Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 56 FSCO A14-003045

BETWEEN:

BHUPINDER SINGH GREWAL Applicant

and

AIG COMMERCIAL INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers on December 8 and 9, 2015

Appearances:

Mr. Bhupinder Singh Grewal did not participate Mr. Frank Burns and Mr. Joseph Corriero participated for Mr. Bhupinder Singh Grewal Mr. J. Claude Blouin and Mr. Michael Furyk participated for AIG Commercial Insurance Company of Canada

Issues:

The Applicant, Mr. Bhupinder Singh Grewal, was injured in a motor vehicle accident on January 18, 2009 and sought accident benefits from AIG Commercial Insurance Company of Canada (“AIG”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, 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. Is the Applicant entitled to receive medical benefits in the following amounts:

a) For services provided by Faith Physiotherapy:

i) $2,144.26 for physiotherapy, treatment plan, dated July 23, 2013;

ii) $1,682.90 for assessment and multiple regions therapy, treatment plan, dated March 18, 2014;

b) For services provided by Beverlee C. Melamed & Associates:

i) $4,119.27 for occupational therapy and rehabilitation coaching, treatment plan dated September 9, 2013;

ii) $3,946.01, and not as noted in the Report of Mediator, for occupational therapy and rehabilitation, treatment plan, dated February 18, 2014; and

iii) $5,225.97 for a gym membership, cognitive and learning therapy and motor function therapy, treatment plan, dated July 24, 2014;

c) $6,915.52 for speech language therapy provided by Michelle Cohen & Associates, treatment plan, dated October 4, 2013; and

d) $56,600 for multi-disciplinary rehabilitation treatment provided by Sierra Tucson (Arizona), treatment plan, dated January 11, 2015?

2. Is either party entitled to its expenses of the Arbitration proceeding?

3. Is the Applicant entitled to interest for overdue payment of benefits?

At the conclusion of the Hearing in final submissions, counsel for the Applicant sought to request a special award pursuant to s. 282(10) of the Insurance Act. That relief had been requested in the Application for Arbitration but it was not pursued at the Pre-Hearing stage and is not reflected in the Pre-Hearing letter as one of the issues I am to determine. Further, it was not identified as an issue at the outset of the Hearing when I requested that the parties confirm the issues to be determined in the proceedings. Counsel for AIG objected to the Applicant raising the issue at that stage in the proceeding and I agreed that to allow the issue to be raised at that stage would be procedurally unfair. Therefore I declined to hear submissions from the Applicant with respect to a special award.

Result:

1. The Applicant is entitled to receive medical benefits as follows:

a) For services provided by Faith Physiotherapy:

i) $2,144.26 for physiotherapy, treatment plan, dated July 23, 2013;

ii) $1,682.90 for assessment and multiple regions therapy, treatment plan, dated March 13, 2014;

b) For services provided by Beverlee C. Melamed & Associates:

i) $4,119.27 for occupational therapy and rehabilitation coaching, treatment plan, dated September 9, 2013;

ii) $3,946.01, and not as noted in the Report of Mediator for occupational therapy and rehabilitation, treatment plan, dated February 18, 2014; and

iii) $5,225.97 for a gym membership, cognitive and learning therapy and motor function therapy, treatment plan, dated July 24, 2014;

c) $6,915.52 for speech language therapy provided by Michelle Cohen & Associates, treatment plan, dated October 4, 2013;

d) $56,600 for multi-disciplinary rehabilitation treatment provided by Sierra Tucson (Arizona), treatment plan dated January 11, 2015.

2. The Applicant is entitled to interest on overdue payment of benefits at 2% per annum.

3. 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:

Background

The Applicant was injured in an accident while driving a truck in January 2009. It is agreed that he was catastrophically impaired as a result of the accident. A previous Arbitration Hearing was held on September 30 and October 1, 2 and 3, 2013 with respect to income replacement benefits, attendant care, medical benefits and other relief, and a decision was issued by Arbitrator Richard Feldman on August 7, 2014.²

Dr. Stephen Connell and Ms. Beverlee C. Melamed were the two witnesses in this proceeding. In April 2013, Ms. Melamed was appointed case manager pursuant to s. 17 of the Schedule. While she is a qualified occupational therapist, her task here was to co-ordinate services for medical and rehabilitation benefits for the Applicant. The treatment plans which are at issue in these proceedings flow from her team’s analysis of the Applicant’s condition and needs, with the exception of claim 1d) above, which is the recommendation of Dr. Connell (and which she supports). Ms. Melamed has provided reports to the adjuster and some of them are included in Exhibit 1, Tab 10. Specifically I have reviewed her July 2, 2013 Report (“Melamed July 2013 Report”) at Tab 10A of Exhibit 1; her September 10, 2013 Report (“Melamed September 2013 Report”) at Tab 10B of Exhibit 1; her March 5, 2014 Report (“Melamed 2014 Report”) at Tab 10C of Exhibit 1; and her October 27, 2015 Report (“Melamed 2015 Report”) at Tab 10D of Exhibit 1. These reports set out the status of the Applicant’s functioning and treatment and any progress he has made, as well as further recommendations which are the basis of the treatment plans under consideration in this proceeding. I am satisfied that Ms. Melamed has extensive background and expertise with respect to successful rehabilitation for persons with traumatic brain injury and needing psychiatric treatment, as well as physical rehabilitation issues. I also give her evidence considerable weight as the professional with the closest involvement in the treatment and challenges facing the Applicant and his family in earning a living and living a normal life.

There is, at this time, a consensus among the treatment providers and the assessors retained by AIG that the Applicant meets the necessary criteria for the DSM-5 diagnosis of Major Neurocognitive Disorder (associated with a Traumatic Brain Injury) and the differential diagnosis is Mild Neurocognitive Disorder. In addition, he suffers from an Adjustment Disorder with Mixed Anxiety and Depressed Mood that is secondary to the above Neurocognitive Disorder. One of the psychiatrists, Dr. Connell, is firm that the Applicant also suffers from Post-Traumatic Stress Disorder and Chronic Pain, and there appears to be agreement that the comorbidity of these diagnoses poses particular challenges for the Applicant’s treatment with a goal of returning him to normal living and pre-accident work.

In addition, the observations of both treatment providers and assessors are consistent. The Applicant has difficulty focusing and concentrating, or in the jargon of the reports, he has cognitive difficulties in attention and concentration. He has a deficit with multitasking, and has lost at least 30% and probably more of his memory. His intelligence is borderline since the accident, whereas he holds a Bachelor of Arts from the University of the Punjab and was trilingual (Hindi, Punjabi and some English) before the accident. His memory, attention, concentration, working memory, executive function, visual skills and basic language skills are all impaired as a result of the accident.

Medical Benefits Claim

Issue 1a) Claim for medical benefits for services provided by Faith Physiotherapy:

i) $2,144.26 for physiotherapy, treatment plan, dated July 23, 2013;³

ii) $1,682.90 for assessment and multiple regions therapy, treatment plan, dated March 13, 2014⁴

AIG referred the treatment plan in Issue 1a) i) for physiotherapy to Dr. Kathleen Armitage, a physiatrist, and her report, dated October 17, 2013, is Tab 3 in Exhibit 2. Dr. Armitage disagrees with some of the diagnoses by the physiotherapist and includes two paragraphs to the effect that the Applicant needs to have instruction to regain ownership of his physical status by active participation in a recreation facility with well and motivated individuals. She does not find the treatment plan proposed to be reasonable and necessary, but recommends some means of encouraging active participation in a six month gym membership. She also agrees that some positive direction and programing is needed and that he is capable of returning to functioning within his family, community and society.

She finds:

[The Applicant] has identified as being a victim in my opinion that could be challenged in terms of emphasizing his positive findings rather than focusing on his limitations which at this time seem minor.⁵

Leaving aside the difficult grammatical structure of this sentence,⁶ I am unable to rely on this assessor’s opinion.

As noted above, the consensus now is that the Applicant’s difficulties are anything but minor. I also note contradictory statements of fact in the report concerning the essential elements of the injuries suffered. Dr. Armitage states at page 3 of her report that “No fractures were identified”, but two paragraphs later she notes that “an undisplaced bone fracture in the left frontal portion of his skull” and “displaced fractures through the left orbital roof and other aspects of the orbital walls and rims of the left eye orbit” were observed in a CT scan. She also references a CT scan in the 6th paragraph on the same page concerning whether or not there was “reliable evidence for the diagnosis of post-traumatic stress disorder and MDD”.

I also note the considerable gap between the date of the assessment and the date of the report. The reference in her analysis to the psychiatric report on page 7 of her report⁷ is particularly problematic. She puts forward her conclusions that she agrees with the refusal of the treatment plan proposing “costly therapy… at Sierra Tuscan (sic) facility” with no justification for her commenting on a psychiatric diagnosis.

The purpose of the treatment plan proposed was to return the Applicant to activities of normal living and pre-accident work activities by pain reduction, increased range of motion and increase in strength. While I am reluctant to conclude that Dr. Armitage strayed outside her area of expertise in her conclusions on psychiatric treatment because she did not testify, it seems to me that she is blaming the Applicant’s attitude for his difficulties. In my view, the reports of the assessors with expertise in psychiatry and neuropsychology render her views fundamentally unfair and outdated.

I find that the denial of the treatment plan based on Dr. Armitage’s report was not appropriate and the treatment plan should have been approved.

I also find that the treatment plan in issue 1a) ii) dated March 13, 2014⁸ proposed by the same physiotherapist should not have been denied. This was a 2014 treatment plan and AIG relied on Dr. Armitage’s report from 2013 to reject the treatment plan. The timing of this denial is important in that, by this time, AIG had not only the report of Dr. Gerry Young, a neuropsychologist, identifying the significant impairments of this Applicant on an ongoing basis but also the reports of two speech pathologists (one its own assessor) identifying cognitive impairment and other significant issues. Given the weaknesses of Dr. Armitage’s report noted above and the availability of other information which casts doubt on the validity of her conclusions, I reject her opinion as a proper basis for denial and I find that this treatment plan should also have been approved.

Issue 1b) Claim for medical benefits for services from Beverlee C. Melamed & Associates

i) $4,119.27 for occupational therapy and rehabilitation coaching, treatment plan, dated September 9, 2013;⁹

ii) $3,946.01, and not as noted in the Report of Mediator, for occupational therapy and rehabilitation, treatment plan, dated February 18, 2014;¹⁰ and

iii) $5,225.97 for a gym membership, cognitive and learning therapy and motor function therapy, treatment plan, dated July 24, 2014¹¹

These medical benefits were denied in part on the basis of reports by Ms. Nanisa Kazim, dated November 27, 2013¹² and November 4, 2014.¹³ In the report, dated November 27, 2013, Ms. Kazim agrees that additional treatment by an occupational therapist may benefit the Applicant but Ms. Kazim only recommends approval of a limited number of the treatment sessions requested for approval. At page 7 of the report, Ms. Kazim finds:

From an occupational therapy perspective, at this time, 4 one-hour sessions are recommended with an Occupational Therapist and 4 two-hour sessions are recommended with a Rehabilitation Coach. These sessions have been recommended to provide continuity with the treatment that the [Applicant] is currently receiving. Within the medical file, both the attending Occupational Therapist and Rehabilitation Coach have reported that it is difficult to keep the [Applicant] engaged and progress has been slow and incremental. Therefore the number of sessions recommended at this time should be conservative compared to what was originally proposed in the OCF-18 under review. However, these sessions can be reassessed upon completion to evaluate if the [Applicant] continues to benefit from such intervention. As well, it should be determined if [the Applicant] wishes to continue with such intervention. (emphasis added)

The difficulty with this approach is that Ms. Kazim is not the treating health care provider. The Applicant cannot call up Ms. Kazim and get another approval. This situation is not comparable to a refill on a prescription where a treating physician is trying a course of treatment to see if there is success to justify continuing the treatment. To get the additional treatments would require another treatment plan, consideration by AIG, a decision by AIG to refer the treatment plan back to this assessor, etc. This process is not timely and does not provide for the continuity of treatment that Ms. Kazim says is to be achieved. The treatment plan contemplated a range in the number of treatments, a clear sign that the treatment provider would go cautiously. I find that the treatment plan, dated September 9, 2013, in its entirety was reasonable and necessary and not properly denied by AIG.

With respect to the treatment plan, dated February 18, 2014, Ms. Kazim produced a second report dated November 4, 2014,¹⁴ some nine months after the treatment plan was submitted. Ms. Kazim recommended partial approval for a gym membership renewal to assist the Applicant because he “does demonstrate limitations in fatigue and endurance as well as notable ratings of pain severity and interference with ADLs”. Ms. Kazim refuses to recommend the requested vocational assessment, job/volunteer placement coaching or cognitive behavioural therapy recommended until the Applicant can be assessed by a neuropsychiatrist.¹⁵

Again the chronology of reports and the availability of expert opinion on the Applicant’s cognitive impairments are important. The reports of Dr. Young and of Dr. Connell have been available for at least a year. The reports of the speech pathologists (See Issue 1c)) have also been available for some time. I find that the denial of the treatment plan was not appropriate, given all the information that AIG had in its file from both the Applicant’s consultants and its own assessors. The treatment plan proposing vocational assessment and other therapies directed to returning the Applicant to suitable work was reasonable and necessary, and there was no reason for further delay, even if AIG was not in receipt of its own neuropsychologist’s report.

Issue 1c) Claim for medical benefits for $6,915.52 for speech language therapy provided Michelle Cohen & Associates, treatment plan, dated October 4, 2013¹⁶

The treatment plan proposes a course of treatment with a speech pathologist “to improve language and cognitive communication deficits, in order to allow [the Applicant] to function successfully in daily activities.”¹⁷ The speech therapist will work co-operatively with the occupational therapist. The comments set out on page 6 of 6 are particularly relevant:

Comments from Part 9A as follows:

1. To improve attention and concentration with maximum support. 2) To improve recall of spoken and written information with maximum support. 3) To improve listening comprehension skills with maximum support. 4) To improve reading comprehension with moderate support. 5) To improve executive function skills with moderate support. 6) to monitor for functional difficulties in written expression. 7) To collaborate with the team, to ensure carryover of strategies across disciplines.

AIG refused to approve the treatment plan and sent the Applicant to Jennifer Peacock to be assessed. Ms. Peacock produced a 24 page report, dated December 9, 2013.¹⁸ She concluded that:

At this point in his recovery, intervention activities should be highly functional and focus on providing [the Applicant] with strategies for coping with his residual deficits in the context of daily living. Unfortunately, [the Applicant] stated that he did not believe speech-language pathology intervention would be of benefit to him and he indicated that he was not interested in receiving this support.

She found as a result of her assessment:

…significant impairments across a range of cognitive communication domains that are considered to have resulted from the traumatic brain injury [the Applicant] sustained in the subject motor vehicle accident. He would be expected to benefit from speech language pathology intervention aimed at providing him with strategies for coping with his residual impairments in the context of his daily life, provided he was motivated to participate in such treatment activities…As speech language intervention is a form of behavioural intervention, clients must be motivated to participate to the best of their ability in order to benefit from this programming… In the event that Mr. Grewal develops an interest in receiving speech-language pathology intervention, the proposed treatment plan should be reconsidered.

This treatment plan is particularly important in view of AIG’s position that I should draw an adverse inference from the failure of the Applicant to testify in this proceeding. I find that the treatment plan was reasonable and necessary. In my view, putting the Applicant through the time and trouble of putting forward another treatment plan when he decides that he wants to undergo this treatment is not appropriate, given the cognitive impairments he has. Insurers insist on objective evidence of the need for treatment and that exists in this case, both from the treatment provider and from the Insurer’s assessor. The reason that the treatment was not found to be reasonable and necessary is the subjective view of an Applicant suffering from a traumatic brain injury. He is not the first patient to be cautious, if not skeptical and reluctant, to follow the advice of his health care provider. The issue for me is not his caution or reluctance or unwillingness, but whether or not the treatment proposed is reasonable and necessary, given his impairments. It may be that the Applicant is never willing to undergo this treatment but, unless the treatment plan is approved, he will not even have the chance to change his mind and follow the good advice he has received.

Issue 1d) Treatment Plan of Dr. Stephen Connell, dated January 11, 2015 for $56,600.00

As noted on page 3 of this decision, there was a previous Arbitration Hearing with respect to claims for benefits for the Applicant. One of the issues in the previous Arbitration Hearing was a treatment plan proposed in 2012 by Dr. Connell in the amount of $56,600.00 for mental health therapy at a facility in the United States called Sierra Tucson (“2012 treatment plan”). In response to that proposed treatment plan, the Applicant was assessed by Dr. Kilian Walsh, a psychiatrist, who did not agree that the treatment plan was reasonable and necessary.

Arbitrator Feldman in that proceeding made the following findings relevant to this proceeding:

Dr. Walsh and other assessors have been looking for consistent and valid test results before deciding on an appropriate course of treatment. Dr. Walsh recommended an assessment by a neuropsychiatrist at one of the teaching hospitals’ Acquired Brain Injury Programs. This seems to me to be a reasonable proposal.

I accept the opinion of Dr. Walsh that, before further, extensive treatment such as that proposed by Dr. Connell be undertaken, it is crucial to obtain current, valid neuropsychological test results for the Applicant. Once reliable results from such an assessment are obtained, the Applicant is free to submit a new treatment plan to the Insurer for whatever treatment his expert(s) deems to be reasonable and necessary.¹⁹ (emphasis added)

In fact, at the time of the Arbitration Hearing before Arbitrator Feldman, there was such a report²⁰ but its admissibility in evidence was challenged successfully by AIG for want of compliance with disclosure timing requirements under the DRPC.²¹ The Young Report was therefore not before Arbitrator Feldman when he arrived at his award.

In the months following April 2013, the Applicant and his representatives sought to address the lack of treatment approved by AIG. As noted above, Ms. Melamed, as case manager, proposed a number of treatment plans and the issue of the proposed treatment under Dr. Connell’s treatment plan rejected by Arbitrator Feldman was pursued. The process of application for mediation for the 2012 treatment plan was begun again, but in 2014, Arbitrator Ben Drory, in his capacity as Pre-Hearing Arbitrator, in an email to counsel dated January 6, 2015,²² indicated that the passage of time since the 2012 treatment plan would make disputing it statute barred. He indicated there would be no objection to a treatment plan in the same substance as that rejected, based on the cited material above from Arbitrator Feldman’s decision, but that it should be a new treatment plan.

Therefore the treatment plan before me is dated January 11, 2015²³ and is proposed by Dr. Connell, as was the 2012 treatment plan.²⁴ It requests treatment for Post-Traumatic Stress Disorder, “Postconcussional” (sic) Syndrome and specific phobias which affect the Applicant’s employment and activities of a normal life. Dr. Connell testified that the Applicant suffers from chronic pain as well as depression and anxiety. The January 2015 treatment plan will provide “Therapy, mental health” for a cost of $56,500.00 with the purpose of allowing the Applicant to return to a normal life. The Applicant signed the January 2015 treatment plan and Dr. Connell provided a Supplementary Psychiatric Report, dated January 27, 2015²⁵ (“January 2015 SPR”) and a further such report, dated April 7, 2015²⁶ (“April 2015 SPR”) in support of the treatment, as well as information from Sierra Tucson.

After submission of the January 2015 treatment plan and the January 2015 SPR, AIG arranged for a further assessment by Dr. Walsh, the psychiatrist whose evidence was referred to in the portions of Grewal and AIG referred to above. Dr. Walsh’s report is included in Exhibit 1 at Tab 16. Dr. Walsh concluded that the Applicant suffers from a Major Neurocognitive Disorder (associated with Traumatic Brain Injury) and Adjustment Disorder with Mixed Anxiety and Depressed Mood. He concludes that the treatment plan proposed is not reasonable and necessary from a psychiatric perspective but he notes that the Applicant:

has made some progress with respect to his depressive and anxiety-based symptomology over time and I believe that he should be able to make further progress in that regard from being treated within an appropriate Acquired Brain Injury Program.²⁷

Dr. Walsh referred to and relied on a neuropsychological assessment conducted on February 19 and 20, 2015 by Dr. K. Lawson.²⁸ On page 7 of the Walsh 2015 report, Dr. Walsh wrote as follows:

Dr. K. Lawson performed a neuropsychological assessment on February 19 and 20, 2015 and submitted a report dated March 9, 2015. I performed a psychiatric assessment on February 11, 2015 and delayed finalizing my report as the results of Dr. Lawson’s assessment clearly would potentially have a significant impact, from a diagnostic perspective. Dr. Lawson reached a DSM-5 diagnosis of ‘Major Neurocognitive Disorder (associated with a Traumatic Brain Injury).’ He noted that ‘The differential diagnosis is Mild Neurocognitive Disorder.’ He stated that from a neuropsychological perspective, [the Applicant’s] ‘current cognitive difficulties will make it more difficult to participate in psychological treatment, although they do not preclude it. However, please also note that in my clinical experience, issues of comorbid diagnoses (i.e. psychological distress and TBI as exhibited by this person) can be effectively addressed by treatment settings in Toronto. In my clinical experience there are rehabilitation professionals and programs with expertise in addressing the difficulties exhibited by [the Applicant] in both private and hospital based settings in the Toronto area. I defer final determination regarding the reasonableness and necessity of this treatment plan to Dr. Walsh, Psychiatrist, who is also addressing this OCF-18.’ (emphasis added)

Dr. Walsh’s recommendation in 2015 was that the results of all the findings of Dr. Connell, as well as Dr. Lawson and his own, should be submitted to the Acquired Brain Injury Program at Halton Hills, or to one of the Toronto hospitals’ Acquired Brain Injury Programs. He was not clear on whether or not the Applicant had been seeing a psychiatrist every three or four months for counselling and medication “as noted by Dr. Lawson in his report”²⁹ and he recommended that AIG should get a list of all the treatment providers and all the medications “before I comment on that issue”.

Also, Dr. Walsh echoed Dr. Lawson’s comments on the availability of appropriate treatment in Toronto.³⁰

In addition to the conclusions cited by Dr. Walsh in his report, Dr. Lawson also noted that it is conventionally accepted that neurocognitive recovery is complete at two years post-accident. Cognitive rehabilitation beyond this point is not directed at reactivating the brain but can be helpful in providing compensatory strategies to help with the permanent cognitive deficits.³¹

In brief, the issue raised in this proceeding with respect to this treatment plan is whether or not it is necessary and reasonable to send the Applicant to the United States to a treatment facility identified by Dr. Connell as having the expertise to treat the comorbid diagnoses of Post- Traumatic Stress Disorder, psychiatric issues (depression and anxiety), chronic pain and traumatic brain injury causing cognitive difficulties, or should the search be confined to local facilities.

The Applicant provided evidence through Dr. Connell and the case manager, Ms. Melamed, both of whom provided written reports. In those reports, included in Exhibit 1, the witnesses outlined the various alternative programs available in the Greater Toronto Area through the teaching hospitals and elsewhere. In her July 2013 report, Ms. Melamed reported that she had been in touch with the very program that Dr. Walsh specifically identified and indicated that the Applicant was to attend for a two to three month trial period. Ms. Melamed reported again in her March 2014 report on the status of the availability of the program and indicated that he was still waiting for an intake appointment. In her October 27, 2015 report, she recommended a different program, a residential program in a different facility than Halton Hills or Sierra Tucson.³² In her evidence, she testified that none of the programs that she had contacted had agreed to take on the Applicant as a patient as of the date of the Hearing.

In addition, Ms. Melamed testified that she had gone to the St. Michael’s Hospital Acquired Brain Injury Program to get treatment for the Applicant, and he had been rejected because of the comorbid diagnoses. With respect to the Halton Hills program referred to by Dr. Walsh, Ms. Melamed testified that the Applicant is still on the waiting list for Halton Hills in December 2015. Dr. Connell was clear that he had looked at the available programs and none had the range of the programs he recommended at a facility known as Sierra Tucson.

AIG provided no such evidence of specific programs available, nor any reasonable timeline for access. I note that at the outset of the Hearing, Mr. Blouin indicated he wished to call Dr. Walsh to testify but Mr. Burns objected on the grounds that there had been no witness list provided by Mr. Blouin. I refused to waive the requirement of the witness list under the DRPC, given that Mr. Blouin described the lack of a witness list as an oversight and given that there were lots of reminders available in the course of the proceedings of this procedural step.

In any event, nothing in the reports provided by Dr. Lawson or Dr. Walsh contained the detailed analysis of available programs that was provided by Ms. Melamed and Dr. Connell, and any evidence about such programs would have been new evidence not disclosed in the reports.

AIG has had ample time (since at least the Fall of 2013) to deal with this issue, given that they had the Young 2013 Report which filled the gap identified by Arbitrator Feldman. It would have been simple for AIG to request details from Dr. Walsh and Dr. Lawson as to the available programs, such as the list provided in Dr. Connell’s April 2015 SPR or in Ms. Melamed’s reports.

In determining the weight to be given to Dr. Walsh’s recommendations, I note that Ms. Melamed has provided detailed lists of service providers in her reports, Tabs 10, A to D inclusive,³³ but Dr. Walsh does not seem to have noted that information or the recommendations contained in her reports. I note specifically that Ms. Melamed included recommendations for psychiatric treatment supported by one Dr. Dhillon, the Applicant’s family doctor.³⁴

I have objective evidence of Dr. Connell that the treatment plan is reasonable and necessary, supported by Ms. Melamed. Dr. Walsh is asking for more time to consider and gather information and search out a program. That process might well be appropriate where he is the treating psychiatrist but, in this case, he is only engaged when and if AIG asks for his recommendations. The Applicant cannot initiate that process without going through a whole other treatment plan process of submission and rejection. The reports of Dr. Lawson and Dr. Walsh are predicated on an ongoing iterative process about treatment for this Applicant, but that is not the process as followed by AIG and as set out for applicants trying to get treatment approved under the Schedule.

AIG asks me to draw an adverse inference from the Applicant’s failure to testify. I have reviewed Arbitrator Feldman’s decision in which he noted that the inconsistencies in the Applicant’s statements to assessors and his inability, broadly speaking, to testify effectively in defence of the claims for benefits. In essence, the Applicant was not believed by Arbitrator Feldman. Since then, AIG has received the reports referred to above documenting the impairments. In my view, AIG has been reluctant to respond to the full implications of the diagnoses that its own assessors have given. The treatment plan proposed by the speech pathologist (Issue 1 c)) contained important insight into the challenges facing the Applicant that would be particularly difficult in the context of a witness giving evidence. She proposed treatment to improve:

• attention and concentration,

• recall of spoken and written information,

• listening comprehension skills, and

• reading comprehension skills.

There are few elements more important than a witness being able to focus and concentrate for an extended period during his evidence, to have good recall of spoken and written information and to have good listening comprehension skills and reading comprehension skills. The evidence contained in the reports of Ms. Melamed and others confirm that the Applicant lacks those important skills. In my view, given the impairments of the Applicant, it would not be helpful to me to have his evidence. The Applicant is limited by his impaired executive function from understanding fully the implications, outcomes and nuances of what he is asked. I refuse to draw an adverse inference from the Applicant’s failure to testify.

AIG also relies on the reluctance of the Applicant to undergo this treatment in the United States in a residential program which will necessitate his being away from home and his family. There is ample evidence in the case manager’s reports of the Applicant’s anxiety and dependence on other family members and friends to live through his day. His children are young. He himself is a young man. His diffidence is understandable, but Dr. Connell testified that the Applicant had signed the treatment plan and understood the importance of going ahead with it.

I note that Insurers frequently refuse treatment plans that applicants want to undergo, demanding objective evidence of the treatment’s reasonableness and necessity. This Applicant has been diagnosed with significant cognitive impairment and limitations in his executive function. In face of objective evidence in support of the treatment plan, the Insurer here relies on the subjective views of a person with these impairments to deny the treatment plan, while so many Insurers deny treatment plans by refusing to accept the subjective views of applicants with no brain injury or cognitive impairment.

I find the treatment plan is reasonable and necessary. I accept that Ms. Melamed and Dr. Connell have used their best efforts to identify resources appropriate for this Applicant and have been unsuccessful in obtaining treatment here through whatever resources might be available. I accept their evidence that the Sierra Tucson program treating comorbid diagnoses is not available locally. I reject the wisdom of any further delays in this process as being reasonable or necessary for the effective treatment of this young man.

EXPENSES:

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 DRPC.

February 16, 2016

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 56 FSCO A14-003045

BETWEEN:

BHUPINDER SINGH GREWAL Applicant

and

AIG COMMERCIAL INSURANCE COMPANY OF CANADA Insurer

ARBITRATION ORDER

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

1. The Applicant is entitled to receive medical benefits as follows:

a) For services provided by Faith Physiotherapy:

i) $2,144.26 for physiotherapy, treatment plan, dated July 23, 2013;

ii) $1,682.90 for assessment and multiple regions therapy, treatment plan, dated March 13, 2014;

b) For services provided by Beverlee C. Melamed & Associates:

i) $4,119.27 for occupational therapy and rehabilitation coaching, treatment plan, dated September 9, 2013;

ii) $6,946.01, and not as noted in the Report of Mediator, for occupational therapy and rehabilitation, treatment plan, dated February 18, 2014; and

iii) $5,225.97 for a gym membership, cognitive and learning therapy and motor function therapy, treatment plan, dated July 24, 2014;

c) $6,915.52 for speech language therapy provided by Michelle Cohen & Associates, treatment plan, dated October 4, 2013;

d) $56,600 for multi-disciplinary rehabilitation treatment provided by Sierra Tucson (Arizona), treatment plan, dated January 11, 2015.

2. The Applicant is entitled to interest on overdue payment of benefits at 2% per annum.

3. 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.

February 16, 2016

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Grewal and AIG Commercial Insurance Company of Canada, FSCO A09-002980, Arbitrator Feldman, (“Grewal and AIG”).
3. 3Exhibit 1, Tab 2(a), treatment plan proposed by Ciby Kuriakose for physiotherapy.
4. 4Exhibit 1, Tab 2(d), treatment plan proposed by Ciby Kuriakose for physiotherapy.
5. 5Exhibit 2, Tab 3, page 6.
6. 6This is not the only grammatical issue in the material produced by AIG. The letters from the adjuster refusing the treatment frequently contain both spelling and grammatical errors that create ambiguity and would make for challenging reading for an Applicant not fully fluent in English.
7. 7Exhibit 2, Tab 3, page 7. Dr. Armitage does not give specifics as to the author of the report she is referring to but she makes reference to the date of September 2012 and the request for $56,600 for mental health therapy. I assume the reference is to Dr. Connell’s reports in Exhibit 1, Tab 7.
8. 8Exhibit 2, Tab 14; also Exhibit 1, Tab 2 (d).
9. 9Exhibit 1, Tab 2(c), treatment plan proposed by Berverlee C. Melamed.
10. 10Exhibit 1, Tab 2(e), treatment plan proposed by Romy Berger.
11. 11Exhibit 1, Tab 2(e), treatment plan proposed by Samantha Forde.
12. 12Exhibit 2, Tab 5.
13. 13Exhibit 2, Tab 12.
14. 14Exhibit 2, Tab 12.
15. 15Exhibit 2, Tab 12, page 4 of 16.
16. 16Exhibit 2, Tab 7; also, Exhibit 1, Tab 2(b).
17. 17Exhibit 1, Tab 2(b), page 4 of 6.
18. 18Exhibit 2, Tab 9.
19. 19Grewal and AIG at page 29, footnote 13
20. 20Report of Dr. Gerry Young, neuropsychologist, dated September 10, 2013, (“Young Report”) Exhibit 1, Tab 9.
21. 21Grewal and AIG, at page 29, footnote 13.
22. 22Exhibit 1, Tab 6 (“January 2015 treatment plan”).
23. 23Exhibit 1, Tab 1.
24. 24Treatment Plan, dated September 26, 2012, recommended by Dr. Stephen Connell; Grewal v. AIG, pages 27 to 30 (“2012 treatment plan”).
25. 25Exhibit 1, Tab 7G.
26. 26Exhibit 1, Tab 7H.
27. 27Exhibit 1, Tab 16, Report of Dr. Kilian Walsh, dated March 23, 2015 (“Walsh 2015 Report”), page 9.
28. 28Exhibit 1, Tab 15, Report of Dr. Kerry Lawson, dated March 9, 2015 (“Lawson 2015 Report”).
29. 29Walsh 2015 Report at page 8.
30. 30Walsh 2015 Report at page 9.
31. 31Lawson 2015 Report, page 19.
32. 32October 2015 Melamed Report, 4th page, 7th recommendation.
33. 33Melamed 2013 Report, pages 3 and 4 of 8, Exhibit 1, Tab 10B; Melamed 2014 Report, 3rd page under Summary of Recommendations, Exhibit 1, Tab 10C.
34. 34Melamed 2105 Report, 4th page, 6th and 8th recommendations, Exhibit 1, Tab 10D.