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

Neutral Citation: 2016 ONFSCDRS 226

FSCO A13-005319

BETWEEN:

SAMIR FERAWANA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Isabel Stramwasser

Heard: May 4, 5, 6, 7 and 8, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received by February 10, 2016

Appearances: Mohamed Elbassiouni for Mr. Ferawana Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Samir Ferawana, was injured in a motor vehicle accident on May 28, 2011. He applied for, and received, statutory accident benefits from State Farm Mutual Automobile Insurance Company, payable under the Schedule.¹ Disputes arose concerning his entitlement to benefits. The parties were unable to resolve their disputes through mediation and, in April 2013, Mr. Ferawana applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

The issues in this arbitration are as follows:

Is Mr. Ferawana entitled to the following medical benefits?

a. $70.00 for a therapy ball recommended by Mahmoud Sous (physiotherapist) of Physio Active Rehab in a treatment plan dated August 18, 2011

b. $1,877.00 for prescribed activities, exercises and modalities recommended by Susan P. Jones (physiotherapist) of Heartland Wellness Clinic in a treatment plan dated November 7, 2013

c. $1,541.60 for prescribed activities, exercises and modalities recommended by Susan P. Jones (physiotherapist) of Heartland Wellness Clinic in a treatment plan dated October 7, 2014

d. $2,294.20 for psychological treatment recommended by Dr. Jon Mills (psychologist) in a treatment plan dated May 2, 2014

Is Mr. Ferawana entitled to the cost of the following examinations?

a. $1,979.36 for a psychological assessment recommended by Dr. Jon Mills (psychologist), Dr. Scott Gosse (psychologist) and Patrick Beedling (M.Ed. in counselling psychology) in a treatment plan dated April 8, 2014

b. $1,950.80 for a chronic pain assessment recommended by Dr. Igor Wilderman (physician) and Dr. Rhuel Maano (chiropractor) in a treatment plan dated April 14, 2014

Is State Farm prohibited from taking the position that Mr. Ferawana has an impairment to which the Minor Injury Guideline³ (“MIG”) applies?
Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Ferawana?
Is Mr. Ferawana entitled to interest for the overdue payment of benefits?
Is State Farm liable to pay Mr. Ferawana’s expenses in respect of the arbitration or is Mr. Ferawana liable to pay State Farm’s expenses in respect of the arbitration?

Result:

Medical benefits:

a. Mr. Ferawana is entitled to a medical benefit in the amount of $70.00 for a therapy ball recommended by Mahmoud Sous (physiotherapist) of Physio Active Rehab in a treatment plan dated August 18, 2011.

b. Mr. Ferawana is not entitled to a medical benefit in the amount of $1,877.00 for prescribed activities, exercises and modalities recommended by Susan P. Jones (physiotherapist) of Heartland Wellness Clinic in a treatment plan dated November 7, 2013.

c. Mr. Ferawana is not entitled to a medical benefit in the amount of $1,541.60 for prescribed activities, exercises and modalities recommended by Susan P. Jones (physiotherapist) of Heartland Wellness Clinic in a treatment plan dated October 7, 2014.

d. Mr. Ferawana is not entitled to a medical benefit in the amount of $2,294.20 for psychological treatment recommended by Dr. Jon Mills (psychologist) in a treatment plan dated May 2, 2014.

Cost of examinations:

a. Mr. Ferawana is not entitled to the cost of an examination in the amount of $1,979.36 for a psychological assessment recommended by Dr. Jon Mills (psychologist), Dr. Scott Gosse (psychologist) and Patrick Beedling (M.Ed. in counselling psychology) in a treatment plan dated April 8, 2014.

b. Mr. Ferawana is not entitled to the cost of an examination in the amount of $1,950.80 for a chronic pain assessment recommended by Dr. Igor Wilderman (physician) and Dr. Rhuel Maano (chiropractor) in a treatment plan dated April 14, 2014.

State Farm is prohibited from taking the position that Mr. Ferawana has an impairment to which the MIG applies.
State Farm is not liable to pay a special award to Mr. Ferawana.
Mr. Ferawana is entitled to interest for the overdue payment of the therapy ball.
Mr. Ferawana is liable to pay 75% of State Farm’s expenses in respect of the arbitration.

EVIDENCE AND ANALYSIS:

In order for Mr. Ferawana to establish that he is entitled to a medical benefit or a cost of examination, he must prove that State Farm failed to meet its procedural obligations.

Failing that, he must establish causation, prove that his impairment is not “minor” as defined by the MIG and demonstrate that the benefit he requests is reasonable and necessary.

State Farm failed to meet its procedural obligations

For the reasons below, I find that State Farm failed to meet its procedural obligations. As a result, it is required to pay for certain benefits regardless of whether Mr. Ferawana established causation, whether his impairment was outside the MIG or whether the benefits were reasonable and necessary.

State Farm is liable under subsection 38(11) to pay $70.00 for a therapy ball recommended by Mahmoud Sous (physiotherapist) of Physio Active Rehab in a treatment plan dated August 18, 2011

Specifically, I find that State Farm is liable to pay for a therapy ball that Mr. Ferawana requested a few months after the accident. Mr. Ferawana’s physiotherapist sent State Farm the request for that benefit, but State Farm did not respond as required by section 38 of the Schedule.

Subsection 38(8) imposes four procedural requirements on insurance companies after an insured person makes a request for benefits in a treatment plan:

An insurer must respond within 10 business days;
It must say what it will pay;
It must say what it will not pay; and,
It must give medical and other reasons for not paying:

38(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

Subsection 38(9) imposes a fifth requirement:

If the insurer thinks that the MIG applies, it must say so.

38(9) If the insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person.

I am able to deduce from the evidence that State Farm was outside the ten-day limit for providing a proper response to this treatment plan. It is undisputed that State Farm responded to the plan on September 1, 2011 when it faxed back the plan with a box ticked saying it would not pay. However, State Farm did not provide reasons for denying the plan until nearly two months later, on October 24, 2011. (I make no finding regarding the sufficiency of those reasons). Based on this evidence, State Farm received the plan on or before September 1, 2011 and provided its reasons on or after October 24, 2011, well outside the ten-day deadline.

There are two consequences for a breach of procedure under subsection 38(11). First, the insurer is prohibited from taking the position that the MIG applies. Second, the insurer shall pay those benefits that relate to a certain timeframe:

38(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

State Farm’s breach of the ten-day deadline for responding to the therapy ball plan triggers the mandatory payment provisions under subsection 38(11)(2). In order to be payable, the therapy ball must “relate” to the period starting 11 business days after State Farm received the plan and ending at least two months later when (or if) State Farm made a proper denial. In my view, and absent evidence to the contrary, a therapy ball could have been used for treatment at any time during that period. As a result, I conclude that the therapy ball relates to the requisite timeframe.

State Farm argues that a minor procedural non-compliance with the Schedule does not automatically entitle an applicant to the disputed benefit. According to State Farm, an applicant still has to show that the request was reasonable and necessary. I reject this argument. If correct, it would render the mandatory requirements of subsection (11) meaningless. The payment regime is mandatory and I have no jurisdiction to carve out exceptions. Consequently, there is no need for me to proceed with an analysis of whether Mr. Ferawana’s claim for the August 2011 therapy ball was reasonable and necessary.

On this point, I adopt the reasoning of Arbitrator Alan Smith in Lin and State Farm Mutual Insurance Company.⁴ Arbitrator Smith pointed out that he did not have the jurisdiction to review whether a claim was reasonable and necessary once the mandatory provisions of the Schedule were engaged. He explained, and I agree, that an arbitrator is not vested with inherent or implied powers; rather, an arbitrator’s jurisdiction is restricted solely to that prescribed by legislation. He specified that an arbitrator is bound by the provisions of the Insurance Act and the Schedule, neither of which provides the ability to relieve an insurer of liability under the mandatory payment provisions on the basis that a treatment plan is not reasonable and necessary.

Given that State Farm’s denial was out of time and that the requested benefit relates to the requisite timeframe, I conclude that it is liable to pay $70.00 for the benefit.

State Farm is not liable under subsection 38(11) for the other plans

Mr. Ferawana did not make subsection 38(11) arguments regarding three of the five remaining treatment plans in dispute. In closing submissions, he conceded that State Farm’s denial of the November 2013 Heartland plan was procedurally correct. He also conceded that State Farm provided proper notice in respect of the May 2014 plan for psychological treatment. Lastly, Mr. Ferawana conceded in closing argument that State Farm substantially followed procedure in denying the April 2014 chronic pain assessment and that it was incurred in April 2015, long after the Insurer denied it. Mr. Ferawana changed his position in his written submissions, saying that the chronic pain assessment was payable because State Farm did not respond within ten days, but this does not change the fact that the assessment is not payable because it was provided long after the insurer denied it.

I find that State Farm is not liable to pay for the October 2014 Heartland plan under subsection 38(11) because Mr. Ferawana did not lead evidence regarding the period to which those benefits related. Mr. Ferawana entered into evidence clinical notes and records from Heartland Wellness Clinic dating up until February 2014, long before the plan was created. Benefits are only payable under the subsection if they relate to the period starting at least 11 days after an insurer received the plan.

Similarly, Dr. Mills’ April 2014 psychological assessment is not payable because the requested benefit relates to a period too early to trigger the mandatory payment provisions. State Farm received the plan on April 11, 2014. Eleven business days later is April 29, 2014 (noting that April 18, 2014 was a statutory holiday, which is not counted as a business day under the Code). The service in question was provided on April 21, 2014, before the eleventh business day. It does not relate to the period starting eleven business days after receipt.

I reject Mr. Ferawana’s arguments in respect of these two treatment plans because tshey do not address the test under subsection 38(11)(2) of the Schedule, that goods and services must relate to a certain timeframe. Mr. Ferawana argued that the goods and services did not need to be incurred before being payable, but this argument is not relevant to the test. He also argued that an insured person is not precluded from incurring treatment within ten days after submission. While I agree that an insured person may incur treatment at any time he or she wishes, an insurer is only liable to reimburse that treatment if it relates to the period starting eleven days after submission. Lastly, Mr. Ferawana argued that State Farm failed to respond to the psychological assessment plan within ten days. However, given that the assessment was incurred within those ten days, the question of whether the insurer breached its obligations is moot. Even if the insurer were outside the ten-day limit, the plan is not payable because it was incurred too soon.

State Farm cannot take a MIG position on this claim

Having found that State Farm failed to meet its procedural obligations with respect to the therapy ball treatment plan, it follows from subsection 38(11)(1) that State Farm is prohibited from taking the position that Mr. Ferawana has an impairment to which the MIG applies. I must now consider the extent of that prohibition.

On a plain reading of the statute, an insurer that breaches a procedural obligation with respect to one treatment plan is barred from making a MIG determination on all treatment plans. The wording in clause 1 of subsection (11) refers broadly to “impairment” and not to any particular treatment plan. There is no definition of “impairment” in the statute to suggest that the word be restricted to a particular treatment plan or plans. The references to a particular treatment plan in subsection (11) are to the notice requirement and to the payment provision — not to the MIG prohibition.

This interpretation is internally consistent with the rest of the subsection. Had the legislature intended for the remedy in part (1) to apply to just one treatment plan, it would have so specified. In fact, the legislature did so specify at part (2), which refers to just one treatment plan, “[t]he treatment and assessment plan.”

It is consistent with the purpose of the MIG for the legislature to require that, if a company makes a MIG determination, it do so as soon as possible. It is also consistent with the purpose of the MIG to prohibit an insurer from raising the MIG at all on a claim if it fails to do so at the outset. These results are in harmony with the stated objectives of the MIG, namely, to speed access to rehabilitation for persons who sustain minor injuries and provide certainty around cost and payment for insurers and regulated health professionals:

The objectives of this Guideline are to:

a) Speed access to rehabilitation for persons who sustain minor injuries in auto accidents;

b) Improve utilization of health care resources;

c) Provide certainty around cost and payment for insurers and regulated health professionals; and

d) Be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries as defined in the SABS and set out in Part 2 of this Guideline.⁵

It is also consistent with the nature of the MIG for a prohibition to apply to the whole claim and not just to one plan. When an insurer makes a MIG determination, it does not apply to just one treatment plan, it applies to the whole claim. Specifically, when an insurer says that an individual’s impairment is subject to the MIG, that person’s coverage for the entire claim is subject to the $3,500.00 limit referred to in section 18(1) of the Schedule.

To interpret the statute as State Farm suggests would be to read in words that narrow the MIG prohibition so as to refer to just one treatment plan. However, there is no justification for reading in words in this case. A plain reading of the statute is compatible with the context of the subsection, the purpose and nature of the MIG and also with the purpose of the statute as consumer protection legislation.

State Farm argues that the interpretation advanced by Mr. Ferawana is absurd, but I disagree. His interpretation makes logical sense on a plain reading of the statute and is coherent with the spirit and purpose of the MIG and the statute. Mr. Ferawana’s interpretation is reasonable and so it cannot be described as absurd.

I also reject State Farm’s argument that, while the section says that an insurer may be prohibited from taking the position that the MIG applies, there is no prohibition on an arbitrator making a finding that the MIG applies. State Farm did not point me to any section in the legislation in support of its argument, nor do I see one. As above, I do not accept that arbitrators have the discretion to waive the mandatory language of subsection 38(11)(1).

In my view, only a clear and unambiguous statement in the statute that the MIG prohibition applies to only one treatment plan can support an interpretation favourable to State Farm. It is settled law that, where there is a doubt in legislation establishing and governing coverage and there are two possible interpretations of any aspect of coverage, the one more favourable to the insured should govern: see July et al. v. Neal (1986).⁶ The explanation for this principle is that contracts are interpreted contra proferentem (or “against the drafting party”) because the insurance industry has input into the content of the legislation, while individual insured persons have none. As such, if there is an ambiguity in the MIG prohibition clause regarding the extent to which it applies, such an ambiguity must be resolved in favour of the insured.

I accept Mr. Ferawana’s argument that, as a result of breaching section 38, State Farm is prohibited from taking a MIG position on this claim.

Mr. Ferawana failed to establish causation

As I explain in detail below, State Farm is not liable to pay for the five remaining treatment plans in dispute because Mr. Ferawana has not established causation. I am unable to link the car accident in 2011 with the benefits he seeks more than two and a half years later.

Gaps in the medical records

There are significant gaps in the medical records, yet Mr. Ferawana says that his symptoms more than two years after the accident were caused by the accident.

Mr. Ferawana had pre-existing low back pain. Records from his family doctor, Dr. Mary Botros, show that he complained of low back pain a few weeks before the accident. In December 2011, he told Dr. Levine, the insurer’s examiner, that his low back pain started one to two months before the accident. In 2014, he told Dr. Lee, rheumatologist, that his low back pain started in 2010 (at least five months before the accident). In 2014, he also told Dr. Mills, psychologist, Dr. Wilderman, chronic pain specialist, and Dr. Peterkin, insurer’s examiner, that he had a pre-existing condition.

Although the physiotherapist, Mr. Sous, noted no pre-existing back pain in his reports of June and August 2011, his November 2011 document did note prior back pain. And although Mr. Ferawana denied prior back pain in his recorded statement to State Farm in September 2011, I prefer his contemporaneous accounts to the family doctor. They are more reliable than accounts months later and, in any event, are consistent with the great majority of evidence in this regard.

The evidence does not support a finding that Mr. Ferawana sustained an aggravation of his pre-existing back pain as a result of the accident. He did not seek much medical attention in the months and years after the accident injury. He saw his family doctor twice - the first time was five days after the accident and the second time was three months later in August 2011. He was diagnosed with a low back soft tissue injury as a result of the accident and, by the time he saw his family doctor again in November and December 2011 (for other matters), he had no low back complaints.

Although Mr. Ferawana attended some physical therapy in the months after the accident, he was discharged for non-compliance. His physiotherapist, Mr. Sous, discharged him for non-compliance on December 2, 2011, noting that no further treatment was required for the accident injury. In his recorded statement to State Farm in September 2011, Mr. Ferawana explained that he had missed approximately two months of physiotherapy shortly after the accident because he went overseas between June 6 and August 8, 2011. He said that he did some physiotherapy overseas, but did not specify when or with whom and led no corroborating evidence in this regard.

Mr. Ferawana insisted at the hearing that he was compliant with treatment recommendations and pointed to treatment invoices in support. However, invoices are not evidence of attendance and, even if they were, attendance is not evidence of compliance. Although Mr. Ferawana testified that he was compliant, his protests were vague and general. He did not provide details about treatment recommendations or actual treatment. As a result, I am unable to assess whether he fulfilled the recommendations.

Mr. Ferawana did not take additional pain medication for his back in the six months after the accident. Prescription summaries show that he did not fill prescriptions for pain medication during that time. He told Dr. Alikhan in October 2011 that he no longer took prescription pain medication, but took regular strength acetaminophen one to three times per week. He told Dr. Levine in December 2011 that he had used occasional Advil for back pain before the accident but had used not used medication after.

Mr. Ferawana saw no medical providers about his back in the period between seven and seventeen months post-accident (between December 2011 and October 2012), although he went to see his family doctor numerous times during that period for other complaints. While he filled prescription summaries for pain medication during this period, the evidence does not show that the prescriptions were for back pain. His back complaints flared in late 2012-early 2013, as noted in the family doctor records, but then there are no complaints until August 2013, more than two years post-accident. He wants State Farm to pay for five treatment plans dating after that flare.

While I do not doubt that the Applicant had low back pain at the time of his requests for treatment in 2013 and 2014, he has not persuaded me that this pain was caused by the accident more than two and half years prior. He had pre-existing pain in that area. He took less pain medication in the seven months after the accident than before. He did not attend much treatment or seek much medical advice in the months and even early years after the accident. He discussed it with his family doctor twice in the first 18 months, although he saw that doctor for numerous other matters. He was discharged from treatment within six months for failure to comply. There are long periods of time during which there is no record of back problems.

With regard to his psychological claims, I accept that Mr. Ferawana had intermittent nightmares about the accident, but I am not persuaded that these interfered with his daily activities or that they justify the treatment recommended in 2013 and 2014. The treatment plans were not requested solely on the basis of occasional nightmares, but on debilitating low mood and pain, which are refuted elsewhere in the evidence.

Mr. Ferawana was not a reliable witness

Credibility was at issue in these proceedings. As was evident in the records and in Mr. Ferawana’s testimony, he was a poor historian. For example, in his statement to State Farm in 2011, he did not know his current address, where he had been living for two years. After noting the Applicant’s report of pain on a scale of 1 to 10, Dr. Ayoob Mossanen, neurologist, wrote in 2015 that he “believes this client not to be reliable regarding VAS of pain intensity.” Mr. Ferawana’s testimony at the arbitration was obscured by lack of memory and lack of accuracy, such as when he failed to respond clearly to questions about how many children he had or their ages. He was evasive and argumentative on cross-examination, despite my repeated warnings that he refrain from answering a question with a question and that he not argue with counsel.

Also, Mr. Ferawana gave numerous contradictory accounts about his symptoms and medical history. He told State Farm in September 2011 about a prior car accident, overseas, but by the time he met Dr. Platnick in 2014 and Dr. Mossanen in 2015, he denied any prior accident. He also told State Farm in 2011 and the insurer’s examiner Dr. Peterkin in 2014 that the reason he did not drive in Canada before or after the accident was that he did not speak English, adding to Dr. Peterkin that he had no difficulty being a passenger in a car. Yet, he told Dr. Mills and Dr. Mossanen that he was tense and anxious being a driver or passenger in a car.

Mr. Ferawana also gave conflicting accounts about his abilities before and after the accident. He told the insurer in September 2011 that his wife was helping him with bathing and putting on some clothes. Yet, in October 2011, he told the insurance examiner, Dr. Alikhan, that there was no change to his self-care, homemaking and dependent care abilities and that he enjoyed going for walks since the accident. A few months later, he told the other insurance examiner, Dr. Levine, that he remained fully independent for self-care, attended English classes three hours per day and that his activities of daily living were the same as before the accident. Yet, he complained to other doctors (Dr. Mills, Dr. Mossanen, Dr. Wilderman, Dr. Maano and Dr. Platnick) that he had been unable to perform activities of daily living since the accident, such as going for walks, shovelling snow, yard work and socializing.

In their testimony, both the Applicant and his wife said that he was limited in his activities of daily living after the accident, adding that Mr. Ferawana went from full-time to part-time studies after the accident. However, they did not provide detail about the change in hours and this evidence was not corroborated with school records or with medical evidence that any change in hours was due to the accident.

In addition, Mr. Ferawana gave irreconcilable accounts about his psychological and physical symptoms. The physiotherapist, Dr. Sous, suggested that he had post-traumatic stress disorder as a result of the accident and recommended a referral to a psychologist or psychiatrist. However, Mr. Ferawana told insurer’s examiners later in 2011 that his feelings of sadness had “nothing to do with the accident.” In later accounts to Dr. Mills and Dr. Wilderman, the Applicant attributed his low feelings to the accident, adding that his chronic pain and psychological problems had been ongoing since the accident and that rehabilitation professionals were unable to ameliorate his symptoms, despite his attempt to follow instructions and mitigate his symptoms. Yet, he advised other professionals that his symptoms had abated and that rehabilitation had helped improve them. Mr. Ferawana also told Dr. Wilderman that he had difficulty concentrating - but said the opposite to Dr. Peterkin in 2014.

The life that Mr. Ferawana described to Dr. Mills and Dr. Wilderman was dramatically different from the one he described to Dr. Peterkin - the former was a picture of a depressed man unable to perform daily activities, while the latter was quite the opposite. Notably, Dr. Mills reported that Mr. Ferawana did daily vacuuming, laundry and cooking at home before the accident, yet Mr. Ferawana categorically denied this in his testimony.

Mr. Ferawana’s poor recall and his conflicting statements made him an unreliable witness. I give little weight to his evidence.

The medical opinions do not support causation

The insurer’s examiners, Dr. Alikhan and Dr. Levine, diagnosed soft tissue injuries in 2011, with little to no objective findings. Although Mr. Ferawana rated his low back pain at a five out of ten, Dr. Alikhan’s extensive full body physical examination was normal and there was no evidence of atrophy or palpable masses except some sighing at the end range of lumbar spine range of motion, but no reported discomfort. Although Mr. Ferawana reported low back pain to Dr. Levine and put his hands to his low back several times, medical findings were normal, except for a slight limitation in extension of the neck, which, inexplicably, he reported as causing pain to the low back. Mr. Ferawana also reported that movement in his shoulders caused pain to the low back and that a light touch to the lumbosacral region caused pain (there was no spasm).

While pain complaints are often unsupported by objective findings, the pain complaints in this case make little sense. They are inconsistent with clinical evidence (no muscle atrophy, reports of low back pain with neck and shoulder movements and pain with a light touch and no spasm). The pain complaints to the insurer’s examiners are also inconsistent with the fact that Mr. Ferawana was taking little to no pain medication, was discharged from therapy for non-compliance with no need for further treatment and he did not report back complaints to his family doctor although he saw her for other matters. In any event, the pain complaints in 2011 do not bridge the gap in the medical evidence between 2011 and 2013.

In September 2014, Mr. Ferawana saw a third insurer’s examiner, Dr. Platnick, MD, who noted a mostly normal exam and concluded that the uncomplicated soft tissue injury from the 2011 accident had resolved. Dr. Platnick observed that Mr. Ferawana did not shift when seated and that he walked with a normal and fluid gait. On examination, Dr. Platnick noted tenderness with palpation along the paralumbar region, but no hypertonicity, muscle spasm or guarding were identified. The Applicant reported low back pain with forward flexion at the waist with his fingertips to the lower shin level, but the rest of the examination was normal, with no evidence of tenderness, deformity, nerve root tension or muscle wasting.

Mr. Ferawana criticized Dr. Platnick’s report, but his criticisms do not detract from the doctor’s clinical observations. Mr. Ferawana said that Dr. Platnick did not review the family doctor’s clinical notes and records, though I note he did have medical imaging. He also said that Dr. Platnick referred to a non-existent treatment facility (Proactive Rehabilitation) when describing the patient’s treatment (perhaps instead of Physio Active Rehab). Lastly, he argued that the doctor did not do all the physical examination he should have, without explaining what other examinations would be helpful and without a medical opinion to support this argument.

In 2014, psychiatrist Dr. Allan Peterkin found that Mr. Ferawana did not meet the criteria for a psychiatric diagnosis. Mr. Ferawana described intermittent nightmares, likely caused by the accident, but they did not prevent him from being a passenger on public transportation or in a car or from going out and socializing on a regular basis. He could not specify the frequency of nightmares, but they were reduced from at the beginning. In any event, he was able to sleep with tablets. His weight was stable. He was getting along normally with family. He walked to the grocery store. He could take a bus and be a passenger in a car without difficulty. He was attending classes three nights per week and stated that he could concentrate on school work. He went to mosque, to the mall, travelled to Ottawa (with his family), and he saw friends and neighbours occasionally. He described his mood as down sometimes when in pain, but his affect revealed no sadness, irritability or distress and he sat comfortably throughout the interview. He voiced no particular concern with memory and concentration. When asked about his psychological status early on, he stated that he had trouble sleeping due to pain and also due to nightmares, but did not provide other symptoms when asked.

I do not put much store on Mr. Ferawana’s criticism of the Peterkin report. Mr. Ferawana argued that Dr. Peterkin did not perform psychological or psychiatric testing, but did not explain how additional testing could have been helpful and provided no medical evidence to support his theory. I note that Dr. Peterkin did perform a mental status examination. Mr. Ferawana also pointed out that Dr. Peterkin did not review the family doctor’s records, but I see that there were few entries for back complaints in those records in any case and that Dr. Peterkin did take a patient history from other reports as well as from the patient. Mr. Ferawana also asked me to draw an adverse inference against Dr. Peterkin’s report because he did not keep clinical notes and records from the visit, but I do not see the connection.

I am not persuaded by the medical opinions that say that Mr. Ferawana’s symptoms three or more years after the accident are caused by the accident. They are based on the Applicant’s self-reports, which are unreliable. Moreover, they do not explain how the accident could cause symptoms after three years despite significant gaps in the medical evidence.

Dr. Lee, neurologist, met Mr. Ferawana nearly three years after the accident and did not even know that there was a car accident in 2011 - the Applicant told him about an accident in 2012. Dr. Lee knew that Mr. Ferawana had a pre-existing condition and that his back pain returned to baseline a year after the accident, but provided no medical explanation for how the accident could be responsible for flares in back pain years later.

Similarly, psychologist Dr. Mills first met Mr. Ferawana three years after the accident and based his opinion on Mr. Ferawana’s account that he had been unable to participate in the activities of normal life since the accident - that “he was a totally different person after the accident.” As noted above, this conflicts with other accounts where Mr. Ferawana said that his daily activities were largely unchanged after the accident.

The chronic pain report of Dr. Wilderman (MD) and Dr. Maano (chiropractor) in 2014 is also unpersuasive. Like the others, these doctors first met Mr. Ferawana three years post-accident and relied on his reports that his chronic pain and psychological problems had been ongoing since 2011. They noted that Mr. Ferawana had a pre-existing condition and ostensibly reviewed the medical history, but did not address the long periods after the accident in which Mr. Ferawana had no medical complaints.

Lastly, I give little weight to the evidence of Dr. Mossanen. His report was served on April 2, 2015, 29 days before the hearing and in breach of the 30-day deadline under Rule 39 for producing evidence, thereby infringing on the insurer’s right to respond. Dr. Mossanen first met Mr. Ferawana nearly four years after the accident. Mr. Ferawana told him that he had a pre-existing condition and that his pain symptoms subsided after the accident. (Mr. Ferawana attributed this to taking pain medication, which is refuted elsewhere in the evidence). Dr. Mossanen did not provide independent medical evidence of an aggravation, nor did he provide his opinion or medical reasons for the gaps of months and years in the medical records in which there were no complaints. Dr. Mossanen testified at the arbitration and was unable to link the accident in 2011 to the pain complaints in 2015 except by the Applicant’s self-reports.

While it is possible that Mr. Ferawana’s soft tissue injury from the car accident aggravated a pre-existing condition and left him with chronic pain, it is not probable - and I am bound to make a decision on a balance of probabilities. I conclude that the evidence does not support a finding that the treatment recommended in the five treatment plans in dispute can be related to the accident.

No order for a special award

Mr. Ferawana argues that State Farm did not act reasonably in adjusting his claim because there was money left under the MIG limit that was not approved. I note that the only treatment plan under the MIG limit was the therapy ball plan, which sought seven devices for a total of $795.00. However, the majority of items in that plan, totalling $650.00, were unidentified and mysteriously described as “other.”

One purpose of the MIG, as noted above, is to “[b]e more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries as defined in the SABS and set out in Part 2 of this Guideline.” However, “more inclusive” is not the same as “completely inclusive.” In other words, the legislation does not require insurers to pay indiscriminately for every treatment plan under the MIG limit.

In these circumstances, I decline to make a special award. I find no misconduct on the part of State Farm. Rather, I find it unreasonable that the Applicant requested $650.00 worth of devices without specifying what they were. I do not see how the Insurer could have adjusted the request for hundreds of dollars’ worth of goods described only as “other.”

The Applicant is entitled to interest

Given that I awarded Mr. Ferawana his request for a therapy ball, I also find him entitled to interest on the overdue payment of that therapy ball. I leave it to the parties to calculate the amount.

EXPENSES

The parties made their submissions on expenses at the hearing. After reviewing the material, I conclude that State Farm is entitled to three-quarters of its reasonable expenses of the arbitration.

The Law

Subsection 282(11) of the Insurance Act provides that an arbitrator may award to the insured person or insurer all or part of the expenses incurred in respect of an arbitration proceeding, according to the seven criteria prescribed by the Expense Regulation,⁷ to the maximum set out in the regulations. (Section F and Rule 75 of the Code reiterate the legislation). Of these seven criteria, only three are relevant to this case:

(a) each party's degree of success in the outcome of the proceeding;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders; and,

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

State Farm was largely successful

With regard to the first criterion, State Farm was largely successful in its defence of this application. Consequently, this criterion supports an award of some expenses to State Farm.

Mr. Ferawana’s conduct prolonged the proceedings

With regard to the fourth criterion, Mr. Ferawana’s conduct prolonged these proceedings. Although both parties interrupted the hearing with motions and objections, I find that, on balance, those interruptions were caused by Mr. Ferawana’s conduct.

First, Mr. Ferawana failed to meet his production obligations. His late production of Dr. Mossanen’s report was outside the requirement under the Code that the parties produce all documents on which they intended to rely at least 30 days before the hearing. Furthermore, and as will be seen below, Mr. Ferawana attempted to enter numerous documents on the first day of the hearing, which he had served outside the 30-day deadline, including a medical opinion served the day before the hearing.

On the stand, Mr. Ferawana and his wife prolonged the proceedings by their evasiveness and argumentativeness. I repeatedly reminded both witnesses, and particularly the Applicant, to answer the questions, compose themselves and stop answering questions with questions. However, they did not materially change their conduct.

In addition, Mr. Ferawana increased the time of the hearing by failing to provide relevant case law in support of his arguments. This required me to ask the parties for their submissions on the cases after the in-person portion of the hearing was over.

Lastly, Mr. Ferawana prolonged the hearing by failing to organize the material, even after I repeatedly asked him to do so. This lack of organization caused confusion on how to frame the issues. It elongated the time that the parties spent entering evidence and making submissions.

State Farm, for its part, also unduly prolonged the proceedings by failing to concede any deficiency in its notices. This required Mr. Ferawana to spend significant time going through each procedural formality under subsection 38.

Although both parties unduly prolonged the proceedings to an extent, the delay was due primarily to Mr. Ferawana’s conduct. Consequently, I award State Farm some of its reasonable expenses under this criterion.

Mr. Ferawana pursued aspects of the proceedings that were unnecessary

With regard to the fifth criterion, Mr. Ferawana pursued aspects of the proceeding that were unnecessary.

On the first day of the hearing, Mr. Ferawana brought four motions to introduce documents that he had failed to produce within the 30-day deadline. After hours of argument, he withdrew three of those motions and I denied the fourth. As a result, we were unable to begin the arbitration proper until mid-afternoon.

On the third day of the hearing, Mr. Ferawana brought a motion to compel the attendance of a particular employee from State Farm, but withdrew it after the parties had made their arguments. Specifically, Mr. Ferawana proposed to withdraw the motion if the Insurer produced the adjuster’s log notes from October 2012 to present. The two matters were unconnected in law. It had been Mr. Ferawana’s responsibility for years before the hearing to request the log notes or seek an order for their production. It was inappropriate of him to use the hearing time to argue the matter and then bargain over it.

Mr. Ferawana’s pursuit of these unnecessary aspects of the litigation demanded considerable time at the hearing. This criterion supports an award of expenses to State Farm.

Conclusion

Mr. Ferawana is liable to pay three-quarters of State Farm’s reasonable expenses of the arbitration.

August 29, 2016

Isabel Stramwasser Arbitrator

Date