Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 250

FSCO A13-002389

BETWEEN:

AMARJIT SIDHU

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person at ADR Chambers on September 14-17, 2015 and May 16-18, 2016 and by written submissions due June 29, 2016

Appearances:

Mr. Oneal Banerjee, Mr. Rajan Basi, Mr. Balraj Brar and Mr. Rocco Lofranco participated for Mrs. Amarjit Sidhu

Mr. Darrell March participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mrs. Amarjit Sidhu, was injured in a motor vehicle accident (“MVA”) on February 15, 2011. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the SABS.¹ Wawanesa denied Mrs. Amarjit Sidhu’s claim for benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Amarjit Sidhu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Are Mrs. Sidhu’s injuries considered catastrophic as defined under the SABS as a result of the MVA on February 15, 2011?

2. Is Mrs. Sidhu entitled to medical benefits in the amount of $1,024.73 for chiropractic services by Dr. Jessa, OCF-18 dated February 19, 2013?

3. Is Mrs. Sidhu entitled to medical benefits in the amount of $1,024.73 for massage therapy by Tara Woodlase, OCF-18 dated March 6, 2013?

4. Is Mrs. Sidhu entitled to medical benefits in the amount of $1,024.73 for physiotherapy by Dr. Jessa, OCF-18 dated April 5, 2013?

5. Is Mrs. Sidhu entitled to medical benefits in the amount of $99.14 for invoice #2685444 from Complete Rehab, OCF-18 dated April 9, 2013?

6. Is Mrs. Sidhu entitled to medical benefits in the amount of $2,860.14 for chiropractic and massage therapy by Dr. Jessa, OCF-18 dated February 3, 2014?

7. Is Mrs. Sidhu entitled to medical benefits in the amount of $1,024.73 for an exercise program by Dr. Jessa, OCF-18 dated July 8, 2013?

8. Is Mrs. Sidhu entitled to medical benefits in the amount of $1,894.72 for chiropractic therapy by Complete Rehab, OCF-18 dated April 28, 2015?

9. Is Mrs. Sidhu entitled to attendant care benefits in the amount of $2,137.35 per month from February 15, 2011 to present and on-going, less amounts paid?

10. Is. Mrs. Sidhu entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week in accordance with the SABS from February 15, 2011 to present and on-going?

11. Is Mrs. Sidhu entitled to the costs of examinations in the amount of $2,316.90 for a driver desensitization assessment by Dr. Judith Pilowsky, OCF-18 dated September 16, 2011?

12. Is Mrs. Sidhu entitled to the costs of examinations in the amount of $2,200.00 for a TMJ assessment by Dr. Lewandowski, OCF-18 dated August 30, 2011?

13. Is Mrs. Sidhu entitled to cost of examinations in the amount of $1,040.50 for a worksite assessment provided by Dr. Fred Langer and Lyudmila Lister from Jane/Yonge Medical Assessments Inc., OCF-18 dated October 14, 2011?

14. Is Mrs. Sidhu entitled to cost of examinations in the amount of $2,200.00 for an orthopaedic assessment by Dr. Fred Langer of Jane/Yonge Medical Assessment Inc., OCF-18 dated September 11, 2012?

15. Is Mrs. Sidhu entitled to cost of examinations in the amount of $2,200.00 for a neurological assessment by Dr. Fred Langer of Jane/Yonge Medical Assessment Inc., OCF-18 dated September 11, 2012?

16. Is Mrs. Sidhu entitled to cost of examinations in the amount of $17,176.00 for a catastrophic assessment by Dr. Becker, OCF-18 dated April 28, 2015?

17. Is Mrs. Sidhu entitled to a special award?

18. Is. Mrs. Sidhu entitled to interest for the overdue payment of benefits?

19. Is either party liable to pay expenses in respect of the Arbitration?

Result:

1. Mrs. Sidhu’s injuries are considered to be catastrophic and this claim is accepted.

2. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for chiropractic services by Dr. Jessa, OCF-18 dated February 19, 2013, and this claim is accepted.

3. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for massage therapy by Tara Woodlase, OCF-18 dated March 6, 2013, and this claim is accepted.

4. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for physiotherapy by Dr. Jessa, OCF-18 dated April 5, 2013, and this claim is accepted.

5. Mrs. Sidhu is entitled to medical benefits in the amount of $99.14 for invoice #2685444 from Complete Rehab, OCF-18 dated April 9, 2013, and this claim is accepted.

6. Mrs. Sidhu is entitled to medical benefits in the amount of $2,860.14 for chiropractic and massage therapy by Dr. Jessa, OCF-18 dated February 3, 2014, and this claim is accepted.

7. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for an exercise program by Dr. Jessa, OCF-18 dated July 8, 2013, and this claim is accepted.

8. Mrs. Sidhu is entitled to medical benefits in the amount of $1,894.72 for chiropractic therapy by Complete Rehab, OCF-18 dated April 28, 2015, and this claim is accepted.

9. Mrs. Sidhu is entitled to attendant care benefits in the amount of $2,137.35 per month, less amounts paid up until October 18, 2014. From October 19, 2014 and onward, the Applicant is entitled to $1,493.91 per month, less amounts paid and thus, this claim is accepted in part.

10. Mrs. Sidhu is entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week in accordance with the SABS from February 15, 2011 to present and on-going and this claim is accepted.

11. Mrs. Sidhu is not entitled to cost of examinations in the amount of $2,316.90 for a driver desensitization assessment by Dr. Judith Pilowsky, OCF-18 dated September 16, 2011, and this claim is dismissed.

12. Mrs. Sidhu is entitled to cost of examinations in the amount of $2,200.00 for a TMJ assessment by Dr. Lewandowski, OCF-18 dated August 30, 2011, and this claim is accepted.

13. Mrs. Sidhu is not entitled to cost of examinations in the amount of $1,040.50 for a worksite assessment provided by Dr. Fred Langer and Lyudmila Lister from Jane/Yonge Medical Assessments Inc., OCF-18 dated October 14, 2011, and this claim is dismissed.

14. Mrs. Sidhu is entitled to cost of examinations in the amount of $2,200.00 for an orthopaedic assessment by Dr. Fred Langer of Jane/Yonge Medical Assessment Inc., OCF-18 dated September 11, 2012, and this claim is accepted.

15. Mrs. Sidhu is entitled to cost of examinations in the amount of $2,200.00 for a neurological assessment by Dr. Fred Langer of Jane/Yonge Medical Assessment Inc., OCF-18 dated September 11, 2012, and this claim is accepted.

16. Mrs. Sidhu is entitled to cost of examinations in the amount of $17,176.00 for a catastrophic assessment by Dr. Becker, OCF-18 dated April 28, 2015, and this claim is accepted.

17. Mrs. Sidhu is not entitled to a special award and this claim is dismissed.

18. Mrs. Sidhu is entitled to interest for the overdue payment of benefits.

19. Mrs. Sidhu is entitled to her expenses in respect of the Arbitration Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“the DRPC”).

EVIDENCE AND ANALYSIS:

MOTION: September 14, 2015

At the beginning of the first day of the Hearing, there were two Motions brought forward by the Insurer. The first Motion was a request that the catastrophic report from Omega Medical by Dr. Taj Getahun, an orthopaedic surgeon, should not be admissible at the Hearing because Dr. Getahun’s report wasn’t received by the Insurer as part of the Applicant’s Index Brief. The contents of his report addressed orthopaedic impairment and lower extremity impairment as part of the Applicant’s catastrophic determination.

The second Motion related to the Applicant’s witness list, specifically as it related to allowing Dr. Getahun and Mr. Alex Amigud to testify at the Hearing. They were only placed on the Applicant’s witness list the Friday prior to the Hearing, September 11, 2015, which fails to comply with Rule 41.1 of the DRPC.²

I instructed both parties to provide me written arguments by 6 p.m. on September 14, 2015 as to each party’s position and case law related to both matters.

Ruling on the Motions

In its written submissions, the Insurer argued that since the report of Dr. Getahun wasn’t in the original Applicant’s Index Brief served on the Insurer and only was part of a Supplemental Applicant’s Brief served on the Insurer the Wednesday prior to the Hearing, September 9, 2015, it should not be allowed to be entered into evidence at the Hearing. In the Insurer’s opinion, this violated Rule 39.1 of the DRPC. The Applicant argued that regardless of when Dr. Getahun’s report was entered into the Applicant’s Index Brief, the Insurer did in fact receive the report prior to the 30-day deadline via email and therefore Rule 39.1 of the DRPC was complied with. After receiving submissions from both parties on the Motion, I ruled that I would allow the catastrophic report of Dr. Getahun to be submitted into evidence at the Hearing even though it wasn’t included in the Applicant’s Index Brief but was served on the Insurer prior to the Hearing via email prior to the 30-day rule in the DRPC. In terms of the DRPC, there is no strict requirement for an index to be submitted at all prior to the Hearing.

Rule 39.1 of the DRPC states that all documents, reports (including experts’ reports) and assessments to be introduced at a Hearing by either party must be served on the other party at least 30 days before the first day of the Hearing. The rule regarding service of documents is located in Rule 7.1 of the DRPC.³ In that Rule, it does not specify a method of service, just that the documents must be served. An email correspondence is an approved method in which to deliver a document as per 7.1(f) of the DRPC. Even though Dr. Getahun’s report was not part of the Applicant’s Index Brief, in my opinion, it does not constitute a failure to abide by Rule 39.1 as it was previously served. Therefore, based on the email service of the report by the Applicant on the Insurer, dated July 9, 2015, I allowed Dr. Getahun’s catastrophic report to be entered into evidence.

The second Motion related to allowing Dr. Getahun and Mr. Alex Amigud to testify at the Hearing. Both parties agreed that Dr. Getahun was only placed on the witness list as of the Friday before the Hearing and that Mr. Amigud was placed on the same list in order to notify him to be made available for cross examination. The original insurance adjuster from Wawanesa was named on the witness list; however, that adjuster had retired prior to the Hearing. Applicant’s counsel only was made aware of this 1 week prior to the Hearing. The Insurer never placed Mr. Amigud on its witness list and the Applicant didn’t either.

After receiving submissions from both parties, I ruled that Dr. Getahun could not testify because he was not on the witness list 30 days prior as per Rule 41.1 of the DRPC. Similarly, I ruled that Mr. Amigud could not testify because he too was not on either party’s witness list 30 days prior to the Hearing.

MOTION: September 15, 2016 - Adjuster’s Log Notes

On day 2 of the Hearing, there was a Motion brought forward by the Applicant related to Wawanesa’s adjuster’s log notes that were requested by the Applicant but not produced by the Insurer. Since this Hearing would be bifurcated, I agreed that prior to the start of the second part of the Hearing, I would accept written submissions by both parties as to their positions with regards to the production of the Insurer’s adjuster’s notes. Written submissions from the Applicant were due October 8, 2015 followed by submissions shortly thereafter by the Insurer. On October 6, 2015, Applicant’s counsel notified myself and Insurer’s counsel that they wanted to withdraw their Motion related to the adjuster’s log notes. The Insurer consented to the withdrawal.

MOTION: May 16, 2016 - Allowing more than 2 experts to testify

On the first day of the resumption of this Hearing, Applicant’s counsel put forward a Motion requesting permission to have more than two experts testify. Applicant’s counsel requested up to four experts to testify at the Hearing. The Applicant wanted to call as experts, Dr. Azadian, Dr. Sangha, Dr. Becker and Ms. Lister, R.N. Insurer’s counsel opposed this motion. Applicant’s counsel stated that there was no duplication of expertise with all of these experts, and thus, she was requesting relief from Rule 42 of the DRPC.

After consideration, I denied the Applicant’s request and only allowed two experts to testify at this Hearing because I felt that the reports that were submitted were sufficient and by allowing additional experts to testify, it would unduly lengthen an already long Hearing. The Applicant had previously called Dr. Azadian to testify and following my ruling, the Applicant called Dr. Sangha as her second expert witness.

DECISION

BACKGROUND

The Applicant was involved in a MVA on February 15, 2011. She was seated in the front passenger seat of the vehicle. The Applicant’s daughter was driving the vehicle and made a left turn in front of an oncoming car. The airbags deployed in the car as a result of the collision. The impact was on the passenger side where the Applicant was seated. The resulting accident caused approximately $26,000 in property damage to the vehicle.⁴ The Applicant’s daughter was found to be at fault in the accident.

The Applicant was taken by ambulance to the hospital.⁵ The hospital records from William Osler (Brampton Civic Hospital) showed that the Applicant suffered substantial physical injuries including a fractured femur as a result of the MVA.⁶ Dr. Hanna performed surgery to repair the Applicant’s broken femur. The Applicant spent approximately 2 weeks in the hospital after the accident. As part of the surgery, Dr. Hanna implanted a supporting rod and distal femur locking plate in the Applicant’s leg.⁷

An OCF-1 was submitted by the Applicant on April 16, 2011 with the assistance of her daughter because the Applicant’s English skills were weak.⁸ To date, Wawanesa paid $49,654.24 in medical and rehabilitation benefits, $92,624.58 in income replacement benefits and $40,239.14 in assessments. Ultimately, the Applicant claimed treatment and benefits beyond the $50,000 medical/rehabilitation limit and these were denied by the Insurer. The Applicant filed an Application for Arbitration on February 26, 2013.⁹ The main issue at this Hearing is to determine whether the Applicant suffered a catastrophic impairment as a result of the MVA. The other issues at this Hearing focused on entitlement to housekeeping and home maintenance benefits, assessments, medical benefits, the quantum of attendant care benefits, special award and interest.

The onus is on the Applicant to prove her case. At the Hearing, after the Applicant concluded her case, the Insurer declined to call any witnesses. In submissions from both sides, I was asked to draw an inference from this decision. I am not drawing any inferences from this decision one way or another. Both sides have significant latitude in which to determine who they wish to call to testify.

The Applicant

The Applicant was 55 years old at the time of the MVA. She had immigrated to Canada from India in 1988. Her highest level of education completed was Grade 10. The Applicant is married and has 3 daughters. The Applicant’s family doctor is Dr. Baath and periodically, Dr. Vanvat. Both are affiliated with the Sandalwood Medical Centre. The first post-surgery visit to the Applicant’s family doctor was on August 28, 2011. The Applicant suffered 2 types of physical injuries as a result of the accident. The first type of injury that the Applicant suffered was a broken femur and the second injury was soft tissue injuries.

The Applicant testified that she has little to no recollection of the events surrounding the accident. From a psychological perspective, the Applicant testified that she has hallucinations and periodically hears voices/sounds ringing in her ears. From a physical perspective, she testified that her pain is not going away and in fact, when the weather changes and becomes colder, her pain increases. The Applicant stated at the Hearing that she had numerous areas of pain around her body. She complained of head pain (including forehead), pain in both shoulders, arms and elbows. She also experienced pain in both legs, knees and shins. She testified that she favours her right leg because it can’t take a lot of pain. In addition, the Applicant also testified at the Hearing that her right leg femur suffered two fractures as a result of the accident and required surgery. She stated that her doctor confirmed that after her surgery on her broken leg, that her right leg is now shorter than her left leg. The Applicant testified that she had no pain prior to the accident and in fact led an active lifestyle.

The Applicant stated that she is currently taking Tylenol 3 and Advil pain medication which she takes 3-4 times a day. After the accident, the Applicant testified that she used a wheelchair, walker, crutches and currently a cane in order to be mobile. She has trouble walking up and down stairs in her home. When she is inside her residence, she uses other assistive devices such as a seat in the shower and a special railing throughout the house in order to function.

From a psychological perspective, the Applicant testified that she has experienced psychological issues since the Accident. She confirmed that she has been regularly seeing Dr. Dhaliwal, a psychiatrist, for the past 4 years because of these problems.¹⁰ The Applicant has had difficulty sleeping since the accident. She suffers from post-concussion syndrome, depression, post-traumatic stress disorder, headaches, memory loss, chronic pain, in addition to having a constant ringing in her ears that was only present after the accident. She also has difficulty remembering names, conversations, putting things away after their use and is overall forgetful. Although he didn’t testify, Dr. Lance Maji, a neurologist, diagnosed the Applicant as having suffered a closed head injury in a report dated October 25, 2012.¹¹

The Applicant testified that she told her doctor of these problems. She also stated that she takes up to 12 pills a day for psychological issues which she did not take prior to the accident. As stated earlier, Dr. Dhaliwal is the psychiatrist that the Applicant was referred to by her family doctor. In his notes, he records that the Applicant has complaints of depression, wakes up at night, and has anxiety, pain and hallucinations.¹² When asked what makes her depressed, the Applicant said that when looking at her life prior to the accident as compared to now, she gets depressed. She testified that she is dependent on her family as her support system for virtually everything while she was completely independent prior to the accident.

From her testimony, the Applicant stated that she had an active social life prior to the accident. She participated in a number of activities outside the house with friends and family. She worked, shopped and walked to the Sikh Temple from her house just to name a few activities. While at the temple, she would help serve food to others, participate in activities, and would also be an active participant in the prayers. The Applicant testified that she no longer has a driver’s license, so she is driven to the temple by friends or family on the rare occasion she does attend.

The Applicant testified that she doesn’t help out at temple like she did before the accident. She doesn’t participate in prayer activities as she did prior to the accident. She now goes to temple sporadically, where before the accident it was much more frequent.

At the Hearing, under cross examination by the Insurer, the Applicant testified that after the accident, she no longer worked. The Applicant filed an OCF-2 after the accident.¹³ She used to work 5 days a week when her place of employment, Wondercard, was busy, however there were times when she was laid off when business was slow. Wondercard was a small business and the majority of employees were of Sikh/Indian descent. The Applicant testified that her job responsibilities included gluing cards together and making envelopes. She was also involved in picking up boxes. The Applicant testified that she liked working because it made her feel productive. She felt she was part of the social fabric because her colleagues were of the same culture as her.

The Applicant applied for income replacement benefits. The Insurer paid pre 104 week benefits. In addition, the Applicant continued to receive income replacement benefits post 104 when the Insurer determined that the Applicant suffered a complete inability to carry on employment for which she is reasonably suited. Ultimately, the Applicant applied for CPP disability benefits and her application was approved in approximately August of 2015.

I found the Applicant’s testimony as it related to her pain complaints to be consistent with the medical documents. The Insurer brought the credibility of the Applicant into question throughout the Hearing. In my opinion, however, the objective medical evidence overwhelmingly confirmed the medical issues that the Applicant was complaining about.

Catastrophic Determination

An OCF-19 (Application for Determination of Catastrophic Impairment) was filled out by Dr. Hanna, the Applicant’s treating orthopaedic surgeon and submitted on March 11, 2013.¹⁴ He states that, in his opinion, based on the injuries that the Applicant sustained as a result of her MVA, that she is catastrophically impaired under criteria 7¹⁵ and 8.¹⁶

The Insurer conducted multiple assessments showing that the Applicant’s injuries were not considered catastrophic.¹⁷ When assessing the Applicant for psychological impairment under criteria 8, the Insurer’s psychological assessors found she only had a moderate impairment of all 4 spheres. The Applicant’s assessment found that she had a marked impairment in 3 out of 4 spheres.

When looking at the Whole Person Impairment (“WPI”) for the Applicant, the Insurer concluded that the Applicant had a 28% physical impairment rating. The Insurer also concluded that the Applicant had a psychological rating of 15-29%. This gave the Applicant an overall combined score under the threshold for catastrophic determination which is 55%.¹⁸ Consequently, the Applicant’s assessors gave her an overall combined score over the 55% threshold.

When looking at the catastrophic assessments that were completed by the Insurer’s assessor, Dr. Jaroszynski, he did not have in his possession Dr. Hanna’s clinical notes and records at the time of his report. Dr. Hanna’s clinical notes and records alluded to a potential for arthritis in the Applicant’s knee. Even with the follow up addendum, Dr. Jaroszynski said there would not be a problem with the Applicant’s knee, but x-rays since that report show that she now has arthritis. In my opinion, this WPI catastrophic report by the Insurer is missing significant information that would be required to formulate a proper conclusion about the Applicant’s condition.

From the Applicant’s perspective, there were various catastrophic reports filed. There was a psychological report dealing with marked impairment by Dr. Azadian. There was a catastrophic report from a physiatrist and orthopaedic surgeon, namely Dr. Sangha and Dr. Getahun. This report stated that the Applicant’s x-rays show arthritis in the Applicant’s knee.¹⁹ It specifically shows tri-compartmental change and degenerative change which means that the Applicant is almost certain to have arthritis.

Dr. Becker was retained by the Applicant to conduct a file review of the Insurer’s assessments from Westpark including those assessments conducted by Dr. Mathoo (catastrophic impairment physiatrist report), Dr. Zielinsky (catastrophic impairment psychological report), Dr. Jaroszynski (catastrophic impairment orthopaedic surgeon report), Ms. Cottrell (catastrophic impairment occupational therapist report) and Dr. Mascarenhas’ file review. Dr. Becker found that the Insurer’s reports overlooked key items in the catastrophic determination. The Insurer’s reports did not include the Applicant’s issues related to Temporomandibular Joint (“TMJ”) dysfunction, scarring or medication that the Applicant was taking. It also did not have a future rating for knee arthroplasty (knee replacement) and potential for developing arthritis as part of the Insurer’s catastrophic rating which the Applicant’s report did.²⁰

Out of the total group of assessors, the only catastrophic experts to testify at the Hearing were Dr. Azadian and Dr. Sangha, both of whom were retained by the Applicant for their expert opinion.

Dr. Azadian

Dr. Azadian testified that the psychological issues/diagnosis of the Applicant are a direct result of the accident. He has been a psychiatrist since 2000 and attends to approximately 350 patients per month. He conducts assessments for the Workplace Safety and Insurance Board and Immigration and Refugee Board, in addition to personal injury assessments, including assessments at the request of both Insurer’s and Applicant’s counsel.

I found the doctor’s testimony to be fact driven and straight forward. When asked how he assesses a patient, he stated that he performs a document review, he relies on the on-boarding documents that a patient fills out, and most importantly conducts a clinical interview/exam in order to come to the conclusions in his report - in this case, the report of September 17, 2014.²¹ When asked by the Insurer why he didn’t reference observations noted in the Insurer’s doctor’s report, he replied that “he only is interested in provable validity testing results as opposed to observations and opinions”. The Insurer’s assessors had observations throughout their reports and thus, he utilized the validity testing but not the observations.

The doctor testified that he found the Applicant to suffer from anxiety and severe pain and that she had trouble with day to day activities of life. He also found that the Applicant couldn’t handle simple stress and her ability to concentrate was extremely limited. She was experiencing psychotic symptoms. The doctor testified that the Applicant had minimal energy to complete tasks. He found her to be depressed and easily irritated and he found that she had difficulty handling complex instructions. The Applicant was diagnosed with a sleep disorder, feelings of hopelessness, poor appetite and major depression disorder.

The Applicant had a psychological assessment completed from Dr. Silverman (an Insurer’s assessor) on behalf of Wawanesa on July 19, 2012. Dr. Azadian testified that he relied on the validity testing of Dr. Silverman because Dr. Silverman completed validity tests on the Applicant and the results fell within the proper range one would expect. Dr. Silverman did a traumatic symptoms inventory, pain patient profile, SIMS (Structured Inventory of Malingered Symptomatology) test and a TOMM (Test of Memory Malingering). Dr. Silverman’s report said that the Applicant’s scores fell within the normal limits.²² Dr. Azadian accepted these results.

Dr. Azadian, through his interaction with the Applicant, also didn’t detect any issues from his observations. He testified that based on his experience, he knows when patients are lying which would cause the results from the exam to be skewed. Dr. Azadian confirmed under cross examination that his assistant gives the patients the forms to fill out and that they are not supervised by him, however, he confirms the validity of the information on the forms by using techniques in his exams done at his office.

Additionally, the Insurer asked why Dr. Azadian didn’t complete a physical exam as part of his assessment. He replied that in all his years in the profession, he has never heard of a psychiatrist completing a physical exam as part of a catastrophic psychological diagnosis.

In conducting his assessment of the Applicant, Dr. Azadian used the DSM-IV rating scale. He put “deferred” in any axis area which he could not properly assess, but in axis III and axis IV, he provided commentary, and in axis V diagnosed the Applicant a Global Assessment of Functioning (“GAF”) in the range of 40-45. He gave the Applicant this rating because of the severity of the illness and depression, limitation of function, doesn’t maintain friendships, can’t work and has trouble coping in a community environment. Dr. Azadian testified that the average person has a GAF score of 85.

The doctor testified that he found the Applicant to be designated as Class IV marked impairment in 3 out of 4 categories: social, work and concentration. As part of his testimony, he suggested that the Applicant, if reassessed today, would most likely be found marked in the 4th category as well which was “daily living”. In order to be considered Catastrophic, a patient only needs to be found with a marked impairment in 1 out of 4 spheres based on prior case law from the Court of Appeals decision in Pastore v. Aviva Canada.²³

When comparing his catastrophic impairment findings with the Insurer’s expert, Dr. Zielinsky’s, Dr. Azadian disagreed with the Insurer’s expert.²⁴ Dr. Azadian thought that Dr. Zielinsky’s report didn’t have a proper rating based on the evidence presented. Since the Insurer did not call Dr. Zielinsky to testify, Dr. Azadian’s testimony provided further insight into the reports to reference.

Based on the information supplied, I am of the opinion that I prefer the findings of Dr. Azadian’s report over Dr. Zielinsky’s report. Dr. Azadian has what could be considered a high volume of patients and has years of experience authoring assessment reports. The Insurer’s opinion is that the results of Dr. Azadian’s report are unreliable based on the information that Dr. Azadian attained from his assessment of the Applicant. Based on the evidence and the testimony at the Hearing, I respectfully disagree. I found Dr. Azadian’s testimony and clinical opinions to be reliable and I accept his findings.

Dr. Sangha

Dr. Harpeet Sangha is a physiatrist in Toronto. He completed his physiatry and physical medicine residency in 2010. I found his testimony to be very persuasive. He stated that 80% of his practice is in a hospital setting and only 20% is completing reports for clinics. He will typically spend one day a week doing assessment related work. He has been retained by Omega Medical since 2011 to conduct mainly catastrophic related assessments. Dr. Sangha completes somewhere between 150-175 assessments per year with the vast majority of them being completed on behalf of Omega Medical’s patients. As part of his testimony, he explained his methodology when conducting assessments. He will review the Applicant’s entire medical brief. He will compile a medical history of the Applicant and will also conduct a thorough medical exam. Dr. Sangha also confirmed that he uses the AMA 4th edition guide²⁵ when assessing an Applicant which is mandatory for an assessor to use when rating catastrophic impairment.

Dr. Sangha was retained to complete the upper body extremity assessment and Dr. Getahun was responsible for the lower extremity assessment. Together, both assessments would be combined to provide the physical part of a WPI rating. In his report, Dr. Sangha focused on 8 areas – Medication, Cervical Spine, Lumbar Spine, Lower extremities, Sleep issue, Scarring, Cognitive and TMJ.

There was significant common ground with the catastrophic report from Dr. Mathoo (Insurer’s Report) at Westpark and the Applicant’s reports, however, where differences were present, they were obvious. The Insurer entered the Westpark report into evidence to counter Mr. Sangha’s and Dr. Getahun’s reports. When comparing the Dr. Sangha and Dr. Getahun report to Dr. Mathoo’s report, it is easy to understand where the difference arises in the number calculated for physical impairment. For example, the Insurer’s report didn’t account for the Applicant’s reliance on pain medication, while Dr. Sangha added a 3% rating because of the medication. The Applicant’s diagnosis of sleep apnea was not part of the Insurer’s report, but Dr. Sangha gave this a 5% rating. The Insurer’s report made no comment on scarring, while Dr. Sangha gave this a 3% rating. When the Insurer’s report was written, it was completed without having a copy of the X-rays showing arthritis in the Applicant’s knee or a recommendation for a future knee replacement even though the x-rays and the future knee replacement recommendations were available at the time. These differences were among the reasons that account for the discrepancy of the catastrophic rating between Insurer and Applicant.

Dr. Sangha found the Applicant to have had a suboptimal outcome after her surgery. As was explained in his testimony, an optimal outcome would occur when a patient has no side effects after undergoing surgery. In the case of the Applicant, she has a suboptimal outcome because she requires pain medication and basically will never be able to return to her pre-accident condition. As part of his exam, Dr. Sangha found the Applicant’s presentation to match her symptoms. After reviewing the Applicant’s files and conducting the physical, he found the Applicant to have a 20% WPI. This 20% combined with the results of Dr. Getahun’s assessment gave the Applicant a 44% whole person impairment rating. Ultimately this 44% rating together with either Dr. Azadian’s (Applicant’s psychological report) or Dr. Zielinsky’s (Insurer’s psychological report), places the Applicant over the threshold to be determined to be catastrophic.

Having said that, this is a moot point because the Applicant would already be considered catastrophic based on Dr. Azadian’s assessment. He found the Applicant to have a marked impairment in 3 out of 4 spheres when only 1 is required. All that the physical catastrophic assessments do is reinforce the determination that the Applicant’s injuries are considered catastrophic in nature because of the accident on February 15, 2011.

Sukhjeet Sidhu - The Daughter

Ms. Sukhjeet Sidhu was born on July 2, 1997 and is the youngest of the 3 daughters of the Applicant. She lives at home with the Applicant and the rest of the family. I found her to be a credible witness whose testimony withstood a strong cross examination by the Insurer. She confirmed the testimony of her mother and was able to shed light on her mother’s ability related to personal care and contribution to work around the house prior to the accident and her mother’s ability after the accident in these same areas. She testified that in her opinion, based on her daily observations, that her mother’s impairments resulting from the accident have prevented her from doing activities that she did prior to the accident.

Sukhjeet confirmed that she lives with the Applicant in a two story house, approximately 2,500 sq. ft. in size. There was a large garden in the backyard that the Applicant tended to before the accident. She said that prior to the accident her mother would wake up at 6:00 a.m. and would help her and her sisters get ready for school. The Applicant would walk her daughters to school before going to work most days.

She also confirmed that her mom had an active social life prior to the accident where she would visit family and friends. The Applicant has a large extended family where 5-6 different groups would come over to dinner at the Applicant’s house 1-2 times per month before the accident. Sukhjeet confirmed that the Applicant loved to shop for her family. She also liked to sew clothing, especially cultural clothes and would do beading for hours on end.

Prior to the accident, she confirmed that her mother’s main enjoyment came from going to temple. She was active in spiritual attendance as well as volunteering at the temple to help the overall community. Since the accident, her mother has virtually withdrawn from the community. She used to walk to the temple, now she hardly goes and when she does, she is driven there. Where she was active before when she was at the temple, now she only sits at the back and that is for a short period of time. When she does attend, it is only for special occasions. She is terrified of getting knocked down by people, so she avoids crowds for fear of re-injuring herself. The Applicant’s daughter also testified that her mother gets embarrassed at temple because she has to sit by herself and everyone can see her. In his cross examination, the Insurer’s counsel focused on a number of items, including the number of times that the Applicant went to temple prior to the accident when compared to after the accident. There might have been a small discrepancy in the number reported by the daughter as compared to the Applicant, however, I find this point moot. Of importance is the fact that the Applicant went to temple significantly less after the accident than before the accident. The exact number of times she attended prior or post-accident is irrelevant.

Sukhjeet testified that there have been some issues since the accident with her mother’s mental health. Prior to the accident, the Applicant had an excellent memory. She would remember phone numbers, names, events at school, all the family’s appointments, etc. Now, she has trouble remembering things and, as her daughter testified, she is not nearly as sharp. Her daughter would have to keep reminding her of things. When Sukhjeet is in school, her mother would call her to find out what time she is coming home, even though she comes home at the same time every day. She also has to help her with her medication to make sure that she is taking the right dosage at the correct time.

The Applicant’s daughter testified that this accident has changed her mother in profound ways. Her mother also gets irritated easily and no longer has a social life. She is withdrawn, she has lost her passion for doing things and because of her injuries, whatever activities that she was good at prior to the accident, she is no longer good at and it frustrates the Applicant in numerous ways.

Housekeeping and Home Maintenance

In order to claim housekeeping and home maintenance benefits, it is important to establish what the Applicant’s duties were in this area prior to the accident. The Applicant testified that she used to cook for her family, shoveled snow, cut the grass and did daily household chores. Now, she lacks physical balance after the accident and can’t perform her housekeeping duties. Her daughter testified that her mother was responsible for the household chores and did them regularly prior to the accident. Her daughter testified that before the accident, her mother took pride in making the gardens around the house beautiful. Her mother also had a knack for interior design and would paint the walls of the family home when the look of a room needed updating. In addition, the Applicant would also purchase new furniture and rearrange existing furniture to match the new look. The Applicant according to her daughter’s testimony was very independent when it came to maintaining the household.

When it came to cleaning the house prior to the accident, the children were responsible for their bedrooms and Sunday would be housekeeping day. Her mother would supervise the children cleaning their rooms while she took care of the rest of the house. It would take all day to complete the chores around the house. Since the accident, the Applicant doesn’t clean, do interior decorating or any of the other household chores that she once did.

Her daughter also confirmed that her mother was a great cook and enjoyed having others over for dinner. She would also cook for others when at temple. The Applicant maintained a large vegetable garden at the back of the house which prior to the accident, she tended to on a regular basis. After the accident, the Applicant’s husband tends to the garden and the Applicant tells him and the kids how to cook. She’s not active and will only sit outside on warm days.

In the testimony of Sukhjeet and the Applicant, it was stated the personal support worker (“PSW”) comes over to the house on a weekly basis for a day. The Applicant doesn’t do the housework anymore. When the PSW is not at the house, the Applicant’s children will assist with housekeeping along with the Applicant’s spouse. The Applicant also now pays a tailor to sew and do alterations that she used to do prior to the accident. She testified that her mother hates not being able to work around the house and it makes her moody. The Applicant’s daughter’s testimony confirmed all of the important facts that had been present earlier in the case related to the housekeeping and home maintenance tasks.

The Insurer initially conducted an assessment related to housekeeping and home maintenance tasks on October 20, 2011.²⁶ The Insurer found that the Applicant qualifies for housekeeping and home maintenance based on her condition but for the reason that the Applicant did not purchase optional coverage and for the fact that the Applicant was not deemed to be catastrophic, that this benefit is not payable. In addition, there was not substantial proof that a PSW was retained or that any family members suffered an economic loss because of their housekeeping and home maintenance duties. The Insurer did not pay benefits.

The Insurer conducted a follow up assessment for housekeeping and home maintenance on July 11, 2012.²⁷ This assessment concluded that the Applicant could increase her participation with these tasks when compared to the last assessment, but that she still required some housekeeping and home maintenance assistance. The Insurer also continued to stand by its earlier claim of not having substantial proof as to who was completing housekeeping and home maintenance after the accident on behalf of the Applicant.

The Applicant also had multiple in-home assessments completed on her behalf by Ms. Lyudmila Lister who is a registered nurse. Ms. Lister had concluded that the Applicant did require housekeeping and home maintenance assistance post-accident just as the Insurer’s in-home assessor came to the same conclusion.

In order to successfully claim a benefit, an Applicant must prove entitlement. I find the testimony of the Applicant and the Applicant’s daughter met this threshold. I found both the Applicant and her daughter to be credible witnesses, and the fact that they had a PSW assist with the housekeeping and home maintenance needs after the accident further supported their testimony. The totality of the evidence entitles the Applicant to housekeeping and home maintenance benefits at $100.00 per week in accordance with the SABS now that I have determined that her injuries are deemed to be catastrophic.

Attendant Care

In order to claim entitlement to attendant care benefits, an Applicant must establish the impairment that they have is a result of the accident and provide details as to why attendant care is required because of this impairment. Additionally, the Applicant must prove that the individual providing attendant care to the Applicant either was a professional service provider and/or show that the individual suffered an economic loss as a result of being the attendant care provider.²⁸

The Insurer’s assessors agreed that the Applicant required attendant care benefits, although at a substantially lower amount than what the Applicant’s assessors submitted on the Applicant’s Form 1. Therefore, only the quantum of attendant care is in dispute. Since the Insurer agrees that the Applicant is entitled to attendant care benefits, in my opinion, the Insurer has conceded entitlement. The Applicant submitted M.R. v. Gore²⁹ in support of her position as it relates to attendant care benefits.

The Applicant submitted 3 Form 1 assessments as part of the Applicant’s attendant care claim. These in-home assessments were conducted by Ms. Lister.³⁰ The first Form 1 for attendant care benefits was filed on July 25, 2011 in the amount of $3,172.22. A supplemental Form 1 was filed on June 28, 2012 in the amount of $2,137.35. The most recent Form 1 was filed on October 19, 2014. It calculated attendant care benefits at $1,493.91 per month. According to the SABS, in Section 19(2), the amount of monthly attendant care is determined in accordance with the submission of a document titled “Assessment of Attendant Care Needs (Form 1)”.

The Insurer assessed the Applicant for attendant care benefits. Ms. Kathryn Blaney conducted an assessment in October of 2011.³¹ In her findings within her report, she determined that the Applicant does in fact require attendant care benefits in the amount of $539.11. A second in-home assessment was completed in July of 2012 and again the Applicant was found to require attendant care benefits however at a reduced amount of $292.03.³²

In the testimony of Sukhjeet and the Applicant, it was stated that a PSW comes over to the house on a weekly basis for a day in order to provide attendant care. Prior to the accident, the Applicant was able to bathe and maintain a daily routine of dressing. Now, the Applicant requires attendant care to put on her clothes in the morning. As stated earlier, this fact was confirmed by the Insurer’s own assessors in their report which stated that the Applicant required attendant care.

The Applicant’s daughter testified that she helped her mother with personal care need when the PSW was not present. The Applicant testified that she can shower and use the bathroom independently, but when it comes to activities such as washing her hair, drying it, styling it, she requires assistance. On some occasions, the Applicant’s daughter applies muscle cream to the Applicant’s body. In addition, the Applicant’s daughter testified that she also helps with nail care and other related activities that require her mother to bend over. Sukhjeet also confirmed as part of her testimony that her mother uses assistive devices wherever she can and when she finds it helpful.

As discussed above, prior to the accident, the Applicant was very active. She would go for long walks to temple, to the grocery store, to Tim Hortons, etc. She would also play badminton and basketball and engage in sports activities in the neighbourhood. Now, after the accident, the Applicant is not able to do these activities as she previously did. In terms of exercise, the Applicant’s daughter helps her mother get on the floor with her exercises. This wasn’t required before the accident. The Applicant requires help with arm stretches, lower body and back exercises. According to the testimony of the Applicant’s daughter, when the Applicant is able to go for walks, one of her daughters has to accompany her and the duration and speed of these walks is a fraction of what occurred prior to the accident.

In order to claim a benefit, an Applicant must prove entitlement. I find the testimony of the Applicant and the Applicant’s daughter supported by the medical testimony and evidence meets this threshold. I found both the Applicant and her daughter to be credible witnesses and the fact that the Applicant had a PSW assist the Applicant with attendant care needs after the accident further supports that conclusion. Considering the totality of the evidence, the Applicant is entitled to attendant care benefits. The Applicant stated that with the submission of her OCF-19, in addition to claiming attendant care benefits up to the two year mark from the date of loss, that she is claiming attendant care benefits from February 15, 2013 (post 104) and on-going.

Since the Insurer and the Applicant are in agreement in regards to entitlement to attendant care and it is only the quantum that is in dispute, I am fixing the amount payable for the various time periods in accordance with the various Form 1s completed for those time periods. The Applicant is entitled to attendant care in the amount of $2,137.35 per month, less amounts paid up until October 18, 2014. From October 19, 2014 and onward, the Applicant is entitled to $1,493.91 per month, less amounts paid. I prefer the Form 1s submitted by the Applicant because in my view, the evidence supports those Form 1s.

Special Award

The Applicant is claiming a special award because she is of the opinion that her claim for accident benefits has not been adjusted in good faith by the Insurer. Section 282(10) of the Insurance Act outlines an Arbitrator’s authority to grant a special award payment.³³ The onus of proof rests on the Applicant to prove that a special award is warranted.

In the Applicant’s opinion, Wawanesa failed to adjust this file in good faith as it related to the issue of catastrophic impairment. The Applicant believes that this resulted in an unreasonable denial – i.e. a withholding and delay of payment of attendant care benefits. An Applicant is not entitled to attendant care benefits past the 2 year mark after the date of loss unless they are determined to be catastrophic.

I find that a special award cannot be ordered against an Insurer solely on the basis that the Applicant disagreed with the Insurer’s findings. Wawanesa, in my opinion, had a reasonable basis for the denial, including reliance on its Insurer Examination. Merely having a difference of opinion does not entitle the Applicant to receive a special award.

Therefore, I disagree with the Applicant’s position as it relates to special award based on the evidence that was submitted at the Hearing and this claim is denied.

Interest for the Overdue Payment of Benefits

The Applicant is due interest on all payments as of the denial date of the benefits in dispute. Interest is payable at 1% per month compounded on outstanding payments as per Section 51(3) of the SABS.

CONCLUSION

The onus of proof is on the Applicant to prove her entitlement to benefits. Based on the evidence presented at this Hearing, she has achieved this threshold. I find the Applicant’s injuries are catastrophic in nature. In addition, based on the evidence, the Applicant is entitled to all medical benefits claimed. As for attendant care benefits, the Applicant is entitled to this benefit based on the evidence presented at the Hearing. In addition, the Applicant is entitled to housekeeping and home maintenance benefits.

With the assessments claimed, I find the Applicant is entitled to all assessments except for the following. The Applicant testified and it was confirmed by her daughter that the Applicant no longer has a driver’s license and when she did drive, she did it sparingly. Based on this testimony, the claim for a driver desensitization assessment is not reasonable and necessary because the Applicant would not benefit from such a program since she is not a licensed driver.³⁴ In addition, I am not allowing the cost of examination for a worksite assessment because it was confirmed at the Hearing that the Applicant no longer works and her CPP disability has been approved. Based on the testimony heard before me, the likelihood of the Applicant returning to the workforce in the foreseeable future is minimal at best.

EXPENSES:

The parties made no submissions on expenses. If they are unable to agree on the legal expenses of this case, an expense Hearing shall be requested within thirty days of the date of this decision in accordance with Rule 79 of the DRPC. If an expense Hearing is requested, the request shall be accompanied by a Bill of Costs describing the expenses claimed, services received and the costs, as well as submissions regarding entitlement to and/or the amount of such expenses.

September 26, 2016

Jeff Musson Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 250

FSCO A13-002389

BETWEEN:

AMARJIT SIDHU

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. Mrs. Sidhu’s injuries are considered to be catastrophic and this claim is accepted.

2. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for chiropractic services by Dr. Jessa, OCF-18 dated February 19, 2013, and this claim is accepted.

3. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for massage therapy by Tara Woodlase, OCF-18 dated March 6, 2013, and this claim is accepted.

4. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for physiotherapy by Dr. Jessa, OCF-18 dated April 5, 2013, and this claim is accepted.

5. Mrs. Sidhu is entitled to medical benefits in the amount of $99.14 for invoice #2685444 from Complete Rehab, OCF-18 dated April 9, 2013, and this claim is accepted.

6. Mrs. Sidhu is entitled to medical benefits in the amount of $2,860.14 for chiropractic and massage therapy by Dr. Jessa, OCF-18 dated February 3, 2014, and this claim is accepted.

7. Mrs. Sidhu is entitled to medical benefits in the amount of $1,024.73 for an exercise program by Dr. Jessa, OCF-18 dated July 8, 2013, and this claim is accepted.

8. Mrs. Sidhu is entitled to medical benefits in the amount of $1,894.72 for chiropractic therapy by Complete Rehab, OCF-18 dated April 28, 2015, and this claim is accepted.

9. Mrs. Sidhu is entitled to attendant care benefits in the amount of $2,137.35 per month, less amounts paid up until October 18, 2014. From October 19, 2014 and onward, the Applicant is entitled to $1,493.91 per month, less amounts paid and thus, this claim is accepted in part.

10. Mrs. Sidhu is entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week in accordance with the SABS from February 15, 2011 to present and on-going and this claim is accepted.

11. Mrs. Sidhu is not entitled to cost of examinations in the amount of $2,316.90 for a driver desensitization assessment by Dr. Judith Pilowsky, OCF-18 dated September 16, 2011, and this claim is dismissed.

12. Mrs. Sidhu is entitled to cost of examinations in the amount of $2,200.00 for a TMJ assessment by Dr. Lewandowski, OCF-18 dated August 30, 2011, and this claim is accepted.

13. Mrs. Sidhu is not entitled to cost of examinations in the amount of $1,040.50 for a worksite assessment provided by Dr. Fred Langer and Lyudmila Lister from Jane/Yonge Medical Assessments Inc., OCF-18 dated October 14, 2011, and this claim is dismissed.

14. Mrs. Sidhu is entitled to cost of examinations in the amount of $2,200.00 for an orthopaedic assessment by Dr. Fred Langer of Jane/Yonge Medical Assessment Inc., OCF-18 dated September 11, 2012, and this claim is accepted.

15. Mrs. Sidhu is entitled to cost of examinations in the amount of $2,200.00 for a neurological assessment by Dr. Fred Langer of Jane/Yonge Medical Assessment Inc., OCF-18 dated September 11, 2012, and this claim is accepted.

16. Mrs. Sidhu is entitled to cost of examinations in the amount of $17,176.00 for a catastrophic assessment by Dr. Becker, OCF-18 dated April 28, 2015, and this claim is accepted.

17. Mrs. Sidhu is not entitled to a special award and this claim is dismissed.

18. Mrs. Sidhu is entitled to interest for the overdue payment of benefits.

19. Mrs. Sidhu is entitled to her expenses in respect of the Arbitration Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 26, 2016

Jeff Musson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2The Dispute Resolution Practice Code (4th edition).
3. 3Ibid., Section 7.1.
4. 4Exhibit 1, Tab 29.
5. 5Exhibit 1, Tab 30.
6. 6Exhibit 1, Tab 31.
7. 7Exhibit 1, Tab 36.
8. 8Exhibit 2, Tab 13.
9. 9Exhibit 2, Tab 4.
10. 10Exhibit 1, Tab 34.
11. 11Exhibit 1, Tab 20, pg. 9.
12. 12Exhibit 1, Tab 34, pg. 2.
13. 13Exhibit 1, Tab 12.
14. 14Exhibit 1, Tab 27.
15. 15Criteria 7 on the OCF-19 is an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or
16. 16Criteria 8 on the OCF-19 is an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
17. 17Exhibit 2, Tab 17.
18. 18Exhibit 2, Tab 17, pg. 588.
19. 19Exhibit 1A, Tab 1.
20. 20Exhibit 1, Tab 25.
21. 21Exhibit 1, Tab 24.
22. 22Exhibit 2, Tab 17.
23. 23Insurer’s Book of Authorities, Tab 3 (Pastore v. Aviva Canada Inc., 2012 ONCA 642, 112 O.R. (3d) 523, 2012 ON CA 642).
24. 24Exhibit 2, Tab 17, pg. 559.
25. 25American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition.
26. 26Exhibit 2, Tab 17, pg. 324.
27. 27Ibid., Tab 17, pg. 360.
28. 28This requirement is set forth in the SABS. Section 19(3)(4) reads as follows: “Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a result of, providing the attendant care.”
29. 29Applicant’s Book of Authorities, Tab 5.
30. 30Exhibit 1, Tab 21, 22, 23.
31. 31Exhibit 2, Tab 17, pg. 285.
32. 32Ibid., Tab 17, pg. 360.
33. 33Section 282(10) provides: “If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.” R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.
34. 34Section 51(3) of the SABS.