2009 accident, along with a similar medical record from Mackenzie Richmond Hill Hospital from 2011/12. He submitted a letter from Dr. Richards, surgeon-in-chief, to Dr. Livshin, general practitioner, who saw Mr. Garmider as a result of a pedestrian motor vehicle accident that occurred in August 27, 2012, with no mention of the 2009 accident, and an operative note from Sunnybrook dated May 9, 2013, regarding surgery to address lumbar spinal stenosis.

The insurer filed a four-volume WSIB brief relating to Mr. Garmider’s physical and psychological impairments resulting from two work-related incidents in 1996 and 1997. The insurer submits that any current issues are a result of Mr. Garmider’s significant pre-accident medical history. Despite Mr. Garmider’s contention that he began to improve from his 1996 injuries as early as 2004, the insurer points to significant evidence that this was not the case. The insurer also filed several insurance assessments and called two expert witnesses in support of its position.

During the hearing, Mr. Garmider indicated that his problems from the 1996 and 1997 incidents lasted until 2004 when he says he began to improve. However, this is not supported by the WSIB personal care assessment in December 2004 or by the 2004 finding of a 60% WPI. Further, Dr. Light assessed Mr. Garmider in November 2006 and concluded that he still had depression, anxiety, nervous tension, problems sleeping, constant pain, and numbness. The November 28, 2006 diagnoses are similar to that of Dr. F. Yaroshevsky, psychiatry, in a report he prepared on December 2, 2002, as part of the WSIB file.

Mr. Garmider also testified that he was getting better just prior to the motor vehicle accident of 2009. I find, however, that the Ontario Health Insurance Plan ("OHIP") summary does not support this. In examining the summary, all visits for treatment and testing in the six months before the accident total 94 entries. Mr. Garmider attended with Dr. Yaroshevsky throughout 2008 and 2009, sometimes several times a month, and only three days before the 2009 accident. He was also treated for low back pain in March 2009.

MRI Scans

Mr. Garmider relies on two MRI reports of August 27, 2009, and September 9, 2014³, to support his entitlement to the claimed benefits and argues that the findings are related to the 2009 accident. However, based on the following evidence, I find that the MRIs show issues that are unrelated to injuries sustained in the 2009 accident.

A letter dated August 6, 2014, from Dr. T.O. Gyenes, after a referral from Dr. Livshin, noted that Mr. Garmider was referred because of spinal stenosis. The letter notes that Mr. Garmider reported that the low back pain started on July 9, 2009, and had improved for several months after back surgery on May 9, 2013. Dr. Gyenes ordered a MRI of the lumbar spine dated September 9, 2014, and noted:

Changes consistent with an L3-5 posterior root decompression and L4 laminectomy; enhancing epidural fibrosis with tiny metallic and or magnetic susceptibility artefacts in the posterior subcutaneous soft tissues of the lower lumbar spine.
Multilevel degenerative changes, particularly at L3-4 where moderate to marked narrowing of the right and left intervertebral foramina was noted, and at L4-5 where marked bilateral intervertebral foraminal narrowing was noted.

Dr. Gyenes referred to the MRI dated August 27, 2009, noting that it reported to show:

multilevel DDD with mild L3-4 spinal stenosis and moderate spinal stenosis at L4-5 where severe narrowing of that neuroforamina was noted bilaterally. In addition there was an increased signal around the cauda equine and a repeat MRI was scheduled.

The lumbar spine MRI from September 18, 2009 was reported to show what is described as focal cauda equina CSF prominence which may be related to cyst vs. distortion of nerve roots from entities such as arachnoditis.⁴

Dr. Gyenes noted his recommendation for physical restrictions – namely, to avoid prolonged walking, repetitive use of stairs, heavy lifting and carrying and strenuous pushing as well as strenuous or repetitive bending. I find it important to note that Dr. Gyenes specifically wrote in his letter of August 6, 2014, to Dr. Livshin:

I called your office to clarify the history and you indicate that the patient has a history of a crush injury with recurrent cellulitis of the thighs and calves and that this is now controlled.

The MRI reports from August and September 2009 show objective injuries but the medical evidence supports that this did not originate from the 2009 accident. Dr. J. Clifford, physiatrist who completed an insurer examination, testified that the MRI showed a very old injury that occurred eight to ten years before and testified that it was not caused in the 2009 accident. In his report of May 20, 2014, Dr. Clifford noted that Mr. Garmider’s back surgery in 2012 was to address symptoms of neurogenic claudication secondary to the spinal stenosis identified on the MRI of August 9, 2009. Dr. Clifford related this to long-standing degenerative changes that were well developed by the 2009 accident and therefore not attributable to it. I find that this was supported by Dr. Gyenes in his letter of November 2009, where he clarified the history with Dr. Livshin and referred to the crush injury history and not the 2009 accident.

Dr. Clifford was very clear in his testimony that the MRI from August 2009, two months after the accident, showed severe degenerative changes in the lower back that had been there for many years. Despite Mr. Garmider’s assertion that his spinal surgery was a result of the 2009 accident, Dr. Clifford did not agree. Dr. Clifford testified that Mr. Garmider sustained soft-tissue injury in the 2009 accident to his shoulder and neck that was at most a WAD II. He stated that a normal healing time for a WAD II would be 10 to 12 weeks and there was no expectation or evidence that recovery for Mr. Garmider would have taken longer than the norm.

Mr. Garmider referred to his bone scan dated March 12, 1998, and asked Dr. Clifford why he did not refer to it in his report. Dr. Clifford explained that the bone scan was normal and showed no acute tissue injury, and therefore was not relevant to his assessment.

Psychological Impairments

I find that there is also significant evidence of pre-existing mental health issues not even a year before the 2009 accident. The evidence shows that despite years of treatment Mr. Garmider was not improving. His condition likely worsened further in July 2008 when his spouse left him. Mr. Garmider was hesitant to testify on this issue but he did admit that his ex-wife leaving him combined with the 2009 accident, “finished me off.” A memo from WSIB dated July 28, 2008, indicates that Mr. Garmider was angry and tearful on the phone, blaming the WSIB for the break-up of his marriage, and making accusations of corruption. Because of his emotional state at that time, WSIB approved weekly psychological treatment instead of monthly sessions.

Dr. L. Kiraly conducted a psychiatric assessment on behalf of the insurer and in his report dated May 21, 2014, he found that Mr. Garmider suffered from psychological and functional impairments that were a direct result of the 2009 accident. Dr. Kiraly concluded that Mr. Garmider was not entitled to a non-earner benefit because from a psychiatric point of view he did not suffer a complete inability to carry on a normal life. However, he did find entitlement to treatment recommended on July 12, 2010, by Dr. Wilderman of the Chronic Pain Clinic.

Dr. Kiraly summarized his understanding of the impairments/injuries sustained in the 2009 accident at the time he wrote his report:

The injuries reported and listed in the medical records include pain in the neck, left shoulder and lower back. There was nausea, vomiting and dizziness and headaches. He had cold sensitivity down his legs noted. He had depression, anxiety and cognitive difficulties and upsets. He had a worsening of anxiety symptoms while driving.

At the time of writing his report, Dr. Kiraly had not been provided with relevant accident documentation. In reviewing the ambulance call and emergency report from the 2009 accident, Dr. Kiraly testified that it was clearly not as serious an accident as he was led to believe. He noted that the information he relied upon in the report was based on Mr. Garmider’s subjective reporting and the medical information he was provided at the time.

Dr. Kiraly testified that he believed the ambulance call and the emergency report were more objective documents and noted that Mr. Garmider was often scattered, had difficulty focusing, was very reactive and not a reliable historian. Dr. Kiraly confirmed that in the ambulance call and emergency report from the 2009 accident there was no mention of headache, dizziness, vomiting, nausea or back pain.

Dr. Kiraly testified that even though Mr. Garmider reported a significant change for the better in the early months of 2009, his depression, post traumatic stress disorder ("PTSD"), pain, sleep apnea, anxiety, and nervous depression were in fact chronic and had a guarded prognosis before the 2009 accident. Dr. Kiraly concluded this after considering the WSIB records, reports of Drs. Light, Livshin and others, the fact that Mr. Garmider was receiving benefits and the fact that he was not driving for extended periods.

Dr. Kiraly testified that it was not likely that Mr. Garmider had significant improvement in early 2009. He stated that there might have been some small improvement that Mr. Garmider now perceives to be more significant than it was at the time. From a psychiatric point of view, however, Dr. Kiraly testified that though there was some immediate upset because of the 2009 accident, in the long term there was little if any change from Mr. Garmider’s pre-accident condition.

Conclusions on Causation

I find that Mr. Garmider is a poor historian and has difficulty distinguishing between the injuries sustained before the 2009 accident and those sustained in the 2009 accident. As a result, where there is a discrepancy, I give more weight to the medical opinion, reports and information contained in the file over the testimony of Mr. Garmider. Drs. Kiraly and Clifford testified that Mr. Garmider was a poor historian, evasive, forgetful or selective. Many of the medical assessors agree. In his report of August 12, 2010, Dr. Makos noted that despite having interviewed Mr. Garmider on three separate occasions he found that “he was a poor historian, and vague in terms of his recollection of his symptoms, treatment or his pre- versus post-June 8, 2009 condition.” Dr. Makos found Mr. Garmider to be evasive in providing answers to direct questions and that he had “a tendency to deviate into tangential diatribes regarding his opinion that the WSIB and the auto insurance companies are conspiring against him.”

I find that the evidence does not support that the 2009 motor vehicle accident caused or contributed to Mr. Garmider’s ongoing back condition or that it significantly impacted his ongoing psychiatric symptoms. I find on the overwhelming supporting evidence that Mr. Garmider’s lower back condition was pre-existing and unrelated to the 2009 accident. In addition, there is also overwhelming evidence to support that Mr. Garmider was suffering from ongoing psychological issues before the 2009 accident, and Mr. Garmider gave no evidence on which I could find that the accident caused or exacerbated this already existing condition. I also received no medical reports where any medical professional, informed of Mr. Garmider’s pre-accident condition, had reviewed the emergency and ambulance report from the 2009 accident and concluded that the 2009 accident materially contributed to his current condition.

Non-Earner Benefit

Given my finding on causation, I find that Mr. Garmider is not entitled to a non-earner benefit.

Section 12 of the Schedule sets out the test for the non-earner benefit and states that the insurer is to pay a non-earner benefit to any person who suffers a complete inability to carry on a normal life as a result of and within 104-weeks of the accident. Section 2(4) of the Schedule defines a complete inability to carry on a normal life as follows:

(4) for the purpose of this regulation, a person suffers a complete inability to carry out a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

The test for the non-earner benefit has been the subject of extensive discussion in arbitral case law. Arbitrators have been unanimous in stating that the test is onerous, requiring an examination of the activities the insured normally engaged in before and after the accident.

Mr. Garmider provided no evidence to show what his normal activities were before the accident and how he was now prevented from doing those activities after the accident, other than his testimony that the accident prevented him from his daily walks. When asked how the 2009 accident contributed to a complete inability to carry on a normal life, Mr. Garmider stated that his was not a complete inability but that he had lost some ability.

Shortly after the 2009 accident, on a sign-back letter from the insurer dated June 24, 2009, Mr. Garmider checked off that he would not be applying for a non-earner benefit. The initial disability certificate dated June 15, 2009, and a subsequent disability certificate dated August 27, 2009, both indicated that entitlement to a non-earner benefit was not applicable. Payment of a non-earner benefit would have commenced six months after the accident or December 8, 2009.

A disability certificate completed by Dr. A. Russi, chiropractic, dated February 3, 2010, indicating that Mr. Garmider had a complete inability to carry on a normal life was submitted by or on behalf of Mr. Garmider. On that disability certificate, at part five titled "Injury Sequelae" the listed injuries noted to be a direct result of the accident included chronic lumbar cervical spine, left shoulder, knee, headache, concussion, and sleep disorder. Part six of that disability certificate states that the date these symptoms first appeared was June 8, 2009, and Dr. Russi acknowledged in the form that he had not seen Mr. Garmider before the motor vehicle accident.

The answers provided by Dr. Russi on the disability certificate of February 3, 2010, bring into doubt the correctness of his assessment since he provided no information regarding Mr. Garmider’s extensive pre-accident history. I heard evidence that showed a very long history of chronic pain, depression and PTSD, for years before the accident. Despite Mr. Garmider’s assertions that in the months just before the accident his condition improved, this is not supported by the medical file.

In addition, video surveillance provided by the insurer, taken on several occasions in May 2010, November 2012 and May 2013, show Mr. Garmider conducting day-to-day activities that include: driving a car, running errands, pumping gas, going to medical appointments, grocery shopping, carrying his groceries and shopping for up to 2.5 hours. Follow-up surveillance shows Mr. Garmider doing the exact same activities including chauffeuring family members.

When testifying, Mr. Garmider gave few specifics concerning the difference between his pre- and post-2009 accident condition. As noted above, he testified that he walked a lot before the accident but the day after, when he experienced some pain in his legs, he had to stop walking and started to gain weight. In cross-examination, although he disagreed that the accident had no real effect on his day-to-day life, he failed to give specific details. He agreed that he had problems before the 2009 accident but testified that his problems got worse after the accident and now he had new problems, again without any specifics.

I find that the Mr. Garmider has not proven that he has a complete inability to carry on a normal life as a result of the 2009 motor vehicle accident. The video surveillance shows Mr. Garmider undertaking his daily activities. In addition, Dr. Kiraly testified that the fact that Mr. Garmider continued driving after the accident along with his courtship and marriage following the 2009 accident were both actual signs of improvement over his pre-2009 condition.

Housekeeping and Home Maintenance

Section 22 (1) of the Schedule states the following:

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

The insurer sent a letter to Mr. Garmider on July 10, 2009, asking him to submit any expenses relating to housekeeping and included blank forms. No expenses were submitted. After receiving the disability certificate that indicated Mr. Garmider was entitled to a non-earner benefit, the insurer sent another letter noting that no submissions had been received for housekeeping and requested clarification from Mr. Garmider whether he would be applying for the benefit. The insurer never received a claim from Mr. Garmider or receipts for a housekeeping benefit.

Mr. Garmider’s evidence with regard to housekeeping was rather sparse. Mr. Garmider testified that a woman named Olga provided housekeeping services. He supplied no information as to what housekeeping tasks Olga completed and specifically what she did for him that he was able to do before the accident. He admitted that he never submitted receipt to the insurer for Olga’s services. Olga did not testify.

On the evidence before me, I find that prior to the accident Mr. Garmider’s ability to do housekeeping was limited. For example, less than one year before the 2009 accident, Dr. Light noted in his November 2008 report that Mr. Garmider felt useless and could not do his household chores.

I find that Mr. Garmider has provided no reliable evidence to show that he had a substantial inability to perform the housekeeping that he was normally performing before the accident or that such an expense was even incurred. Therefore, I find that he is not entitled to a housekeeping benefit as claimed.

Is the treatment plan dated January 8, 2010 reasonable and necessary?

Section 14 of the Schedule states that an insurer “shall pay an insured person who sustains an impairment as a result of an accident a medical benefit,” and this medical benefit “shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident …”

The treatment plan of January 8, 2010, proposes 12 sessions of exercise with a chiropractor/kinesiologist and 12 sessions of massage therapy. It was completed by Dr. Russi.

An insurer examination was completed by Dr. B. Makos with an assessment on July 8, 2010, and a report dated August 12, 2010. Dr. Makos noted that Dr. Russi did not provide objective information to distinguish the diagnoses listed on his treatment plan from the pre-existing conditions that were present at the time of the 2009 accident. Dr. Makos wrote that in his interview, Mr. Garmider denied having performed any exercises during the course of receiving 200 treatments at the facility. Dr. Makos concluded that the treatment received was passive and there was insufficient objective information to render the plan reasonable or necessary.

Mr. Garmider did not call Dr. Russi to testify as a witness. I do not have a medical opinion to counter that of Dr. Makos. In my view, compelling medical evidence is necessary to rebut the report of Dr. Makos. In addition, given my finding on causation, I find that the goods and services recommended are not reasonable or necessary.

Is the treatment plan dated March 2, 2010 reasonable and necessary?

The treatment plan proposed two washlet/bidet seats, a professional body massager, heating pad, installation and delivery for a total cost of $7,877.47. The plan was completed by Dr. Zibin, chiropractor, who did not testify at the hearing. Dr. Makos, who also did not testify, assessed the reasonableness of this treatment plan on behalf of the insurer.

In his report dated April 23, 2010, Dr. Makos concluded that the goods and services in the treatment plan were not necessary. He noted that although Dr. Zibin indicated the reason the seats were required was because of Mr. Garmider’s shoulder pain, Mr. Garmider in the interview stated that he required the seats as a result of low back pain and bilateral radiating leg pain when attempting to perform wiping activities on the toilet. Mr. Garmider made no reference to difficulties with respect to the use of his arms in performing that activity. Dr. Makos noted that Dr. Zibin also referred to “moderate limitations through all ranges of lumbar motion” but countered that Mr. Garmider demonstrated sufficient range of motion to perform this activity based on information provided in Dr. Gladstone’s neurological report of September 13, 2009.

Besides his testimony and the treatment plan, Mr. Garmider provided no additional information to support that the proposed treatment plan is reasonable and necessary. I find that Mr. Garmider has not presented sufficient evidence to show that the proposed goods and services are reasonable and necessary expenses relating to injuries sustained as a result of the 2009 accident. I accept the conclusion of Dr. Makos and find that the treatment plan is not reasonable or necessary.

Is the treatment plan dated July 12, 2010 reasonable and necessary?

Dr. Wilderman completed this treatment plan, the goods and services totalling an estimated cost of $9,611.10.⁵ Dr. Clifford assessed this treatment plan in his report of May 20, 2014. He concluded that the treatment plan was not reasonable and necessary for injuries arising from the 2009 accident. He concluded that there was no indication that Mr. Garmider sustained any significant injury to the mid or lower back in the 2009 accident and that the injuries, by the time of his assessment, five years later, had long since healed.

Mr. Garmider did not present any medical evidence to counter the opinion of Dr. Clifford. He did not call Dr. Wilderman to give evidence at the hearing. Given my findings on causation, Mr. Garmider is not entitled to the goods and services in this treatment plan.

Conclusion:

I find, on all the evidence before me, that Mr. Garmider was suffering a severe and prolonged disability in the years prior to the relevant motor vehicle accident. I also find that his condition had not improved prior to the accident in any significant way. Mr. Garmider has failed to prove that he sustained injuries in the 2009 accident that would entitle him to any of the claimed benefits. I find that he sustained soft-tissue injuries in the 2009 accident that went on to heal without incident.

Expenses:

The parties made no submissions on expenses. They are encouraged to resolve the issue. If they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

February 2, 2015

Alec Fadel Date

Arbitrator