Amir Salman v. Allstate Insurance Company of Canada, 2016 ONFSCDRS 67

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 67

FSCO A11-000956

BETWEEN:

AMIR SALMAN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: September 15-18, 22-24 and October 1, 2014, and February 4 and 9-11, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions received February 18, March 17, and July 14, 21 and 29, 2015

Appearances: Michael L. Bennett for Mr. Salman

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Amir Salman, was injured in a motor vehicle accident on January 30, 2008. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate denied certain of Mr. Salman’s claims. The parties were unable to resolve their disputes through mediation, and Mr. Salman 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. Did Mr. Salman sustain a catastrophic impairment as a result of the accident within the meaning of section 2(1.2)(f) and/or 2(1.2)(g) of the Schedule?

2. Is Mr. Salman entitled to income replacement benefits, from December 15, 2008, onward, at a rate of $400 per week, pursuant to sections 4(1), 5(1) and 5(2) of the Schedule?

3. Is Mr. Salman entitled to attendant care benefits, from October 17, 2011, onward, at a rate of $6,000 per month, pursuant to section 16 of the Schedule?

4. Is Mr. Salman entitled to payments for housekeeping and home maintenance services, from April 24, 2008, onward, at a rate of $100 per week, pursuant to section 22 of the Schedule?

5. Is Mr. Salman entitled to payment for a treatment plan, dated May 25, 2012, prepared by Ms. L. Duffus, in the amount of $17,825.53, pursuant to section 14 of the Schedule?

6. Is Mr. Salman entitled to payment for the cost of the following examinations, pursuant to section 24 of the Schedule?

i. An in-home assessment, by Ms. N. Vuckovic, on October 17, 2011, in the amount of $1,301.54;

ii. A catastrophic impairment assessment, by Dr. L. Gerber, on September 26, 2011, in the amount of $7,800; and

iii. A catastrophic impairment assessment, by Dr. B. Levitt, on April 3, 2014, in an unspecified amount.

7. Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Salman, pursuant to section 282(10) of the Insurance Act?

8. Is Mr. Salman entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

9. Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

1. Mr. Salman sustained a catastrophic impairment as a result of the accident within the meaning of section 2(1.2)(g) of the Schedule.

2. Mr. Salman is entitled to income replacement benefits, from December 15, 2008, onward, at a rate of $400 per week.

3. Mr. Salman is entitled to attendant care benefits, from October 17, 2011, onward, at a rate of $6,000 per month.

4. Mr. Salman is not entitled to payments for housekeeping and home maintenance services.

5. Mr. Salman is entitled to payment for a treatment plan, dated May 25, 2012, prepared by Ms. L. Duffus, in the amount of $17,825.53.

6. Mr. Salman is entitled to payment for the cost of an in-home assessment, by Ms. Vuckovic, on October 17, 2011, in the amount of $1,301.54, but not the catastrophic impairment assessments of Dr. Gerber and Dr. Levitt, dated September 26, 2011 and April 3, 2014, respectively.

7. Allstate is liable to pay a special award, in the amount of $5,000.

8. Mr. Salman is entitled to interest on the benefits ordered to be paid, subject to interest on income replacement benefits only being payable from February 4, 2011.

9. If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

1) Mr. Salman’s Claim of Catastrophic Impairment

Mr. Salman maintains that he was healthy and active before the motor vehicle accident, and that, as a result of the accident, he suffered a catastrophic impairment, to the point that he now leads a significantly diminished life and is largely incapable of taking care of himself. The Insurer maintains that neither the accident nor Mr. Salman’s injuries were particularly serious and that Mr. Salman’s claim of catastrophic impairment is significantly undermined by his lack of credibility, as it relates both to the nature of his alleged injuries and the extent to which those injuries might have affected his day-to-day functioning.

Mr. Salman claims that he suffered a catastrophic impairment within the meaning of section 2(1.2)(g) of the Schedule. Section 2(1.2)(g) defines catastrophic impairment as “an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.” The AMA Guides indicate that the assessment of an impairment due to mental or behavioural disorder is to be done in relation to four areas of a person’s functioning: (1) activities of daily living, (2) social functioning, (3) concentration, persistence and pace, and (4) deterioration or decompensation in work or work-like settings. In Pastore v. Aviva Canada Inc. (2012), 2012 ONCA 642, 112 O.R. (3d) 523, the Court of Appeal held that it was sufficient for a person to establish at least marked impairment in only one of these areas to be found to have suffered a catastrophic impairment due to mental or behavioural disorder. The Court also indicated that the determination of catastrophic impairment due to mental or behavioural disorder involves a three-step process, namely, the diagnosis of any mental disorders, the identification of the impact of those disorders on a person’s daily life, and the assessment of the severity of those limitations in relation to the four categories of functioning set out in the AMA Guides.

I find that Mr. Salman suffered significant psycho-emotional injuries as a result of the accident, that these injuries have profoundly affected the quality of his life, and that his impairment is marked in at least one of the four categories of functioning. I, therefore, find that he suffered a catastrophic impairment within the meaning of section 2(1.2)(g) of the Schedule.

Mr. Salman also raised the issue of catastrophic impairment under section 2(1.2)(f) of the Schedule, which defines catastrophic impairment as “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.” The Insurer questioned my jurisdiction to consider the issue of catastrophic impairment under section 2(1.2)(f) of the Schedule, on the basis that Mr. Salman had not properly claimed catastrophic impairment under this provision. In light of my conclusion that Mr. Salman satisfies the criteria of catastrophic impairment under section 2(1.2)(g) of the Schedule, I find it unnecessary to consider Mr. Salman’s alternate claim, and decline to do so.

In order to determine the extent of Mr. Salman’s disability, it is first necessary to understand the nature of his accident and injuries.

(i) Mr. Salman’s Accident and Injuries

Mr. Salman was injured when the car he was driving struck another vehicle that had pulled out from a driveway into the lane in which he was driving. Mr. Salman testified that he was not physically hurt in the accident, but was in shock. He said that he called the police, who attended the scene along with a towing service. Police reports indicate that there was approximately $10,000 damage to Mr. Salman’s car and approximately $7,000 damage to the car he hit. Mr. Salman, and his friend, Daniel Joseph, who had been a passenger in the car, were driven home in the tow truck. Mr. Salman had also called the Insurer, who arranged for a rental car. The rental car was delivered to Mr. Salman’s home (a condominium not far from the accident scene) and Mr. Salman was able to drive his friend home. Mr. Salman said that he returned to his apartment, where he fell asleep for a few hours and, upon waking, felt significant pain in his neck, back, shoulder and knee, as if he had been “hit by a truck.”

Mr. Joseph (who had been Mr. Salman’s friend at the time of the accident, and who testified via video-conference from Israel, where he had moved in May 2008), said that, in the accident, Mr. Salman tried to “hit the brakes” before colliding with the other car, that there was a “big boom” upon impact, and that the front of the car was “completely crashed”, with the hood dented to the point that he could not see in front of the car. Mr. Joseph said that he felt pain in his back immediately after the accident, and that he was “in shock” and “couldn’t even leave the car.” He said that Mr. Salman was able to leave the car after a few minutes, was shocked and shaking, but was able to call the police and insurance company. Mr. Joseph said that he experienced back pain for two weeks following the accident, but that it then resolved.

Mr. Salman saw his family physician, Dr. R. Blumenfeld, the following day, who diagnosed neck, right shoulder and back strain, as well as knee strains and/or tears. Dr. Blumenfeld prescribed pain medication and referred Mr. Salman for physiotherapy and tests. Mr. Salman maintains that he has suffered constant neck and back pain since the accident, as well as headaches, and sensitivity to light, with only temporary relief from medication and physical therapy. His pain radiates to his arms and legs, and he reports difficulty walking more than short distances. He also complains of difficulty sleeping, depression, lack of energy and inability to concentrate.

Mr. Salman underwent numerous assessments following the accident, which differed as to the nature and severity of his injuries.

On September 13, 2008, Dr. V. Kleiman, a psychologist who assessed Mr. Salman at the request of his previous counsel, reported that, as a result of the accident, Mr. Salman’s presentation was “consistent with the DSM-IV criteria for a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.”

On August 6, 2009, Dr. H. Sandhu, a physician at the Headache & Pain Relief Centre, to whom Mr. Salman had been referred by Dr. Blumenfeld, diagnosed Mr. Salman as suffering from “chronic post-traumatic pain secondary to his motor vehicle accident.”

On March 16, 2010, Dr. L. Steiner, a psychologist who saw Mr. Salman to determine his treatment needs, reported that, as a result of the accident, Mr. Salman suffered from “Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, Chronic” and “Major Depressive Disorder, Single Episode, Moderate.”

On August 26, 2010, Dr. K. McCutcheon, a psychologist who saw Mr. Salman at the request of the Insurer, reported that, “in spite of the possibility of symptom embellishment, to give him the benefit of the doubt, Mr. Salman appears to be experiencing some depressive and anxious symptomatology in the context of his ongoing pain and physical concerns….” and “would appear to meet the criteria for a DSM-IV-TR Adjustment Disorder with Mixed Anxiety and a Depressed Mood.”

On April 20, 2011, Dr. A. Tountas, an orthopaedic surgeon to whom Dr. I. Wilderman had referred Mr. Salman (Mr. Salman having been referred to Dr. Wilderman by Dr. Blumenfeld), reported that Mr. Salman had “very obvious pain behaviour” and was “not cooperating at all with the examination.” Dr. Tountas concluded that there was “nothing seriously wrong with him”, he had “significant functional overlay” and he should “carry on normally and continue physical modalities.”

On September 26, 2011, Dr. L. Gerber, a psychiatrist who had seen Mr. Salman at the request of his previous counsel, conducted a catastrophic impairment assessment of Mr. Salman, and found that, as a result of the accident, Mr. Salman suffered from a Chronic Major Depressive Disorder, a Chronic Pain Disorder with Both Psychological Factors and a General Medical Condition.

On October 21, 2011, Dr. S. Patmanidis, a psychiatrist to whom Dr. Blumenfeld had referred Mr. Salman, reported that Mr. Salman suffered from “post-traumatic major depression superimposed on his chronic pain condition” and “marked decrease in stress tolerance and self-esteem” as a result of the motor vehicle accident, and “marked impairment of functioning over the last 3 years with a GAF score of 45 to 50.”

On December 13 and 21, 2011, Mr. Salman underwent a multidisciplinary catastrophic impairment assessment at the request of the Insurer. The principal assessor, Dr. L. Reznek, a psychiatrist, found that the “presence of malingering undermines the conclusion that Mr. Salman is suffering from any psychiatric disorder” and that he was not suffering from a Major Depressive Disorder, Adjustment Disorder, Post-Traumatic Stress Disorder or Pain Disorder.

On May 31, 2012, Dr. H. Rockman, a psychologist who assessed Mr. Salman at the request of his counsel, reported that Mr. Salman suffered from Major Depressive Disorder without psychotic features, Posttraumatic Stress Disorder, Pain Disorder associated with General Medical Condition and Psychological Factors, and Opioid Related Disorder.

On January 10, 2013, Dr. I. Park, a neurologist at Dr. Wilderman’s medical clinic, reported that Mr. Salman “probably suffers from a chronic pain syndrome and chronic migraines.”

On April 3, 2014, Dr. B. Levitt, a clinical and rehabilitation psychologist who assessed Mr. Salman at the request of his counsel, reported that as a result of the accident, Mr. Salman suffered a “Pain Disorder associated with both a general medical condition and psychological factors; Major Depression, severe, chronic, without psychotic features; and a Posttraumatic Stress Disorder (pre-existing, aggravated by MVA).”

The issue of whether Mr. Salman’s injuries constitute a catastrophic impairment within the meaning of the Schedule, and whether he is entitled to the specific benefits claimed, must be considered in the context of his pre- and post-accident medical and social history.

(ii) Mr. Salman’s Pre- and Post-accident Medical and Social History

Mr. Salman lives on his own in a condominium apartment. He was born in Israel, the youngest of eight children. His father left the family when he was thirteen years old. He immigrated to Canada in 1991, when he was 19 years old. He has been married three times, each for 2-3 years, in 1991, 1996 and 2003. He testified that these relationships ended because he did not share his wives’ interests and goals.

Mr. Salman stated that he suffered epilepsy as a child, which resolved when he was a teenager, but had seizures in 1995 (after an illness while on vacation in Mexico) which he has not had since. He testified that he suffered a back injury at work in 1992, which resolved within a year. His pre-accident medical records refer to ongoing back pain preceding this injury, and to back strains and/or pain in 1993, 1995, 1996 and 2002. There are no subsequent references to back pain, and no evidence of Mr. Salman having suffered ongoing back, or other musculo-skeletal, pain prior to the accident. On November 27, 2009, Dr. Blumenfeld reported that there were no pre-accident conditions affecting Mr. Salman’s ability to perform his usual tasks after the accident.

Mr. Salman returned to Israel in 1996, where he opened a restaurant. He testified that in 2001, in the context of a period of more frequent terrorist attacks within Israel, he experienced a suicide bombing outside his restaurant, where he saw people, including children, grievously injured, and he himself was injured by broken glass from his shop window. He was severely traumatized by this incident and received medical treatment as a result. He became highly anxious and tearful at the hearing when recounting this episode. Mr. Salman subsequently returned to Canada, where he worked for two of his brothers who had also immigrated to Canada. Mr. Salman testified that he was much less anxious at this time, and had a full life, working, socializing, playing music and participating in sports. In the year prior to the accident, he worked at his brother Amnon’s shipping company, Gans Trucking, as a truck driver. He was responsible for loading, delivering and unloading various products.

A number of lay witnesses gave evidence at the hearing about Mr. Salman’s pre- and post-accident life. Joshua Drury, a friend of Mr. Salman, testified that, prior to the accident, he often saw Mr. Salman working at his brother’s warehouse, loading trucks and driving a cube van. He said that Mr. Salman was extremely active, lively, well-groomed and social, and had a meticulously clean apartment where he would often entertain. Mr. Drury said that, since the accident, he has not seen Mr. Salman drive a truck or be active and social, he is depressed, and the state of his apartment, as well as his mood and appearance, have deteriorated significantly. Mr. Drury testified that he had heard about a more recent motor vehicle accident in which Mr. Salman was involved, but that it was apparently minor, and that the first accident was what “really shook [him] up.” In his view, Mr. Salman could no longer live independently.

Another friend of Mr. Salman, Ronen Schneider, confirmed Mr. Drury’s description of Mr. Salman’s pre-accident condition, and said that, right after the accident, Mr. Salman was “in a lot of pain”, “stressed out” and “not the same.” Mr. Schneider said that Mr. Salman has gotten worse since the accident, “got old so quick” and is “decrepit.” He described Mr. Salman’s apartment as now being a “house of horrors.” He said that Mr. Salman is “totally depressed” and really only leaves his apartment for doctors’ appointments and similar activities.

Another friend, Gideon Zur, testified that Mr. Salman had been a “clean freak” before the accident, noting that, if someone dropped a crumb on the floor of his apartment, he would give them “some Windex and a tissue” to clean it up. Mr. Zur said that, after the accident, Mr. Salman became depressed, unclean and lethargic.

Peter Taccogna, a neighbour, testified that Mr. Salman was well-groomed and confident before the accident, entertaining in his apartment and working out in the building’s gym. Mr. Taccogna said that, after the accident, Mr. Salman “seemed roughed up”, could not move as well, and did not seem happy. Mr. Taccogna said that he sees Mr. Salman approximately once a week, that, since the accident, he has been getting worse, in his personal appearance, mood and mobility, and in the state of his apartment. Mr. Taccogna testified that Mr. Salman “struggles with simple things”, “seems flustered”, and, for example, is “all over the place” and is “not really paying attention” while watching television. Mr. Taccogna said that he has assisted Mr. Salman in picking up his groceries, taking out his garbage and walking his dog. He noted that Mr. Salman “just eats packaged stuff” and once tried to make french fries, but that they all fell on to the bottom of the oven, creating an unsafe condition.

Daniel Joseph, the passenger in the car at the time of the accident, said that Mr. Salman was in real pain after the accident and was not living the same life as before. Mr. Joseph said he only saw Mr. Salman a few times in the months after the accident (and before he, himself, moved to Israel), and that Mr. Salman no longer wanted to go out socially.

As noted, Mr. Salman maintains that he has suffered constant neck and back pain since the accident, as well as difficulties walking and sleeping, depression, diminished energy and poor concentration, with only temporary relief from medication and physical therapy. On August 6, 2009, Dr. Sandhu reported Mr. Salman as saying that he smokes a gram of marijuana each day to relieve his pain, that he had “mild feelings of depression secondary to his pain”, but did not experience suicidal or homicidal ideation. The same day, Dr. E. Nussbaum, a cardiologist, reported that Mr. Salman had “sleep apnea”, and possibly “nocturnal hypertension.” Mr. Salman testified that he had another motor vehicle accident on October 12, 2010, where he swerved to avoid another car and hit the curb, but maintained that this did not significantly worsen his previous condition. Mr. Salman’s brother, Amnon, testified that the car accident in 2010 was small and did not change Mr. Salman’s condition. Mr. Salman testified that he was in another accident in July 2013, but that this was very minor and that he was not hurt in the incident. He said that his difficulty walking and standing once resulted in his slipping and falling in his bathtub, and that this was frightening because there was no one to help him.

Mr. Salman testified that he has done some travelling since the accident, saying that, with financial help from his family, he was able to go on three brief trips to Las Vegas in 2010, but was accompanied by his cleaning lady the first two trips and a friend the third time to assist him. He said that he went to a cousin’s wedding in Montreal and to New York, but was driven on both trips by his brother. He said that he has gone to Niagara Falls a few times since the accident, sometimes with a friend, but could not recall if he did any of the driving. Amnon Salman said that he gave his brother money to travel to Las Vegas as a change of environment, and that he drove him to New York and Montreal, although his brother continued to have problems on those trips.

Mr. Salman testified that he took various types of pain medication and anti-depressants, but that in April 2012, the Insurer discontinued funding for these, after which he became so distraught that he attempted to commit suicide, by hanging himself in a stairwell of his apartment building. Mr. Salman introduced into evidence a series of photographs, which he said he took to show the burn marks on his neck from his suicide attempt. This incident was corroborated at the hearing by a neighbour of his, Artem Kavarzin, who testified that he found Mr. Salman hanging from a rope in the stairwell, after which he freed Mr. Salman from the rope, and helped him back to his apartment. Mr. Kavarzin stated that Mr. Salman had him swear not to tell anyone about this incident, and that he is now more attentive to Mr. Salman’s state, and tries to be in touch more. Mr. Kavarzin said that he initially met Mr. Salman in the summer of 2009, at which point he noticed him walking and talking slowly, and moving in a strange way. He described Mr. Salman as a lonely and depressed person, who spends most of his time alone. Mr. Salman said that, after his suicide attempt, he began to see Dr. Rockman for support, and continues to be counselled by her. Dr. Rockman testified that, when she first saw Mr. Salman, she observed a “strong scar around his neck that had not healed.”

(iii) Medical Opinions on the Issue of Catastrophic Impairment

Mr. Salman underwent various assessments on the specific issue of whether he met the test of catastrophic impairment under section 2(1.2) of the Schedule.

Dr. Gerber reported as follows:

[Mr. Salman] is substantially disabled from his pre-accident employment and my assessment of him is that he [is] substantially disabled from any employment for which he was previously suited by virtue of education, training, or experience. He can’t work in any capacity. He is also substantially disabled from being able to involve himself in sporting and recreational activities. He is substantially disabled from being able to involve himself in romantic relationships and from being sexually active. He is substantially disabled from being able to complete the housekeeping chores that he could prior to the accident, and he is also partially disabled with regard to self-care activities, given just how long it takes him to do basic things like dressing and showering.

With respect to the four relevant categories, Dr. Gerber found that Mr. Salman was at least moderately impaired in all four categories (namely, activities of daily life, social functioning, concentration, persistence and pace, and adaptation), and markedly impaired in the activities of daily living and in concentration, persistence and pace. Dr. Gerber, therefore, found Mr. Salman to be catastrophically impaired.

Dr. Gerber reported (and testified) that Mr. Salman provided credible evidence of his condition and was not malingering, based on the assessment (which included administering a Rey’s 15-Item Memory Test), the consistency of his subjective reports, and the medical records. Dr. Gerber said that Mr. Salman’s sleep problems appeared to be related not to his sleep apnea, since he had trouble falling asleep, and since he often awoke due to nightmares. Dr. Gerber did not feel that Mr. Salman’s trips to Las Vegas were necessarily relevant, in light of his general pre- and post-accident condition, and the fact that he was accompanied on these trips.

Dr. Reznek reported that, based on inconsistencies in Mr. Salman’s medical reporting, as well as his results on validity testing, he was unable to rely on his reports of post-accident pain and emotional distress. For example, Dr. Reznek reported that Mr. Salman “denied any chronic back pain”, but that the “medical brief indicates that since the early 1990’s, Mr. Salman has suffered from chronic back pain.” Dr. Reznek concluded that, “[g]iven that Mr. Salman is not suffering from any psychiatric disorder, there is no evidence that he has anything but a Class 1 or no impairment in all of [the relevant] domains” and was, therefore, not catastrophically impaired.

Dr. Levitt found that Mr. Salman had a GAF (a global assessment of functioning) of 40, with “marked” impairment in all four of the relevant categories, and, therefore, concluded that Mr. Salman was catastrophically impaired. Dr. Levitt testified that, due to Mr. Salman’s experience of the suicide bombing in Israel, he suffered from post-traumatic stress disorder, which was likely in remission before the accident, but was reactivated by the accident, resulting in his suffering a complete breakdown after the accident. Dr. Levitt said that, although Mr. Salman had a second accident in 2010, he was doing very badly before that time. Dr. Levitt said that Dr. Tountas’ report of a lack of cooperation on Mr. Salman’s part was not an indication that he did not want to be assessed, but that he was in too much pain to participate in the tests (which is, in fact, what Mr. Salman testified). Dr. Levitt testified that Mr. Salman’s openness about the effect the accident has had on his sexual functioning was a “good sign of credibility.” Dr. Levitt also said that “pain patients are often encouraged to get out and travel”, and that he was unable to say if Mr. Salman’s trips were in any way significant to the question of the extent of his disability. Dr. Levitt also said that the fact that Mr. Salman is somewhat active (for example, driving short distances) and is not precluded from doing everything does not mean that he does not suffer a marked impairment in the activities of daily living. Dr. Levitt said that Mr. Salman clearly does not have a normal life.

Dr. Levitt said that Mr. Salman’s level of English proficiency is important to the interpretation of his psychological tests, since he does not fit within the English language group for these tests. Dr. Levitt explained that Mr. Salman’s poor performance on testing (including the validity testing administered) was due to his poor grasp of English, cultural differences, distraction and difficulty concentrating.

Dr. Levitt testified that Dr. Reznek’s findings were inconsistent with the other assessors, and noted that Dr. Reznek incorrectly referred to Mr. Salman having suffered from chronic pain prior to the accident. Dr. Levitt said that Dr. Reznek’s finding that Mr. Salman was not co-operating because he did not mention his pre-accident back injury simply means that Mr. Salman was a poor historian, not being uncooperative. Dr. Levitt was also critical of Dr. Reznek’s use of the SIMS test to determine that Mr. Salman was malingering, because that test was not appropriate for a person like Mr. Salman, who has only Grade 4 English proficiency, and because the SIMS test is not to be used to confirm malingering, and should at least be used in conjunction with the SERS test. Dr. Levitt noted that he had administered the Rey 15-item Memory Test, and that Mr. Salman’s score of 12 out of 15 indicated that he was not malingering.

Dr. Levitt testified that the fact that Mr. Salman may have suffered from sleep apnea did not affect his view that Mr. Salman suffered from an accident-related chronic pain condition, since Mr. Salman’s chronic pain could, in fact, worsen his sleep apnea, and since it was apparent that Mr. Salman’s pain and depression contributed to his sleep disturbance.

Dr. Gerber testified that Dr. Tountas’ finding that Mr. Salman demonstrated “functional overlay” simply meant that the reported symptoms were in excess of what would normally be expected for the general medical condition, but did not mean, as Dr. Tountas found, that there was generally nothing wrong with Mr. Salman. Dr. Gerber disagreed with Dr. Reznek that Mr. Salman’s major depression was not related to his pain, insomnia and fatigue, that the accident did threaten serious bodily injury, and that the fact that Mr. Salman could do some driving after the accident was not determinative of significant ability. Dr. Gerber indicated that Dr. Reznek incorrectly suggested that Mr. Salman’s pre-existing back pain was more than temporary and present up to the time of the accident, and that, while Mr. Salman might have exaggerated his pain symptoms after the accident, this was indicative, not of an intention to deceive, but of the presence of a psychological component to his condition.

Dr. Reznek testified that he felt Mr. Salman understood his questions and had sufficient ability in English to undertake the assessment, but did not, when asked, address Dr. Levitt’s evidence that at least Grade 5 English proficiency was required to attain valid results for the SIMS test Dr. Reznek administered. Dr. Reznek also said that he did not do a SERS test in conjunction with the SIMS test, as advised. Dr. Reznek said that “malingering” constitutes deliberate exaggeration and an intent to deceive, and that the evidence of Mr. Salman’s neighbours (of which he was unaware at the time of his assessment) “d[id] make [him] question” his conclusion of malingering. Dr. Reznek nevertheless said that, although Mr. Salman does have “some real impairment”, he is exaggerating this for gain, and acknowledged that this view was different from that which he expressed in his report. Dr. Reznek said that, while it was significant that Mr. Salman denied any pre-accident back pain, compliance with treatment (which, in Mr. Salman’s case, included several pain injections), as well as a serious suicide attempt, would both be evidence against malingering.

Dr. Rockman reported as follows:

…the obtained results were consistent with ongoing physical issues (i.e., pain) and severe psychological symptomatology…in the form of depressive, anxious, and somatic symptomatology. Although Mr. Salman tended to overstate his difficulties, he is nonetheless experiencing a significant psychological decompensation and is at risk of suicide without extensive and intensive treatment.

Based on the current assessment, file review, and interview results, there is evidence of a pre-existing psychological disorder (PTSD) that makes him pre-disposed to developing extreme reactions to what, to others, would appear to be relatively minor issues. Additionally, the ongoing pain he is experiencing leaves him exhausted and despondent and unable to muster the strength he needs to deal with the re-emergence of his PTSD symptoms.

Mr. Salman is over four years post collision and appears to be struggling with very significant psychological symptomatology. Moreover, his psychological difficulties (including depression, emotional regulation problems, hyperarousal, and pain coping difficulties) contribute to significant impairments in his activities of daily living and social functioning….

Dr. Rockman testified that Mr. Salman is a very vulnerable individual, and very conscientious about attending counselling sessions, which he “hardly ever misses.” Dr. Rockman said that she would “never say someone was malingering because of a [validity] test” and that an assessor must look at a person’s “effort, engagement and consistency” based on the totality of the “testing, interview, file material and collateral information.” She stated that her therapy for Mr. Salman confirmed her initial impression of him. Dr. Rockman testified that Mr. Salman’s driving after the accident did not mean that he did not have post-traumatic stress disorder, only that he was making as much of an effort as he could. She said that she encouraged him to travel, and that the fact that he did take trips does not affect her assessment of the severity of his condition.

(iv) Findings on the Issue of Catastrophic Impairment

(a) Mr. Salman’s Credibility

The validity of Mr. Salman’s claim of catastrophic impairment turns, to a large extent, on the reliability of his evidence, in terms of both his complaints of widespread pain and social withdrawal following the accident, as well as his presentation to the various assessors. While there are some discrepancies in Mr. Salman’s evidence, I find these to be relatively minor, and that, in all of the circumstances, Mr. Salman provided a reliable description of the nature and extent of his accident-related impairments.

I find significant that the vast majority of medical assessors considered Mr. Salman to have presented in a reliable fashion. For example, Dr. Kleiman found Mr. Salman to be a “genuine and reliable historian.” Dr. Steiner found him to be “open and forthcoming”, “cooperative”, and “not evasive, manipulative….” Dr. Levitt found Mr. Salman to be “forthcoming”, and that “[h]is presentation, while dramatic at times, [was] culturally consistent as well as consistent with his complex of severe psychological disorders, and not indicative of an attempt to feign or mislead.” Dr. Levitt stated that Mr. Salman was “neither exaggerating nor malingering” and presented with “frank psychopathology.” Dr. Levitt also testified that Mr. Salman’s description of his pain to the assessors was consistent, and that the fact that he was undergoing regular nerve block injections to lessen his pain was “not typical of feigning.” Dr. Gerber reported that there was “nothing during [his] assessment…to indicate that [Mr. Salman was] in any way purposely presenting himself as being worse off than he actually [was].”

The only assessor to have raised significant concerns regarding Mr. Salman’s credibility was Dr. Reznek. However, as noted by both Dr. Levitt and Dr. Gerber, and as corroborated by Mr. Salman’s family physician, Dr. Blumenfeld, Dr. Reznek’s finding that Mr. Salman suffered from “chronic back pain” prior to the accident was not borne out by the pre-accident medical documentation, since other than brief mentions of back pain in the mid-1990’s and before, and to back pain in 2002, nothing in the medical records suggests that Mr. Salman had ongoing back pain in the months and years leading up to the 2008 motor vehicle accident.

Dr. Reznek also found Mr. Salman’s results on validity testing to have undermined the reliability of his complaints. However, I accept Dr. Levitt’s evidence that Dr. Reznek’s reliance on the SIMS test was misplaced because it did not take into account Mr. Salman’s English proficiency level, it was not done in conjunction with the SERS test, and (as also observed by Dr. Rockman) validity testing ought not to be used in isolation to confirm that a person is, in fact, malingering.

I also find significant that, despite his conclusion that Mr. Salman was exaggerating his symptoms for gain, Dr. Reznek acknowledged that the evidence of Mr. Salman’s neighbours undermined his finding of malingering, and he felt that Mr. Salman did have “some real impairment.”

The only other assessor to question Mr. Salman’s credibility was Dr. Tountas. However, as an orthopaedic surgeon, Dr. Tountas was only qualified to assess Mr. Salman from a physical perspective, and, therefore, his conclusion that there was “nothing seriously wrong” with Mr. Salman, which was based on findings of “pain behaviour”, “functional overlay” and lack of cooperation, did not, and could not, take into account Mr. Salman’s significant psycho-emotional response to the accident. I accept Dr. Levitt’s and Dr. Gerber’s view that Dr. Tountas’ findings of functional overlay and lack of cooperation were a function, not of Mr. Salman’s unwillingness to participate in the assessment, but of his unexpectedly intense pain symptoms. And, as with Dr. Reznek, Dr. Tountas did not have a complete picture of Mr. Salman’s condition following the accident. I find that that picture was consistently and reliably reported by the lay witnesses in this case, which confirmed Mr. Salman’s evidence of significantly diminished ability following the accident, from a physical, psycho-emotional and social perspective.

I find that Mr. Salman provided generally consistent and reliable evidence at the hearing. While there were some discrepancies, I do not find these to be significant. For example, while Mr. Salman stated both that his childhood epilepsy resolved in his youth and that he suffered some seizures in 1993, none of the medical documentation (including that of Dr. Blumenfeld) establishes that this was in any way an ongoing problem prior to the accident.

Both Mr. Salman and his brother, Amnon, stated that he returned to work approximately two weeks after the accident. However, Mr. Salman’s Application for Accident Benefits suggests that he was able to return to work two days after the accident. I accept Mr. Salman’s explanation that, although he signed the Application, he did not fill it out, and that, for example, he does not use terms such as “third party”, as appears in the description of the accident in the Application.

I accept the unchallenged view of Drs. Gerber, Levitt and Rockman that the fact that Mr. Salman was somewhat active after the accident (being able to drive and travel on a few occasions) was not indicative of significant ability and/or an attempt to mislead, but rather consistent with both the more general deterioration he experienced post-accident and the medical advice he received to remain active.

Finally, the Insurer introduced a surveillance report from Centric Investigation Services Inc., containing photographs and observations of Mr. Salman in May 2012. The Insurer did not call the investigators to testify, and did not introduce the videotapes associated with the report. The report, itself, does not differ in any material way from the evidence provided by Mr. Salman, the assessors or the lay witnesses. I give it no weight.

In all of the circumstances, therefore, I find that Mr. Salman has provided credible and reliable evidence of his accident-related impairments.

I return, then, to the three-step process set out in Pastore to determine Mr. Salman’s substantive claim of catastrophic impairment.

(b) Mr. Salman’s Substantive Claim of Catastrophic Impairment

With respect to the first branch of the test, namely, the diagnosis of any mental disorders, I find that Mr. Salman suffered significant psycho-emotional injuries as a result of the accident. Contrary to Dr. Reznek’s view, I agree with Dr. Gerber that the accident did raise a threat of serious bodily harm, given Mr. Joseph’s evidence that there was a “big boom” upon impact and that the front of the car was “completely crashed”, given the significant monetary damage to the two cars involved, given that both Mr. Salman and Mr. Joseph reported being “shocked” after the incident, and given Mr. Joseph’s evidence that he, himself, was hurt in the accident. I accept Dr. Levitt’s uncontested evidence that it is not uncommon for a person in shock after an accident to experience pain a few hours later (as Mr. Salman reported).

The medical and lay evidence establishes that Mr. Salman was well and active before the accident. Based on this evidence, I agree with Dr. Levitt’s assessment that, while (as noted by Dr. Rockman as well) Mr. Salman may have been an emotionally vulnerable individual prior to the accident as a result of experiencing a suicide bombing in Israel and while he may have suffered from post-traumatic stress disorder as a result, this condition was likely in remission prior to the accident, and was reactivated due to the accident.

I find that Mr. Salman suffered various non-organic mental or behavioural disorders as a result of the accident. The preponderance of evidence (even from some of the assessors proffered by the Insurer) establishes that Mr. Salman suffered from Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, Post-Traumatic Stress Disorder and Major Depressive Disorder.

While Mr. Salman may have experienced other medical issues following the accident, I do not find that this alters the conclusion that he suffered various non-organic mental or behavioural disorders as a result of the accident. For example, I agree with Drs. Gerber and Levitt that Mr. Salman’s sleep difficulties were at least materially contributed to by his pain and emotional condition following the accident, rather than being primarily, if not solely, a function of his sleep apnea. And while Mr. Salman may have been involved in two subsequent motor vehicle collisions, these appeared to have been minor, with no material effect on his previous accident-related condition. I note that Dr. Rockman testified that Mr. Salman’s third accident did not worsen Mr. Salman’s condition.

The evidence is also overwhelming that the accident had a significant impact on Mr. Salman’s daily life. As noted earlier, the AMA Guides indicate that the assessment of an impairment due to mental or behavioural disorder is to be done in relation to four areas of a person’s functioning: (1) activities of daily living, (2) social functioning, (3) concentration, persistence and pace, and (4) deterioration or decompensation in work or work-like settings. I find that Mr. Salman’s accident-related injuries affected him in each of these areas. He was gainfully employed as a truck driver, and physically and socially active before the accident. As described in detail by both Mr. Salman and the various lay witnesses to testify, Mr. Salman’s psycho-emotional problems after the accident have resulted in his leading a significantly diminished life.

The final step in the analysis is to determine the level of Mr. Salman’s impairment. The AMA Guides set out a range of impairment levels, from Class 1 (no impairment) to Class 5 (extreme impairment). Pursuant to section 2(1.2)(g) of the Schedule, and the decision in Pastore, Mr. Salman must establish that he suffered at least a Class 4 impairment (marked impairment) in at least one of the four areas of functioning.

The only assessor to have squarely addressed the issue of catastrophic impairment at the request of the Insurer, Dr. Reznek, found that, based on Mr. Salman’s lack of credibility, he was not suffering from a psychiatric disorder, not suffering more than a Class 1 impairment (if any impairment at all) in the relevant categories, and therefore not catastrophically impaired. However, I have rejected Dr. Reznek’s premise that Mr. Salman did not credibly report his post-accident physical and psycho-emotional symptoms. I have found that Mr. Salman suffered significant psycho-emotional problems as a result of the accident, and that these had a profound effect on his day-to-day life. While there is some difference between Dr. Gerber and Dr. Levitt as to the precise degree to which Mr. Salman was impaired following the accident, I accept their combined evidence that Mr. Salman was, at least, markedly impaired in two of the relevant categories, namely, activities of daily living and concentration, persistence and pace. Therefore, on the basis that Mr. Salman was markedly impaired in at least one of the relevant categories, I find that he was catastrophically impaired as a result of the accident, within the meaning of section 2(1.2)(g) of the Schedule.

2) Mr. Salman’s Claim for Income Replacement Benefits

Mr. Salman claims income replacement benefits, from December 15, 2008, onward, at a rate of $400 per week. Pursuant to sections 4(1) and 5(1) of the Schedule, an insured person is entitled to income replacement benefits within 104 weeks of the accident, if, as a result of the accident, he or she suffers a “substantial inability to perform the essential tasks of [his or her pre-accident] employment.” Pursuant to section 5(2) of the Schedule, an insured person is entitled to income replacement benefits after the 104-week period if he or she suffers a “complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.”

Mr. Salman maintained that, as a result of the accident, he was rendered incapable of returning to his pre-accident work as a truck driver or any reasonably suitable alternative employment. The Insurer maintained that Mr. Salman was not legitimately disabled by the accident, that he in fact returned to his pre-accident job for several months after the accident and only stopped working there as a result of financial difficulties at the company, and that in any event he was capable of returning to other suitable employment.

(i) Evidence

Mr. Salman testified that, prior to the accident, he typically worked from 7:30 a.m. to 5:00 p.m. each day, but that, regardless of the number of hours he worked, he was paid the same wage, namely, $1,000 a week. Mr. Salman’s brother, Amnon (for whom Mr. Salman worked), testified that Mr. Salman drove a small truck to deliver various goods within Toronto and to cities such as Guelph and Kitchener. He said that Mr. Salman woke up early, and sometimes in the middle of the night, to make the required deliveries. Amnon confirmed the payments made to his brother each week.

Mr. Salman said that he returned to work shortly after the accident, but that, because of his neck and back pain, as well as his fear of being in another accident, he had significant difficulty driving a truck. Amnon said that Mr. Salman stayed home approximately two to three weeks after the accident, and that, when he returned, he could not do even small delivery jobs, and was consequently given simple tasks such as calling customers, paperwork and going to the bank. Amnon said that he tried to keep his brother at his business, thinking that he would improve, but that he got progressively worse. Despite a change in duties after the accident, Mr. Salman continued to receive the same weekly wage until December 2008, when, because of a lack of business at the company, he was laid off.

Mr. Salman testified that he subsequently attempted to do other work, such as selling cars and selling water purification units, but that he could not do these jobs properly and was terminated, because of his pain. He did not work after September 9, 2009, due to his increasing pain and depression. Amnon said that Mr. Salman tried to work at different jobs, such as a travel agency and a car dealership, but that he could not cope.

On October 29, 2009, Dr. C. Paitich, an orthopaedic surgeon who saw Mr. Salman at the request of the Insurer, reported that Mr. Salman’s impairment was “in association with a multiplicity of non-organic features and his stated level of function at this time is not at all consistent with what is expected based on the duration of time that has elapsed since his injury.” Dr. Paitich diagnosed Mr. Salman as having suffered a “medial meniscal tear in association with a myofascial strain injury involving the cervical spine and the lumbar spine”, and that, because Mr. Salman “clearly indicated…that the limiting factor to his return to work at full time hours and full duties was that of ongoing neck pain and back pain and not his knee pain”, he was not disabled from his pre-accident job because of the accident.

On November 27, 2009, Dr. Blumenfeld reported that, as of the date of the accident, Mr. Salman was substantially unable to perform his pre-accident employment, explaining that he used to drive a van, was then re-assigned to an office job, and was laid off in December 2008 “due to lack of work.”

On December 15, 2010, Dr. Wilderman, the pain consultant to whom Dr. Blumenfeld had referred Mr. Salman shortly after the accident, completed a Disability Certificate, indicating that Mr. Salman suffered from chronic pain, was substantially disabled from performing the essential tasks of his pre-accident employment.

On January 7, 2011, Dr. S. Dharamashi, a general physician, reported that, while Mr. Salman did “present with significant disabilities and functional limitations” (restricted in heavy activities such as lifting, and prolonged and repetitive activities such as bending, sitting and reaching), and was disabled from his pre-accident employment, he was not prevented from engaging in suitable alternative employment or performing the essential tasks of daily living.

On October 17, 2011, Ms. N. Vuckovic, an occupational therapist who conducted an in-home assessment of Mr. Salman at the request of her counsel, reported that, based on Mr. Salman’s “considerable functional limitations”, he should “continue receiving income replacement benefits.”

On December 30, 2011, Mr. Salman underwent a vocational assessment at the request of the Insurer. Mr. D. Remedios, the assessing forensic vocational specialist, reported that certain occupations were considered to be suitable for Mr. Salman, but that the assessment “by no means…determine[d Mr. Salman’s] physical and/or psychological capabilities to perform the respective job duties of these vocational alternatives”, and that this question needed to “be addressed by the appropriate medical/psychological specialist.”

On June 27, 2012, Dr. Patmanidis reported that, as a result of the accident, Mr. Salman was unable to do his pre-accident work as a truck driver or any suitable alternative.

Dr. Levitt testified that Mr. Salman’s three unsuccessful attempts to return to work after the accident, and subsequent deterioration, indicated a marked impairment in adaptation and an inability to do any type of work.

Dr. Gerber testified that, due to his accident-related condition, Mr. Salman was incapable of doing either his previous job or any suitable alternative.

(ii) Findings

I find that, as a result of the accident, Mr. Salman was substantially disabled from performing the essential tasks of his pre-accident employment or any reasonably suitable alternative employment.

While Mr. Salman was able to return to some form of employment following the accident, this was not his pre-accident job of truck driver, which involved driving considerable distances, physical work of loading and unloading, and occasionally waking up in the middle of the night to do deliveries. Mr. Salman had the good fortune of working for his brother, who reassigned him to very limited office/administrative tasks following the accident. Based on the demanding nature of Mr. Salman’s pre-accident job, the preponderance of medical evidence concerning the severity of his physical/psycho-emotional reaction to the accident (Dr. Paitich, in particular, having an overly narrow understanding of Mr. Salman’s disability and limitations), as well as his brother’s evidence of his progressively worsening condition, I find that Mr. Salman was substantially disabled from performing his previous work as a truck driver.

Mr. Salman claims income replacement benefits as of the date he was laid off from his brother’s company. While Mr. Salman continued to receive the same salary during the time he continued to be employed by his brother, I find that his role at the company had been significantly diminished, to the point that he could not reasonably be considered to be gainfully employed there. Thus, while his formal position at the company ended in December 2008 as a result of a decline in business, I find that in the first two years following the accident, Mr. Salman remained incapable of performing his pre-accident employment.

I further find that, since the two-year mark, and as a result of the accident, Mr. Salman suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. Mr. Salman was catastrophically impaired as a result of the accident. As corroborated by his brother, Mr. Salman attempted to do other jobs after he was laid off, but could not cope, from either a physical or emotional perspective. In light of Mr. Salman’s actual experience following the accident, as well as those assessors who took into account not only his physical, but psycho-emotional, problems after the accident, I do not accept Dr. Dharamashi’s conclusion, as a general physician, that Mr. Salman’s admitted “significant disabilities and functional limitations” did not prevent him from performing suitable alternative employment. Similarly, Mr. Remedios’ report that there were other occupations that were suitable for Mr. Salman was only a general vocational conclusion, dependent entirely on the medical evidence of the nature and extent of Mr. Salman’s physical and psycho-emotional limitations. This evidence, represented most persuasively by the opinions of Drs. Patmanidis, Levitt and Gerber, establishes that Mr. Salman has been severely disabled as a result of the accident, and is incapable of performing either his previous job or any reasonably suitable alternative.

At the conclusion of the hearing, the Insurer submitted that Mr. Salman was disentitled to income replacement benefits on the basis that he had not filed income tax returns in respect of his pre-accident employment until well after the accident, and that those tax filings were, in all of the circumstances of this case, unreliable. The Insurer cited sections 64.1(1) and (2) of the Schedule, which, in part, state as follows:

64.1(1) …[for the purposes of determining the quantum of income replacement benefits] the person’s income…shall be determined…without reference to any income the person has failed to report contrary to [the Income Tax Act]….

64.1(2) …for the purposes of subsection (1), the amount of the income may be adjusted to reflect any change in the amount of the person’s income reported or determined in accordance with the Income Tax Act….

The Insurer argued that, although adjustments to a person’s income based on subsequent tax filings are permitted in the calculation of income replacement benefits, they are not mandatory, and must take into account the reliability of the insured’s financial evidence as a whole. The Insurer referred to the case of Piche and Allstate Insurance Company of Canada (FSCO A05-002263, March 6, 2008), upheld on appeal (FSCO Appeal P08-00013, November 4, 2009), which suggested that the reliability of an insured’s subsequent tax filings must be considered in determining whether to use that information in fixing the amount of any income replacement benefits to which the person might be entitled. The Insurer maintained that Mr. Salman’s post-accident tax filings were unreliable because he had only filed returns for 2007 and 2008, not back to 2004, when his employment was supposed to have begun with Gans Trucking, and because Gans Trucking was not an arm’s length employer.

I do not accept that Mr. Salman is disentitled to income replacement benefits, by virtue of section 64.1 of the Schedule. While Mr. Salman may have filed tax returns only in respect of the year in which the accident took place and the preceding year, it was reasonable for him to do so, given that this was the relevant time frame for calculating income replacement benefits, and given that there was no obligation for him to file earlier returns. And while Mr. Salman may have worked at his brother’s company, I accept his counsel’s written submissions that the totality of his financial evidence (including bank records, a company printout of cheques paid, an Employer’s Confirmation of Income and the testimony of his brother and Joshua Drury) is consistent and uncontroverted in showing the relevant period of employment and weekly wages.

Therefore, based on all of the evidence, I find that Mr. Salman is entitled to income replacement benefits from December 15, 2008, onward, at a rate of $400 per week. The parties agreed, and I accept, that, pursuant to the arbitration appeal decision in Uribe and Wawanesa Mutual Insurance Company (FSCO Appeal P09-00021, February 5, 2010; application for judicial review dismissed, 2010 ONSC 5904, [2010] O.J. No. 4642, (Ont. S.C.J., Div. Ct.)), interest on these benefits is only payable from the date of the Canada Revenue Agency assessment of Mr. Salman’s post-accident tax filing, namely, February 4, 2011.

3) Mr. Salman’s Claim for Attendant Care Benefits

Mr. Salman claims attendant care benefits, from October 17, 2011, (the date of Ms. Vuckovic’s Assessment of Attendant Care Needs (Form 1)), onward, at a rate of $6,000 per month. Pursuant to section 16 of the Schedule, an insurer is required to pay reasonable and necessary expenses, as a result of an accident-related impairment, incurred by a person for an attendant. Pursuant to section 16(4) of the Schedule, the monthly amount payable for attendant care is to be determined in accordance with a Form 1. Pursuant to section 16(5), the amount of attendant care benefits is a maximum of $6,000 per month for individuals who have sustained a catastrophic impairment as a result of the accident.

Mr. Salman maintained that, as a result of the injuries he suffered in the accident, he was rendered incapable of taking care of his basic personal needs, and required the assistance of a full-time attendant. The Insurer maintained that Mr. Salman was not legitimately disabled by the accident and did not require attendant care assistance.

(i) Evidence

Mr. Salman testified that, as a result of the accident, he has significant difficulty taking care of himself. He introduced into evidence a series of photographs showing the state of his apartment, which is clearly a mess and has not been cleaned for some time. He said that, due to his lack of concentration following the accident, he has forgotten to turn off the stove a few times. He said that he spends approximately 12 hours a day in bed because of his lack of energy. He is able to take a shower, but is afraid of falling (having fallen once, with no one around to help him), and often forgets to wash his hair. He has difficulty cutting his nails and sometimes goes to a manicurist. He also said that he forgets to brush his teeth, and occasionally misses the alarm to take his medications. He said that there are often fire alarms in his building, but that he does not leave his apartment because he cannot walk down the stairs from the fifth floor where he lives; he waits to see if there is the smell of smoke. He has a small dog, and is able to take him downstairs on the elevator to let him out to do his business. His neighbour, Artem Kavarzin, said he has seen Mr. Salman going out in his pyjamas to walk his dog, and that he tries to help him to do this. Mr. Kavarzin also tries to visit Mr. Salman regularly. Mr. Salman’s brother, Amnon, said that Mr. Salmon became very weak after the accident, did not clean his apartment and needed to be reminded to eat.

Mr. Salman testified that he drives when he feels well enough to do so, and can sometimes drive himself to his doctors’ appointments and to buy groceries. He said that he uses an alarm in his cellphone to remind him of his appointments and when to take his medication. Mr. Salman said that he has a number of friends, but rarely sees them, and that they sometimes come over to watch television. He also occasionally goes out with his neighbour, Mr. Kavarzin.

Shortly after the accident, Mr. Salman began to see Dr. E. Hayes, a chiropractor, and in June 2008, Dr. Hayes conducted an in-home assessment and prepared a Form 1. Dr. Hayes reported that “[a]ctive exercise [would] be extremely beneficial in enabling [Mr. Salman] to return to full functional tolerance and pain free status, and Attendant Care benefits for exercise are therefore… recommended.” In the Form 1, Dr. Hayes only filled in the portion regarding the provision of assistance for exercise, recommending three 30-minute sessions per week, which was calculated to be $115.97 per month in attendant care.

On December 4, 2008, Dr. Paitich reported as follows:

Mr. Salman was not found to have any objective clinical findings, his impairment was in association with a multiplicity of non-organic features and his stated level of function at this time is not at all consistent with what is expected based on the duration of time that has elapsed since his injury….I do not feel this man has an impairment that is disabling him from his pre-accident activities of normal life. I do not feel he is currently completely unable to engage in his activities of normal life as a result of injuries sustained in his motor vehicle accident.

In a further report, dated October 29, 2009, Dr. Paitich reiterated this view, but stated that Mr. Salman suffered a “medial meniscal tear in association with a myofascial strain injury involving the cervical spine and the lumbar spine” and that his symptomatology was “not entirely supported by organic findings.”

On December 15, 2010, Dr. Wilderman completed a Disability Certificate, indicating that Mr. Salman suffered from chronic pain and suffered a complete inability to carry on a normal life.

On October 17, 2011, Ms. Vuckovic reported that Mr. Salman required round-the-clock assistance, supervision and support due to his personal hygiene, mobility and cooking limitations, his social isolation, and his inability to safely and effectively respond to emergency situations. Ms. Vuckovic recommended 722.4 hours of assistance per month, for a monthly sum of $6,612.46.

On September 26, 2011, Dr. Gerber reported as follows:

[Mr. Salman] is partially disabled with regard to self-care activities, given just how long it takes him to do basic things like dressing and showering.

Although Mr. Salman completes his own self-care and personal hygiene activities, it takes him an inordinate amount of time to do so. He has problems with ambulation. He walks slowly and is in pain. He is anxious when travelling. His sexual functioning has been significantly negatively affected. He has problems with sleep. He is extremely limited in terms of his social and recreational activities.

Therefore, with regard to activities of daily living, my assessment of Mr. Salman is that he is markedly impaired, meeting criteria for a Class 4 (Marked Impairment) determination because according to the AMA Guidelines, his “impairment levels significantly impede useful functioning.”

(emphasis in original)

Dr. Gerber also reported that Mr. Salman was markedly impaired in concentration, persistence and pace, and at least moderately impaired in social functioning, and between moderately and markedly impaired in work-like settings.

On June 27, 2012, Dr. Patmanidis (who prepared a second report at the request of Mr. Salman’s previous counsel) stated that, as a result of the accident, Mr. Salman required attendant care of a “minimum of three hours a day.”

(ii) Findings

I find that Mr. Salman is entitled to attendant care benefits from the date of Ms. Vuckovic’s Form 1, October 17, 2011, onward, at a rate of $6,000 per month.

Mr. Salman was catastrophically impaired as a result of the accident. As indicated by Mr. Salman, and as documented, for example, by Dr. Gerber and Ms. Vuckovic, Mr. Salman’s daily life has been fundamentally altered by the accident. Mr. Salman’s neighbours, friends and relatives have corroborated this evidence. I accept that Mr. Salman’s apartment has fallen into complete disarray, that his personal hygiene and nutrition have suffered significantly, that he is now weakened and socially isolated as a result of the accident and that his physical and psycho-emotional problems have presented a number of dangerous and life-threatening situations for him. Based on his own evidence of the nature of his travels following the accident, as well as that of Dr. Levitt and Amnon Salman, I do not find that his post-accident trips significantly alter the extent of the impairments he suffered. I accept that, as a result of these impairments, he requires significant attendant care.

Regarding the degree to which he requires assistance, I do not find Dr. Hayes’ Form 1 recommendation of $115.97 per month to be relevant. Dr. Hayes saw Mr. Salman within a few months of the accident, when Mr. Salman’s condition was not as severe, and he did not squarely address the issue of Mr. Salman’s personal care needs. Dr. Hayes was focussed on Mr. Salman’s physical rehabilitation needs, and specifically his need to be assisted with physical exercise.

I do not accept Dr. Paitich’s reports that Mr. Salman was not disabled from his daily activities as a result of the accident, since Dr. Paitich was only qualified in the area of orthopaedic surgery, was unable to opine on the nature and significance of Mr. Salman’s non-organic pathology, and did not specifically address the issue of Mr. Salman’s personal care needs.

While Dr. Gerber and Dr. Patmanidis suggested that Mr. Salman might not require a significant amount of attendant care, I do not find that their reports actually support this conclusion. While Dr. Gerber indicated that Mr. Salman was “partially disabled” with respect to self-care activities, he felt that Mr. Salman took an inordinate amount of time to perform these tasks, he did not specifically address the extent to which Mr. Salman might require attendant care assistance (focussing more on the general issue of catastrophic impairment than the need for attendant care), and, in any event, found that Mr. Salman was markedly impaired with respect to the activities of daily living, and concentration, persistence and pace, as well as at least moderately impaired in social functioning. Similarly, Dr. Patmanidis simply referred to Mr. Salman requiring a “minimum of three hours a day” of attendant care, without indicating the type of attendant care he needed and in respect of which of his impairments. Dr. Patmanidis’ report was extremely summary in nature.

I prefer to rely on Ms. Vuckovic’s report as more precisely and comprehensively addressing Mr. Salman’s attendant care needs. Ms. Vuckovic understood the breadth of Mr. Salman’s impairments and specifically addressed them in relation to the various categories of attendant care available to him, for example, dressing, undressing, bathing, grooming, feeding, mobility, basic supervisory care, and monitoring medication. The most significant component of Ms. Vuckovic’s attendant care recommendations was in relation to basic supervisory care, which referred to the “applicant lack[ing the] ability to respond to an emergency or need[ing] custodial care due to changes in behaviour.” Based on the deterioration in Mr. Salman’s life and the precariousness of his personal situation following the accident, I find Ms. Vuckovic’s recommendation for extensive supervisory care to be reasonable.

The only caveat to my acceptance of Ms. Vuckovic’s recommendations is her suggestion of approximately 2 hours per day of what is essentially housekeeping assistance (for cleaning the bathroom, bedroom and clothes). In my view, this is more appropriately addressed in the context of Mr. Salman’s claim for housekeeping benefits. In any event, reducing the amount of recommended attendant care by the amount designated for this area would not change the dollar amount of Mr. Salman’s claim for attendant care benefits, since even without this component, Ms. Vuckovic’s recommendations would still (slightly) exceed $6,000 per month.

In all of the circumstances, therefore, I find that Mr. Salman is entitled to attendant care benefits at the rate of $6,000 per month, from October 17, 2011, onward.

4) Mr. Salman’s Claim for Housekeeping Benefits

Mr. Salman claims housekeeping benefits and home maintenance benefits, from April 24, 2008, onward, at a rate of $100 per week. Pursuant to section 22 of the Schedule, an insurer is required to pay for reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. Pursuant to sections 22(3) and 22(4), a person is eligible for housekeeping benefits beyond the two-year mark, if they have sustained a catastrophic impairment as a result of the accident.

The substantive test of entitlement for housekeeping benefits is set out in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006):

…the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.

(i) Evidence

Mr. Salman testified that, as a result of the accident, he is unable to do his housekeeping tasks, such as picking up his clothes from the floor to wash, take out large bags of garbage, do full grocery shopping or vacuuming. He described himself as having a “mental block”, as “hav[ing] to lie down” and as being a “prisoner in my own body.” His neighbour, Mr. Kavarzin, testified that he goes with Mr. Salman to help him with grocery shopping. Mr. Salman said that he had a cleaning lady until sometime before the accident, who worked one day a week, cleaning the apartment. He said he also cleaned his apartment before the accident and that it was spotless. He said he had a cleaning lady after the accident for approximately 2 years, and submitted receipts to the Insurer, but that since 2011 he has not had anyone, and his apartment has become filthy. The photographs he provided show his apartment to be in a disturbing condition.

Mr. Kavarzin testified that, in approximately December 2011, he began to help Mr. Salman to take out his garbage and walk his dog, and noticed that his apartment was “extremely dirty.”

On February 8, 2008, Dr. Hayes reported that Mr. Salman suffered a substantial inability to perform his pre-accident housekeeping duties, “requir[ing] assistance with the majority of chores due to severity of physical [symptoms].” On June 5, 2008, Dr. Hayes conducted an in-home assessment of Mr. Salman, and reported that, as a result of the accident, Mr. Salman suffered injuries to his “neck and lower back which has led to functional deficits resulting in a[n] inability to perform his pre-accident housekeeping and home maintenance tasks.” Dr. Hayes recommended various assistive devices, as well as housekeeping assistance of 10-12 hours per week of the 25 hours per week of housekeeping Mr. Salman did before the accident.

On September 8, 2008, Dr. A. Mere, a chiropractor who saw Mr. Salman at the request of the Insurer, reported that Mr. Salman did not require housekeeping assistance, as he “ought to have already commenced resumption [of] all of his former activities and chores in a progressive fashion” and he “must stop avoiding tasks and activities that would be reasonable and beneficial for him to pursue to hasten his recovery overall.” At the hearing, Dr. Mere acknowledged that he had not taken into account the psychological component of Mr. Salman’s condition and whether this might affect his ability to cope and to recover from his injuries. Dr. Mere also indicated that he did not feel Mr. Salman was attempting to portray himself as worse off than he actually was.

On October 29, 2009, Dr. Paitich reported that Mr. Salman did not require housekeeping assistance.

On November 27, 2009, Dr. Blumenfeld reported that, as a result of “chronic post traumatic pain” arising from the accident, and since that date, Mr. Salman suffered a substantial inability to perform his normal housekeeping tasks.

On December 15, 2010, Dr. Wilderman reported that Mr. Salman was substantially disabled from performing his normal pre-accident housekeeping tasks.

Ms. Vuckovic reported that Mr. Salman could not “be relied upon to safely and/or consistently attend to his pre-accident housekeeping tasks” (which she understood to be 13 hours per week), and recommended 9.75 hours of housekeeping per week. At the hearing, Ms. Vuckovic acknowledged that some of Mr. Salman’s housekeeping needs were addressed in her attendant care recommendations.

On September 26, 2011, Dr. Gerber reported that Mr. Salman was “substantially disabled from being able to complete the housekeeping chores that he could prior to the accident….” On cross-examination, Dr. Gerber acknowledged that he had not done a physical examination of Mr. Salman regarding his ability to perform his pre-accident housekeeping tasks.

On June 27, 2012, Dr. Patmanidis reported that, as a result of the accident, Mr. Salman was “unable to perform his pre-accident [housekeeping] duties.”

(ii) Findings

Based on the preponderance of evidence of Mr. Salman’s limitations following the accident (and for many of the reasons set out above regarding his claim for attendant care benefits), I accept that Mr. Salman required assistance to clean and maintain his apartment, as well as to do grocery shopping. The difficulty is that Mr. Salman had a cleaning lady before the accident, it is unclear how many hours she was there in the one day a week she came, Mr. Salman did not testify as to the number of hours he, himself, did before the accident (although he was clearly very conscientious about keeping his apartment clean) and based on the conflicting reports of Dr. Hayes and Ms. Vuckovic, it is again unclear how many hours of housekeeping Mr. Salman and/or his cleaning lady did before the accident. Therefore, given that the determination of entitlement to housekeeping benefits requires a comparison of a person’s pre- and post-accident housekeeping abilities, and given that I am unable to determine the extent to which Mr. Salman did housekeeping tasks before the accident, I am unable to determine Mr. Salman’s entitlement to the housekeeping benefits claimed. I find that he is not entitled to housekeeping benefits.

5) Mr. Salman’s Claim for Medical Benefits

Mr. Salman claims medical benefits for a treatment plan, dated May 25, 2012, prepared by Ms. L. Duffus, an occupational therapist, in the amount of $17,825.53, pursuant to section 14 of the Schedule. Ms. Duffus based her recommendations on Ms. Vuckovic’s in-home assessment of Mr. Salman. Pursuant to section 14(2) of the Schedule, an insurer is required to pay a medical benefit for all “reasonable and necessary expenses”, including occupational therapy services, assistive devices and transportation. Ms. Duffus noted the following as giving rise to Mr. Salman’s need for occupational therapy:

Mr. Salman continues to experience a notable decrease in his pre-injury functional abilities, translating into his ongoing inability to return to his pre-accident employment, access proper sleep, or approach/perform/meet and manage the demand of all self-care, home, pet-care, leisure and other day-to-day responsibilities in an independent, consistent, reliable or safe manner.

Based on this, Ms. Duffus stated that Mr. Salman would benefit from occupational therapy three days per week, to “participate in home and community-based rehabilitation via his identified functional occupational performance issues and day-to-day responsibilities” and which involves “functional compensatory strategies, education and relaxation techniques to improve his function in a safe manner in his home and community environment, in conjunction with efforts to re-acquaint him with at least one meaningful pre-injury activity.”

By an Explanation of Benefits, dated June 8, 2012, the Insurer denied the treatment plan, stating as follows:

As per the Insurer Examination Catastrophic Determination Multidisciplinary Assessment dated January 23, 2012, from an Occupational Therapy perspective, one would reasonably conclude that from a strictly cognitive perspective, there are no significant limitations affecting the claimant’s ability to engage in his daily activities.

Ms. R. Ghatas, an occupational therapist who had seen Mr. Salman as part of Dr. Reznek’s multidisciplinary catastrophic impairment assessment, reported that, “from a strictly cognitive perspective, there are no significant limitations affecting the claimant’s ability to engage in his daily activities”, but that Mr. Salman’s “reported complaints in relation to ‘pain’, decreased activity tolerance, psycho-emotional duress and sleep disturbances are negatively impacting on his ability to participate in his pre-accident daily activities.” Ms. Ghatas deferred to Dr. Reznek for evaluating the extent of Mr. Salman’s disability in relation to the relevant catastrophic impairment ratings.

To further assess the reasonableness of the treatment plan, the Insurer had Mr. Salman seen by Ms. T. Shaw, an occupational therapist, who, on July 20, 2012, reported as follows:

Given the complexity of the client’s medical history, time since MVA, physical and psychological treatment to date, lack of discernible benefit from treatment to date, and documented issues with symptom magnification and malingering, there is insufficient clinical justification to warrant the currently proposed occupational therapy and rehab coach intervention in relation to the indexed MVA of January 30, 2008. Should further medical clarification confirm that the client’s current clinical presentation is attributable to the indexed MVA, further occupational therapy intervention may be warranted. However, it is this clinician’s opinion that any occupational therapy/rehabilitation therapy should be provided in concert with ongoing psychological/psychiatric counselling and pain clinic treatment and in keeping with the client’s tolerances.

I find that Mr. Salman is entitled to the cost of the requested treatment plan. The Insurer relied on its multidisciplinary catastrophic determination assessment to deny the treatment plan, but, as set out earlier, I have found a number of problems with Dr. Reznek’s evidence, which was the key to the assessment. Ms. Ghatas’ portion of the assessment relied on or deferred significantly to Dr. Reznek’s findings. While Ms. Shaw reasonably pointed out that Mr. Salman had not received any discernible benefit from the treatment he had undergone, she also relied on Dr. Reznek’s unwarranted finding of malingering, she felt that occupational therapy might be reasonable if, as has in fact been found, Mr. Salman’s condition were attributable to the motor vehicle accident, and she suggested that occupational therapy would be reasonable if it were conducted in conjunction with psychological counselling and pain treatment. In this context, as well as Ms. Vuckovic’s reasonable assessment of the totality of Mr. Salman’s situation, I find the proposed treatment plan to have been reasonable and necessary.

6) Mr. Salman’s Claim for the Cost of Examinations

Mr. Salman claims the cost of three assessments, by Ms. Vuckovic, Dr. Gerber and Dr. Levitt. Pursuant to section 24(1)11 of the Schedule, an insurer must pay, in part, for “reasonable fees…charged by a member of a health profession…for conducting an assessment or examination and preparing a report if the assessment or examination is reasonably required in connection with a benefit that is claimed…, and…the insured person applied for approval of the assessment or examination either in a treatment plan…or by way of a separate application under section 38.2 [for approval of an assessment or examination not submitted as part of a treatment plan].”

Ms. Duffus submitted an OCF-18 (Treatment and Assessment Plan), dated September 11, 2011, in the amount of $1,301.54, for Ms. Vuckovic to conduct an attendant care needs assessment (with a view to preparing a Form 1 - Assessment of Attendant Care Needs). Ms. Duffus set out the basis of the assessment as follows:

…the persistence of Mr. Salman’s functional deficits (particularly that of the physical) continues to pose challenges to his pre-injury functional ability, productivity and overall independence. Appearing to be compounding this is his reportedly worsening psychosocial status, which in addition to negatively impacting his emotional wellbeing, has been thwarting his efforts to regain his pre-injury…quality of life and overall functional capacity.

In view [of this], an OT Updated Form 1 Attendant Care Needs Assessment is required, which will provide a comprehensive update on his current level of functioning and independence, as it relates to his self-care tasks. Following which, the therapist may make recommendations to address his needs, geared toward exploring avenues to increase his independence, and improve his overall quality of life.

By an Explanation of Benefits (OCF-9), dated September 19, 2011, the Insurer denied this Treatment and Assessment Plan, as “Not Reasonable and Necessary”, with an “additional comment” that, “[i]n Accordance with Section 20(2) of the Statutory Accident Benefit [sic] Schedule, no attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.”

I do not find the Insurer’s denial of Ms. Duffus’ OCF-18 to have been warranted. While the Insurer appeared to be saying that an assessment of Mr. Salman’s attendant care needs was not reasonable because he had not yet been designated as catastrophically impaired, and was, therefore, pursuant to sections 18(2) and (3) of the Schedule, not entitled to attendant care benefits beyond the 2-year mark (when the request for an attendant care assessment was made), this was not, in any direct or coherent way, conveyed in the Explanation of Benefits. The ostensible reason given for the denial of the assessment (namely, that attendant care benefits are simply not payable beyond the 104-week mark) was, in fact, incorrect (although it is true that, at the time of the request, Mr. Salman had not been found to be catastrophically impaired).

In terms of the general reasonableness of the request for an assessment, the only significant piece of evidence preceding the Insurer’s denial was Dr. Tountas’ April 2011 report, which concluded that, essentially because of “significant functional overlay”, there was “nothing seriously wrong” with Mr. Salman. I have found Dr. Tountas’ assessment of Mr. Salman to be limited and unreliable in a number of respects. I also find significant that, at the time of the Insurer’s denial of the proposed assessment, there were a number of reports indicating the psycho-emotional component of Mr. Salman’s disability. I find that Ms. Duffus’ recommendation for an attendant care assessment of Mr. Salman to have reasonably taken into account Mr. Salman’s general physical, psycho-emotional and social state following the accident.

In all of the circumstances, therefore, I find the proposed attendant care assessment to have been reasonable and necessary.

On the basis of Dr. Gerber’s September 2011 catastrophic impairment assessment of Mr. Salman, he submitted an Application for Determination of Catastrophic Impairment (OCF‑19), dated October 16, 2011. The only evidence before me of the cost of Dr. Gerber’s assessment is a letter from Mr. Salman’s previous counsel to the Commission and the Insurer of the “issues in dispute regarding the mediation proceeding August 1, 2012….” In respect of the amount of Dr. Gerber’s assessment, the letter simply states “$7,800.00 (invoice).” The materials introduced at the hearing appear not to contain the actual invoice for Dr. Gerber’s assessment, or an OCF-18 or OCF-22 (Application for Approval of an Assessment or Examination). While I find Dr. Gerber’s assessment and the resulting application for a catastrophic impairment determination to have been reasonable (given the preponderance of evidence concerning the nature and extent of Mr. Salman’s accident-related injuries), in the absence of any supporting documentation concerning the cost of his assessment, I am unable to award Mr. Salman any benefits for the assessment.

Similarly, Mr. Salman sought the cost of Dr. Levitt’s catastrophic impairment assessment (which was conducted at the request of Mr. Salman’s counsel), without providing any evidence of the cost of the assessment. While I have found Dr. Levitt’s report to be reasonable, and while I have relied on both his written and oral evidence in concluding that Mr. Salman is catastrophically impaired (and entitled to income replacement, attendant care and housekeeping benefits), in the absence of any supporting documentation of the cost of his assessment, I am unable to award Mr. Salman any benefits for the assessment.

7) Special Award

Pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, where an insurer has unreasonably withheld or delayed payments, an Arbitrator can, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, 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. Mr. Salman sought a special award on the basis that the Insurer unreasonably delayed payment of his requests for medication (leading to his suicide attempt) and on the basis that the Insurer’s requests for documentation pertaining to Mr. Salman’s claim for income replacement benefits were excessive. The Insurer responded that it reasonably required Mr. Salman to provide original receipts for his medications, and to provide additional supporting documentation for his IRB claim.

Philip Langford, the Insurer’s senior representative at the hearing, testified that he believed that, in approximately April 2012, the adjuster at the time, Stephanie Barton, advised Mr. Salman that without original receipts, the Insurer would not pay for his prescriptions. Mr. Langford testified that, in late 2012 or early 2013, the Insurer began to pay for Mr. Salman’s prescriptions directly to the pharmacy, but that it was unclear from the Insurer’s records when, in fact, this began, and whether it was after Mr. Salman’s suicide attempt. Mr. Langford stated that there was nothing in the Insurer’s notes to the effect that (as maintained by Mr. Salman) Dr. Patmanidis had called the Insurer to implore them to pay for the disputed prescriptions. Mr. Langford suggested that other than the limited opinions the Insurer had received concerning Mr. Salman’s physical ability to return to work, there was no significant information concerning the severity of his psycho-emotional state, although Mr. Langford did indicate that the Insurer continued to pay for Mr. Salman’s psychiatric medication despite Dr. Reznek’s questioning of the legitimacy of Mr. Salman’s complaints.

I find that the Insurer unreasonably delayed payment of Mr. Salman’s medications. While, on the basis of the limited evidence before me, it is unclear whether, in fact, Dr. Patmanidis called the Insurer urging them to resume coverage of Mr. Salman’s psychiatric prescriptions, Mr. Salman’s suicide attempt was related to the non-payment of these medications, or the Insurer began paying for the prescriptions again as a result of Mr. Salman’s suicide attempt, I find that there was sufficient information available to the Insurer to conclude that it was important for Mr. Salman to continue receiving payment for the disputed medications, despite the absence of original receipts and pending the new payment arrangement with the pharmacy.

At the very least, the Insurer was in possession of Dr. McCutcheon’s August 2010 report that Mr. Salman was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Dr. Reznek’s June 2011 report that Mr. Salman was suffering from an Adjustment Disorder which might be partially related to the accident. While some of the assessors had raised concerns regarding the legitimacy of Mr. Salman’s complaints, the Insurer was sufficiently concerned with his condition that it chose to cover the costs of his pain and psychiatric medication. Until 2012, the Insurer had not advised Mr. Salman either that he was not entitled to this medication or that original receipts were required for payment. I find that the Insurer ought to have either formally denied Mr. Salman’s entitlement to the disputed prescriptions or take the steps ultimately taken to institute a new payment plan without any interruption in coverage.

Regarding the Insurer’s request for supporting documentation for Mr. Salman’s IRB claim, while a number of requests were made, I do not find these to have been excessive or otherwise improper, particularly in light of legitimate questions concerning Mr. Salman’s pre- and post-accident employment and income situation, which with the use of the documents received needed to be explored and clarified at the hearing.

While I find that the Insurer unreasonably denied or delayed the payment of Mr. Salman’s medication, and while this may have caused Mr. Salman considerable distress, I am unable to conclude, based on the evidence available to the Insurer at the time (which raised legitimate questions concerning the veracity of Mr. Salman’s complaints), that the Insurer’s non-payment of benefits was sufficiently egregious to warrant a significant special award. I note, as well, that Mr. Salman’s entitlement to medical benefits for prescription medication was not, in fact, at issue in this arbitration, and that there is no other evidence before me of unreasonable or improper conduct on the part of the Insurer.

Therefore, while the benefits which were disputed in this arbitration, and to which I have found Mr. Salman entitled (including, as discussed below, the interest flowing from these benefits) are very substantial, I find that Mr. Salman is only entitled to a very modest special award in respect of the non-payment of medications. The evidence before me suggests that the prescriptions not paid were perhaps $1,000-2,000 in value, and that they were not paid for perhaps a few months. In attempting to achieve a reasonable balance between the specific benefits denied, the circumstances under which they were withheld and the relative importance of this to the actual benefits disputed and awarded in this arbitration, in all of the circumstances, I find that a special award of $5,000 is warranted.

8) Interest

Pursuant to section 46(2) of the Schedule, an insurer is required to pay interest on any amounts found to be overdue for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly. Mr. Salman sought interest on the amounts ordered to be paid. The Insurer did not dispute this. Subject to my acceptance of the parties’ position on the non-payment of interest on IRBs until February 4, 2011, I see no basis for not awarding interest in this case, and I order this accordingly.

EXPENSES:

The parties did not address the issue of expenses. If required, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

February 26, 2016

Eban Bayefsky Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 67

FSCO A11-000956

BETWEEN:

AMIR SALMAN

Applicant

and

ALLSTATE 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 determined and ordered that:

1. Mr. Salman sustained a catastrophic impairment as a result of the accident within the meaning of section 2(1.2)(g) of the Schedule.

2. Allstate shall pay to Mr. Salman income replacement benefits, from December 15, 2008, onward, at a rate of $400 per week.

3. Allstate shall pay to Mr. Salman attendant care benefits, from October 17, 2011, onward, at a rate of $6,000 per month.

4. Mr. Salman is not entitled to payments for housekeeping and home maintenance services.

5. Allstate shall pay to Mr. Salman the cost of a treatment plan, dated May 25, 2012, prepared by Ms. L. Duffus, in the amount of $17,825.53.

6. Allstate shall pay to Mr. Salman the cost of an in-home assessment, by Ms. N. Vuckovic, on October 17, 2011, in the amount of $1,301.54. Mr. Salman is not entitled to benefits for the cost of catastrophic impairment assessments by Dr. Gerber and Dr. Levitt, dated September 26, 2011 and April 3, 2014, respectively.

7. Allstate shall pay to Mr. Salman a special award, in the amount of $5,000.

8. Allstate shall pay to Mr. Salman interest on the benefits ordered to be paid, subject to interest on income replacement benefits only being payable from February 4, 2011.

February 26, 2016

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.